Anuj Kumar Singh Yadav vs The State Of Bihar And Ors

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 6409 of 2016 ====================================================== Anuj Kumar Singh Yadav Son of Late Ramashray Yadav resident of Village P.O. - Naya Bhojpur, P.S. - Dumron, District - Buxar. ... ... Petitioner/s Versus 1. The State of Bihar 2. Principal Secretary, Home Department Prison and Reforms Services Government of Bihar, Patna. 3. Joint Secretary-cum-Director Administration, Prison and Reforms Services, Home Department, Government 4. Inspector General, Prison and Reforms Services, Home Department, Government of Bihar, Patna. 5. Deputy Inspector General, Prison and Reforms Services, Home Department, Government of Bihar, Patna. 6. Superintendent, Central Jail, Motihari. 7. Superintendent, Divisional Jail, Sitamarhi. 8. District Magistrate, Sitamarhi. ... ... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Shanti Pratap, Advocate For the Respondent/s : Mr. Prabhat Ranjan, AC to GP-6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH CAV JUDGMENT Date: 23-11-2023

The present writ petition has been filed for

quashing the order dated 13.03.2015 passed by

the Inspector General Prison & Reforms Services,

Home Department, Government of Bihar, Patna i.e.

the respondent no. 4, whereby and whereunder the

petitioner has been inflicted with the punishment Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 2/31

of dismissal from service and it has been further

postulated that nothing shall be payable to the

petitioner for the period of suspension except the

subsistence allowances. The petitioner has also

prayed for quashing of the appellate order dated

24.01.2016

passed by the Principal Secretary,

Home Department, Prison & Reforms Services,

Govt. of Bihar, Patna i.e. the respondent no. 2.

Consequently, it has been prayed to reinstate the

petitioner and make payment of all the

consequential benefits.

2. The brief facts of the case, according to the

petitioner, are that the petitioner was initially

appointed as Warder by an order issued by the

Superintendent, Central Jail, Buxar, whereafter he

had joined his duties in the year 1984. During the

course of time, the petitioner was transferred and

posted at the District Jail, Sitamarhi. While the

petitioner was posted at the District Jail, Sitamarhi,

four prisoners had escaped from the jail on

17.03.2014, out of whom two of them had escaped

from Ward Nos. 1 to 4. The petitioner was, at that Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 3/31

time, in-charge of Ward Nos. 1 to 4 and was being

assisted by one Mr. Indrajeet Prasad, who was the

Ward In-Charge. Thereafter, the respondent no. 4

had issued a show cause dated 22.03.2014 to the

petitioner and he was directed to submit his

explanation within 48 hours as to why a

departmental proceeding be not initiated against

him for dereliction in duty, indiscipline &

irregularities committed by him in discharge of his

duties. The Superintendent, Divisional Jail,

Sitamarhi, had also directed the petitioner to

submit his explanation within 48 hours, vide letter

dated 22.03.2014, whereafter the petitioner had

filed his explanation before the respondent no. 4

through the Superintendent, Divisional Jail,

Sitamarhi on 3.7.2014 denying all the charges,

levelled against him and had further prayed for

exonerating him from all the charges. The

petitioner was then placed under suspension vide

Memo dated 05.04.2014, issued by the respondent

no. 4. The disciplinary authority had then framed

charges in Prapatra-"Ka", which was served upon Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 4/31

the petitioner vide letter dated 17.05.2014, inter

alia alleging therein that on the alleged date and

time of occurrence, when the petitioner was in-

charge of Ward Nos. 1 to 4, the B.M.P. constables

had entered the ward of the prisoners and after

beating them had come out, whereupon, though

the petitioner was required to count the prisoners

and close Ward Nos. 1 to 4 from outside and put

locks, however, the same was not done resulting in

the prisoners coming out of the ward and engaging

in rowdy behavior, enabling the prisoners taking

advantage of the said situation and succeeding in

escaping from the prison, which depicts gross

negligence, indifferent attitude and dereliction in

duties on the part of the petitioner.

3. The respondent no. 4 had then, vide memo

dated 02.06.2014 initiated departmental

proceedings against 10 persons including the

petitioner herein and had also appointed the

Conducting Officer as well as the Presenting

Officer. Thereafter, the petitioner had filed his

written statement of defence on 03.07.2014, Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 5/31

before the Conducting Officer and had made

request for supply of relevant documents as also

had mentioned the names of the witness, which he

wanted to examine during the course of the

departmental proceeding. The petitioner had also

pointed out that since the situation was beyond

the control of jail authorities and the prisoners had

created unruly scene as also had engaged in

scuffle, four prisoners had escaped from the jail.

The Enquiry Officer had then submitted his enquiry

report dated 14.10.2014 finding the charges

levelled against the petitioner to have been

proved. The disciplinary authority, i.e the Deputy

Inspector General, Prison & Reforms Services, had

then served a second show cause notice dt.

17.12.2014 upon the petitioner, enclosing a copy

of the findings of the Enquiry Officer and directing

him to submit his reply within a period of 15 days.

The petitioner had then filed his reply on

06.01.2015, however, the disciplinary authority i.e.

the respondent no. 4, without appreciating the

issues raised by the petitioner had, vide memo Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 6/31

dated 13.03.2015 inflicted the punishment of

dismissal from service. The petitioner had then

filed an appeal against the aforesaid order of

punishment dt. 13.03.2015, however, the same

has also been dismissed by the respondent no. 2.

4. The learned counsel for the petitioner has

submitted that no regular departmental

proceeding has been held, before inflicting a major

punishment, which is in contravention of the

provisions contained in the Bihar Govt. Servants

(Classification, Control & Appeal) Rules, 2005. It is

also submitted that relevant documents were also

not supplied to the petitioner and no opportunity of

examining the witnesses was granted to the

petitioner, hence it is submitted that the order of

punishment dated 13.03.2015 and the appellate

order dated 24.01.2016 are fit to be set aside. The

Ld. counsel for the petitioner has submitted that in

any view of the matter, quantum of punishment

inflicted upon the petitioner is disproportionate to

the gravity of the charges levelled against him,

hence on this count as well, the order of Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 7/31

punishment dated 13.03.2015 and the appellate

order dated 24.01.2016 are fit to be set aside.

5. Per contra, the learned counsel for the

respondent-State has submitted, by referring to

the counter affidavit filed in the present case, that

while the petitioner was posted as Warder at

Divisional Jail, Sitamarhi on 17.03.2014, four

prisoners had escaped from the jail premises

during the duty hours of the petitioner. The

Director, Probation and the Superintendent, Shahid

Khudiram Bose Central Jail, Muzaffarpur had

enquired into the matter and submitted a report on

21.03.2014, wherein it had been found that the

occurrence in question had taken place on account

of gross negligence of the Warders on duty

including the petitioner. In fact, thereafter another

team comprising of Deputy Development

Commissioner, Sub-Divisional Officer and Sub-

Divisional Police Officer, Sitamarhi had also

enquired into the matter and found gross

negligence on the part of the Jail Warders including

the petitioner and to the said effect an enquiry Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 8/31

report dated 19.03.2014 was submitted which was

sent to the authorities by the District Magistrate,

Sitamarhi vide letter dated 21.03.2014 and an

explanation was asked from the Warders including

the petitioner, by the I.G., Prisons vide Memo dt.

22.03.2004, to which the petitioner had submitted

his reply dated 03.07.2014. On being dissatisfied

with the reply submitted by the petitioner, he was

suspended by an order dated 05.04.2014, issued

by the I.G. Prisons, whereafter charges were

framed in Prapatra-Ka against the petitioner on

17.5.2014 & a departmental proceeding was

initiated against him vide Memo dt. 2.6.2014 as

also a Conducting Officer and a Presenting Officer

were appointed. After a full-fledged departmental

enquiry, the Conducting Officer had submitted his

enquiry report dated 14.10.2014 holding the

petitioner guilty of the allegations levelled against

him, whereafter a second show cause notice dated

17.12.2014 was issued to the petitioner, to which

the petitioner had submitted his explanation on

06.01.2015.

Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 9/31

6. The learned counsel for the respondent-State

has further submitted that the disciplinary

authority, after perusing all the documents and

reports as also the enquiry report dated

14.10.2014, submitted by the Conducting Officer,

apart from taking into account the reply submitted

by the petitioner and upon application of mind had

then passed the order of punishment of dismissal

from service dated 13.03.2015, wherein it has also

been postulated that the petitioner shall not be

entitled to anything else except the subsistence

allowance for the period of suspension. Thereafter,

the petitioner had filed an appeal before the

Principal Secretary (Home), Bihar, Patna which has

stood dismissed by an order dated 24.01.2016, as

communicated to the petitioner vide Memo dt.

27.01.2016. It is also submitted that the petitioner

has himself admitted the charges levelled against

him, not only before his Controlling Officer but also

before this Hon'ble Court as would be apparent

from paragraphs no. 10 & 20 to the writ petition. It

is also submitted that there is no procedural Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 10/31

irregularity in conduct of the disciplinary

proceeding, hence this Court would not sit in

appeal and re-appreciate the evidence, thus

considering the fact that there are ample materials

on record to suggest the complicity of the

petitioner in the alleged occurrence, no sympathy

ought to be shown to the petitioner.

7. I have heard the learned counsel for the

parties and perused the materials on record, from

which it is clear that the departmental proceedings

has been conducted in accordance with law,

hence, this Court can neither appreciate the

evidence nor interfere with the conclusion of the

enquiry. Moreover, this Court finds that not only

the enquiry has been held by the competent

authority and in accordance with the procedure

established by law but the enquiry officer has also

found sufficient evidence to arrive at a finding of

guilt qua the petitioner. Since, in the present case,

this Court does not find any infirmity in the

procedure followed by the disciplinary authority as

also it does not find that there has been any Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 11/31

violation of the principles of natural justice, this

Court does not find any reason to interfere with the

disciplinary proceedings in question. Thus, there

being no illegality in the conduct of the

departmental proceedings, there is no occasion to

interfere with the conclusion of the disciplinary

authority.

8. At this juncture, this Court would refer to a

judgment rendered by the Hon'ble Apex Court in

the case of Union of India & Ors. vs. P.

Gunasekaran, reported in (2015) 2 SCC 610,

paragraph nos. 12, 13, 14, 15, 16, 20 & 21 whereof

are reproduced herein below:-

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 12/31

powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations

extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 13/31

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

14. In one of the earliest decisions in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723], many of the above principles have been discussed and it has been concluded thus:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 14/31

evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 15/31

that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

15. In State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paras 21-24, which read as follows: (SCC pp. 561-63)

"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723].

First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 16/31

enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted & which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 17/31

and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.

22. Again, this Court in Railway Board v.

Niranjan Singh [(1969) 1 SCC 502] said that the High Court does not interfere with the conclusion of the

disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case [(1969) 1 SCC 502] this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shutdown of an air compressor at about 8.15 a.m. on 31-5- 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 18/31

of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.

23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 19/31

the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.

(See Syed Yakoob v. K.S. Radhakrishnan).

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 20/31

is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

16. These principles have been succinctly summed up by the living legend and centenarian V.R. Krishna Iyer, J. in State of Haryana v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalleled and inimitable expressions:

"4. ... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities & administrative tribunals must be careful in evaluating such material and should Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 21/31

not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good."

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is "moral Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 22/31

uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values.

21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749], Union of India v. G. Ganayutham [(1997) 7 SCC 463], Om Kumar v. Union of India [(2001) 2 SCC 386], Coimbatore District Central Coop. Bank v. Employees Assn. [(2007) 4 SCC 669], Coal India Ltd. v. Mukul Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 23/31

Kumar Choudhuri [(2009) 15 SCC 620] and the recent one in Chennai Metropolitan Water Supply [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108]."

9. As regards the issue about documents having

not been supplied to the petitioner and the

petitioner having not been granted opportunity to

examine witnesses, this Court finds that the

petitioner has failed to produce any proof to the

effect that he had made any application with

regard to the same separately, nonetheless,

another aspect of the matter is that the petitioner

has also failed to show as to what prejudice has

been caused to him in case any document had not

been made available to him, hence the petitioner

cannot derive any benefit on this score. This Court

also finds that the findings arrived at by the

Conducting/Enquiry Officer in his enquiry report

dated 14.10.2014 are not patently perverse or

grossly incompatible with the facts and

circumstances of the case, hence no interference is

warranted. In this connection, it would be relevant Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 24/31

to refer to a judgment rendered by the Hon'ble

Apex Court in the case of Union of India & Ors.

vs. Subrata Nath, reported in 2020 SCC Online

SC 1617.

10. It is a well settled law that departmental

enquiries are not like trials being conducted by the

Civil Courts and only documentary evidence,

copies whereof have already been supplied to the

delinquent can definitely be the basis of the

findings of the Enquiry Officer/disciplinary

authority. Reference in this connection be had to a

judgment rendered by the Hon'ble Apex Court in

the case of Tara Chand Vyas vs. Chairman and

Disciplinary Authority & Ors., reported in

(1997) 4 SCC 565. It is equally a well settled law

that when the genuineness of the documents is not

questioned by the delinquent, there is no need to

examine witnesses in support thereof. In this

connection, reference be had to a judgment

rendered by the Hon'ble Apex Court in the case of

Director General, Indian Council of Medical

Research & others vs. Dr. Anil Kumar Ghosh Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 25/31

and another, reported in (1998) 7 SCC 97.

11. As regards the contention of the learned

counsel for the petitioner, to the effect that the

punishment of dismissal from service is harsh, this

Court finds that the petitioner is a member of a

disciplined Force, hence, he was expected to follow

the rules and any abrasion and/or deviation in

discharge of his duties would definitely entail a

punishment of dismissal and the same cannot be

stated to be shocking to the conscience of the

Court, hence, there is no scope of interference as

far as the quantum of punishment is concerned. In

this regard, this Court would refer to a judgment,

rendered by the Hon'ble Apex Court in the case of

Union of India & Others vs. Diler Singh,

reported in (2016) 13 SCC 71, paragraphs no. 22

to 27, whereof are reproduced herein below:-

"22. The aforesaid analysis reveals that the Division Bench has clearly held that the delinquent employee, being a member of the Force, could not have left the camp without prior permission. It has also opined that when a personnel is posted in a camp, he is not Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 26/31

free to move as per his choice even during the period when he is not on duty. However, as is manifest, the Division Bench has opined that the imposition of dismissal as a punishment, which is a major one, could not have been imposed by the disciplinary authority. The said opinion has been expressed without referring to the position of law that has been clearly laid down in Ghulam Mohd. Bhat [(2005) 13 SCC 228]. Thus, the basic premise is erroneous.

23. In the impugned order, the writ court has, after reproducing the passage from Akhilesh Kumar, opined that the controversy is covered by the judgment rendered by the High Court of Calcutta. It is extremely significant to note that the learned Single Judge has not even made an effort to appreciate the decision in Ghulam Mohd. Bhat though the same was relied upon by the learned first appellate Judge. Thrust of reasoning of the first appellate court was that a major punishment of dismissal could be imposed in law. It is quite unfortunate that the High Court has dislodged the finding without any analysis but reproducing a passage from the Calcutta High Court which had not referred to the ratio laid down by a two-Judge Bench of this Court in Ghulam Mohd. Bhat case [(2005) 13 SCC Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 27/31

228]. Thus, the conclusion arrived at by the High Court is wholly unsustainable.

24. The learned counsel for the respondent has submitted that even if the charges have been proven, the punishment of dismissal in the obtaining factual matrix is absolutely harsh and shocking to the conscience. It is his submission that the punishment is disproportionate. The respondent was a part of the disciplined force. He has left the campus without prior permission, proceeded to the market, consumed liquor & quarrelled with the civilians. It has been established that he had consumed liquor at the market place, and it has been also proven that he had picked up quarrel with the civilians. It is not expected of a member of the disciplined force to behave in this manner. The submission, as has been noted earlier, is that the punishment is absolutely disproportionate. The test of proportionality has been explained by this Court in Om Kumar v. Union of India [(2001) 2 SCC 386], Union of India v. G. Ganayutham [(1997) 7 SCC 463] and Union of India v. Dwarka Prasad Tiwari [(2006) 10 SCC 388] .

25. In Dwarka Prasad Tiwari, it has been held that unless the punishment imposed by the disciplinary authority or the appellate Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 28/31

authority shocks the conscience of the court/tribunal, there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate & shocking to the judicial conscience.

26. We are inclined to think so as a member of the disciplined force, the respondent was expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in fancy. It is not a mild deviation which human nature would grant some kind of lenience. It is a conduct in public which has compelled the authority to think and, rightly so, that the behaviour is totally undisciplined. The respondent, if we allow ourselves to say so, has given indecent burial to self-control, diligence and strength of will power. A disciplined man is expected, to quote a few lines from Mathew Arnold:

"We cannot kindle when we will The fire which in the heart resides, The spirit bloweth and is still, In mystery our soul abides:

Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 29/31

But tasks in hours of insight will'd Can be through hours of gloom fulfill'd."

Though the context is slightly different, yet we have felt, it is worth reproducing.

27. Consequently, the appeal is allowed, the judgment and decree [Diler Singh v. Union of India, 2012 SCC OnLine P&H 19043] passed by the High Court is set aside and that of the first appellate court is restored and the suit instituted by the respondent-plaintiff stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs."

12. Consequently, this Court finds that in the

present case, the charge levelled against the

petitioner is grave, as can be culled out from the

preceding paragraphs, which has stood proved,

hence such indiscipline cannot be viewed lightly,

thus this Court finds that the punishment inflicted

upon the petitioner is not disproportionate to the

charges levelled against him, hence this aspect of

the matter is answered against the petitioner.

13. Having regard to the facts and circumstances

of the case and having gone through the materials

on record, this Court does not find any infirmity in Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 30/31

the procedure followed by the disciplinary

authority as also it does not find that there has

been any violation of the principles of natural

justice, hence there is no reason to interfere with

the disciplinary proceedings in question, especially

in view of the well settled law to the effect that

under Articles 226 & 227 of the Constitution of

India, neither evidence can be re-appreciated nor

interference can be made with the conclusion of

the enquiry proceedings, if the same has been

conducted, in accordance with law nor this Court

can go into the reliability/ adequacy of evidence or

interfere, if there is some legal evidence, on which

findings are based and on the contrary, this Court

can only consider whether the enquiry has been

held by the competent authority and whether the

same has been held in accordance with the

procedure established by law. Thus, there being no

illegality in the conduct of the departmental

proceedings, there is no occasion to interfere with

the conclusion of the disciplinary authority,

consequently this Court does not find any illegality Patna High Court CWJC No.6409 of 2016 dt.23-11-2023 31/31

in the impugned order of punishment dated

13.03.2015. As far as the appellate order dated

24.01.2016 is concerned, the same is also a just

and a well-reasoned order, which has appropriately

dealt with the issues raised by the petitioner,

hence the same also does not require any

interference.

14. Considering the facts and circumstance of the

case, discussed in the preceding paragraphs and

for the reasons mentioned herein above, this Court

does not find any merit in the present writ petition,

hence the same stands dismissed.

(Mohit Kumar Shah, J) S.Sb/-

AFR/NAFR AFR CAV DATE 12.10.2023 Uploading Date 23.11.2023 Transmission Date N/A