Cisf vs Santosh Kumar Pandey

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8671 OF 2015

CISF AND OTHERS ... APPELLANTS

VERSUS

SANTOSH KUMAR PANDEY ... RESPONDENT

JUDGMENT

SANJIV KHANNA, J.

This appeal, which has been preferred by Central Industrial

Security Force1 and two others, takes exception to the judgment

dated 16.12.2014 in Special Civil Application No. 13718 of 2004,

whereby the High Court of Gujarat has allowed the writ petition

preferred by Respondent No.1 – Santosh Kumar Pandey and

directed his reinstatement in service with 50% back wages from the

date of his removal.

2. Respondent No. 1 – Santosh Kumar Pandey, who was working as

a constable with the CISF, was posted at the Greenbelt Area of the

IPCL Township, Vadodara, Gujarat, where he was charge-sheeted

vide memorandum dated 28.10.2001 on allegations of misconduct, Signature Not Verified Digitally signed by NIRMALA NEGI Date: 2022.12.16 17:34:29 IST which allegations we shall refer to in some detail subsequently. Reason:

1 For short, “CISF”.

Civil Appeal No. 8671 of 2015 Page 1 of 14 Respondent No.1 – Santosh Kumar Pandey having denied the

allegations, Deputy Commandant - N.K. Bharadwaj was appointed

as the Inquiry Officer, who vide his report dated 28.01.2002 held

that the charges levelled against Respondent No.1 – Santosh

Kumar Pandey stand proven. Respondent No.1 – Santosh Kumar

Pandey made a representation, and thereby questioned the inquiry

report and claimed that he should be exonerated of the charges.

The disciplinary authority, however, vide order dated 23.02.2002,

agreed that the charges were proved and penalty of removing

Respondent No. 1 – Santosh Kumar Pandey from service was

imposed. Respondent No.1 – Santosh Kumar Pandey had

preferred an appeal that was rejected by the appellate authority

vide order dated 08.05.2002. Revision petition filed by the

Respondent No.1 – Santosh Kumar Pandey was rejected vide

order dated 08.04.2003.

3. These orders, including the inquiry report, were challenged by

Respondent No.1 – Santosh Kumar Pandey vide Special Civil

Application No. 13718 of 2004, which, vide impugned judgment,

has been allowed, as per the directions set out above.

4. The reasoning given by the High Court for allowing the Writ Petition

is to be found in paragraphs 8, 9 and 10 of the impugned judgment,

which for convenience, are reproduced below:

Civil Appeal No. 8671 of 2015 Page 2 of 14

“8. We have gone through the evidence came on record. Mahesh B. Chaudhry who is the complainant gave his statement on 27.10.2001 before the CISF Officer. In his examination, the complainant has narrated the aforesaid story, but in the cross examination, he had admitted that the petitioner has returned the watch and he has got his article back and he does not want to take any action against the petitioner. He has also admitted in the question put by the Inquiry Officer as regards to the illicit demand to spend some time with his fiancée as his fiancée has also seen the incident.

9. (X)2 who is fiancée of complainant Mahesh B. Chaudhry has also been examined and she has clearly and categorically stated that she was little aware, but what was told to his fiancée Mahesh, she has not heard. Of course, she saw him giving watch to the petitioner.

10. Indisputably, on going through the entire evidence available on record, entire case against the petitioner rests only on the sole testimony of Mahesh B. Chaudhry-complainant. In our evaluation of evidence of the complainant, his evidence is also not consistent. As per his say, his fiancée has also seen the incident, but his fiancée has clearly stated before the Inquiry Officer that she has not seen the incident. Now, only question remains as regards snatching/taking away watch from the complainant Mahesh B. Chaudhry. In respect of the said allegation also, the evidence on record clearly reveals that watch was already returned and, therefore, even the complainant has given in writing to the official of CISF that his watch is already returned by the present petitioner and, therefore, he does not want to take any action against him and he withdrew the complaint.”

5. In our opinion the reasoning given by the High Court is faulty on

both facts and law. To avoid prolixity, as there is a short issue that

2 Identity suppressed to maintain privacy.

Civil Appeal No. 8671 of 2015 Page 3 of 14 arises for consideration, we are not separately referring to the

arguments by both sides, as these have been considered during

the course of our reasoning.

6. We begin by referring to the allegation of misconduct by

Respondent No.1 – Santosh Kumar Pandey, on the intervening

night between 26.10.2001 and 27.10.2001, when he was posted as

a Constable on night duty at the Greenbelt Area of the IPCL

Township, Vadodara, Gujarat. As per the chargesheet, on

27.10.2001 at about 1:00 a.m., Mahesh B. Chaudhry and his

fiancée had passed through the area on motorcycle and had

stopped in the corner, which is when Respondent No.1 – Santosh

Kumar Pandey had come forward and had questioned them.

Respondent No.1 – Santosh Kumar Pandey taking advantage had

told Mahesh B. Chaudhry that he would like to spend some time

with his fiancée. When Mahesh B. Chaudhry had protested and

did not agree, Respondent No.1 – Santosh Kumar Pandey had

asked Mahesh B. Chaudhry to give something to him. Mahesh B.

Chaudhry had then given the watch he was wearing to Respondent

No.1 – Santosh Kumar Pandey. On the next day, i.e. 27.10.2001,

at about 8:00 p.m., Mahesh B. Chaudhry came back to the P.T.

Gate with his friend Pradip Raghavan and had reported the

incident. Senior officers took notice. Mahesh B. Chaudhry wrote a

Civil Appeal No. 8671 of 2015 Page 4 of 14 written complaint stating the facts. Respondent No.1 – Santosh

Kumar Pandey was called and confronted. What transpired has

been recorded and noted in the inquiry report, and the same will be

noticed below, when we refer to the statements of the witnesses.

7. Mahesh B. Chaudhry in his statement has affirmed that on

26.10.2001, he and his fiancée had proceeded to see/play Navratri

Garba. The P.T. Gate was closed and they consequently decided

to return home. On their way back, they had stopped, which is when

Respondent No.1 – Santosh Kumar Pandey had questioned them

about their presence at that place at that time. Mahesh B. Chaudhry

had informed Respondent No.1 – Santosh Kumar Pandey that the

girl with him was his fiancée, and that they had come there to play

Garba. Respondent No.1 – Santosh Kumar Pandey was not

satisfied, and in spite of repeated pleas by Mahesh B. Chaudhry,

he would not let them go home. Respondent No.1 – Santosh Kumar

Pandey told Mahesh B. Chaudhry that he wanted to spend time with

his fiancée. Mahesh B. Chaudhry did not agree. Then Respondent

No.1 – Santosh Kumar Pandey had insisted that Mahesh B.

Chaudhry must give something to him to allow them to go.

Thereupon, Mahesh B. Chaudhry had told Respondent No.1 –

Santosh Kumar Pandey that he has a watch which, in the

circumstances, he was forced to hand over to Respondent No.1 –

Civil Appeal No. 8671 of 2015 Page 5 of 14 Santosh Kumar Pandey. Thereafter, Mahesh B. Chaudhry and his

fiancée were allowed to leave and they returned home. The next

day, Mahesh B. Chaudhry, along with his friend Pradip Raghavan,

to whom he had narrated the incident, came back to the P.T. Gate

to retrieve the watch. At the P.T. Gate, they had interacted with the

constable on duty who was posted there at that time. The constable

had then called the officers on duty from the CISF Office to whom

he recounted the entire incident. Respondent No. 1 – Santosh

Kumar Pandey was called and questioned by the officers. He was

asked whether he had taken Mahesh B. Chaudhry’s watch. Initially,

Respondent No. 1 – Santosh Kumar Pandey denied having taken

the watch. Mahesh B. Chaudhry and Pradip Raghavan went

outside. After some time, Respondent No. 1 – Santosh Kumar

Pandey had asked Mahesh B. Chaudhry and Pradip Raghavan to

wait. Respondent No. 1 – Santosh Kumar Pandey came back and

returned the watch to Mahesh B. Chaudhry. Mahesh B. Chaudhry

had, accordingly, informed the officers and gave in writing that he

would not like to take any action against Respondent No. 1 –

Santosh Kumar Pandey. In response to the questions put by the

Inquiry Officer, Mahesh B. Chaudhry admitted that the watch was

returned at Undera Chowk in the presence of Pradip Raghavan.

Further, he was afraid and had therefore given his watch to

Civil Appeal No. 8671 of 2015 Page 6 of 14 Respondent No. 1 – Santosh Kumar Pandey. Lastly, his fiancée

had seen him give the watch to Respondent No. 1 – Santosh Kumar

Pandey.

8. These facts, as stated by Mahesh B. Chaudhry, and as the events

had unfolded on 27.10.2001, stand affirmed in the statements made

before the Inquiry Officer by Kamaljit Singh, R.K. Das, V.K. Gautam

and R.C. Savita. They have confirmed that Respondent No. 1 –

Santosh Kumar Pandey was posted on night duty during the

intervening night between 26.10.2001 and 27.10.2001. On

27.10.2001 Mahesh B. Choudhry had come to the P.T. Gate and

made the complaint that was recorded in writing. Mahesh B.

Choudhry had identified Respondent No. 1 – Santosh Kumar

Pandey as the person who had harassed and stalked them, stated

that he wanted to spend time with his fiancée and, upon refusal had

asked Mahesh B. Chaudhry to give something to him. Respondent

No. 1 – Santosh Kumar Pandey had taken the watch from Mahesh

B. Chaudhry. Later on, Mahesh B. Chaudhry had returned to the

CISF Office and had informed the officers that Respondent No. 1 –

Santosh Kumar Pandey had returned the watch.

9. On behalf of Respondent No. 1 – Santosh Kumar Pandey, our

attention was drawn to the statement made by Pradip Raghavan

who had oscillated and did not, in our opinion, depose truthfully.

Civil Appeal No. 8671 of 2015 Page 7 of 14 When confronted and questioned by the Inquiry Officer, Pradip

Raghavan did accept that he and Mahesh B. Chaudhry had

proceeded to the CISF Office to make the complaint, that was

written by Mahesh B. Chaudhry and was signed by him at the

bottom. Further, he had signed his statement recorded on

27.10.2001. His claim that the statements had not been read to and

heard by him is unreal and farcical. Equally, the pretence that he

did not know the conversation that had taken place in the CISF

Office is unbelievable and unworthy of any credence. On being

questioned, Pradip Raghavan had accepted that, thereafter, he and

Mahesh B. Chaudhry along with Respondent No. 1 – Santosh

Kumar Pandey had gone to Undera Chowk.

10. Our attention was also drawn to the statement of the fiancée, whose

identity has been suppressed to protect her privacy. She did accept

having gone with Mahesh B. Chaudhry to see Garba on the night

of 26.10.2001 at IPCL Township, but as the gate was closed, they

decided to go back home. On their way, when they stopped and

were talking to each other, Respondent No. 1 – Santosh Kumar

Pandey came there and spoke to Mahesh B. Chaudhry for some

time. She claimed that she had not heard the conversation between

Mahesh B. Chaudhry and Respondent No. 1 – Santosh Kumar

Pandey but had seen Mahesh B. Chaudhry giving the watch to

Civil Appeal No. 8671 of 2015 Page 8 of 14 Respondent No. 1 – Santosh Kumar Pandey. On being questioned

by the Inquiry Officer, her explanation was that she could not hear

anything because she was asked to stand at some distance and

that she was frightened and was crying. We would not read her

statement as exonerating, or even contradicting to the version given

by Mahesh B. Chaudhry. She was a young girl and it is obvious

would have felt anxious and awkward. It is understandable as she

would not have liked being subjected to personal and private

questions. These are facts of life that have to be accounted for

when we evaluate and pass judgments. A holistic and pragmatic

approach is required, especially when the Evidence Act is not

applicable; and even where the Evidence Act applies, the

enactment gives discretion on matters of evaluation, analysis and

appraisal of evidence.

11. Learned counsel for Respondent No. 1 – Santosh Kumar Pandey

had drawn our attention to the statement given by Abdul Ghani, who

was present when the inquiries were made from Respondent No. 1

– Santosh Kumar Pandey on 27.10.2001. He had stated that

Respondent No. 1 – Santosh Kumar Pandey, on being questioned

by the Company Commander, had accepted that he had seen

Mahesh B. Chaudhry and his fiancée, who had stopped their

motorcycle at the corner of the road. Respondent No. 1 – Santosh

Civil Appeal No. 8671 of 2015 Page 9 of 14 Kumar Pandey claimed that he had seen both of them cuddling

each other and he had gone near them and asked what they were

doing. Mahesh B. Chaudhry and his fiancée had replied normally

and stated that they had stopped there. Abdul Ghani had also

confirmed that, on being further questioned by the Company

Commander, Respondent No. 1 – Santosh Kumar Pandey had

accepted that he had asked for the watch from Mahesh B.

Chaudhry. Respondent No. 1 – Santosh Kumar Pandey had

admitted to the Company Commander that he had made a mistake

and that he was sorry.

12. Respondent No. 1 – Santosh Kumar Pandey had appeared as a

defence witness wherein he had accepted that he was posted on

night duty on the intervening night of 26.10.2001 and 27.10.2001

and that at about 01:00 a.m., one girl and one boy stopped their

motorcycle and were doing something wrong. Thereafter, he had

questioned them. He had also scolded them. Respondent No. 1 –

Santosh Kumar Pandey claimed that they, out of anger had

complained against him at the P.T. Gate on 27.10.2001. He denied

the allegations and stated that the facts were false and fabricated.

13. The Inquiry Officer, in his report, has elaborately marshalled and

evaluated the entire evidence regarding the incident on the

intervening night of 26.10.2001 and 27.10.2001 and the

Civil Appeal No. 8671 of 2015 Page 10 of 14 happenings on 27.10.2001 after Mahesh B. Chaudhry and Pradip

Raghavan had made a complaint. The watch was subsequently

returned by Respondent No. 1 – Santosh Kumar Pandey to Mahesh

B. Chaudhry.

14. The order passed by the disciplinary authority considers the

objections raised by Respondent No. 1 – Santosh Kumar Pandey,

and refers to the statements and evidence on record to hold that

the charges were proven. On the question of withdrawal of the

complaint, he elaborated that Respondent No. 1 – Santosh Kumar

Pandey had returned the watch and thereupon, Mahesh B.

Chaudhry had returned to the CISF Office and made a written

request stating that he would like to withdraw the complaint. We

agree that the letter to withdraw the complaint will not nullify or

exonerate Respondent No. 1 – Santosh Kumar Pandey of the

charges. Respondent No. 1 – Santosh Kumar Pandey had

accepted he had taken the watch from Mahesh B. Chaudhry on the

intervening night of 26.10.2001 and 27.10.2001, which was

returned after Mahesh B. Chaudhry had made a written complaint

on 27.10.2001. On return of the watch, Mahesh B. Chaudhry had

made a written request to withdraw the complaint.

15. Paragraph 8 of the impugned judgment only partially records and

refers to the facts stated by Mahesh B. Chaudhry, but does not refer

Civil Appeal No. 8671 of 2015 Page 11 of 14 the background, including the incident on the intervening night of

26.10.2001 and 27.10.2001. Significantly, the High Court did accept

that Respondent No. 1 – Santosh Kumar Pandey had returned the

watch that he had taken from Mahesh B. Chaudhry. The last portion

of the said paragraph, in fact, admits that Mahesh B. Chaudhry, on

being questioned, had stated that Respondent No. 1 – Santosh

Kumar Pandey had made a demand of spending time with his

fiancée.

16. Paragraph 9 of the impugned judgment refers to the statement

made by the fiancée of Mahesh B. Chaudhry but fails to notice the

fact that the fiancée had got engaged the very next day after the

incident to Mahesh B. Chaudhry. We have already referred to her

statement. It would have been traumatic and agonising for her to

narrate the incident before the officers and that too in the presence

of Respondent No. 1 – Santosh Kumar Pandey. She, therefore,

while accepting her presence, had preferred to state that she had

not heard anything as she was standing at a distance and had seen

Mahesh B. Chaudhry giving the watch to Respondent No. 1 –

Santosh Kumar Pandey.

17. We have reservations regarding the reasoning given in paragraph

10 of the impugned judgment as it fails to take notice and properly

apply the law of judicial review. Judicial review is not akin to

Civil Appeal No. 8671 of 2015 Page 12 of 14 adjudication of the case on merits, and adequacy or inadequacy of

evidence, unless the court finds that the findings recorded are

based on no evidence, perverse or are legally untenable in the

sense that it fails to pass the muster of the Wednesbury principles3.

Power of the High Court under Articles 226 and 227 of the

Constitution of India enables exercise of judicial review to correct

errors of law, including procedural law, leading to manifest injustice

or violation of principles of fairness, without normally venturing into

reappreciation of evidence4. The writ court, when disciplinary action

is challenged, is primarily concerned with examination of the

decision making process, which requires satisfaction that the

competent authorities have held inquiry as per the prescribed

procedure, and have duly applied their mind to the evidence and

material placed on record, without extraneous matters being given

undue consideration, and the relevant factors have been cogitated.

The conclusions of fact, which are based upon evaluation and

appreciation of evidence, when meticulously reached by the

authorities, should not be interfered with merely because the court

may have reached at a different conclusion. Thus, error of law, is

3 See Paragraph 14 in Central Industrial Security Force and Others v. Abrar Ali, (2017) 4 SCC 507. 4 See Paragraphs 12-16 in Union of India and Others v. P.Gunasekaran, (2015) 2 SCC 610.

Civil Appeal No. 8671 of 2015 Page 13 of 14 apparent in the reasoning vide paragraph 10 of the impugned

judgment.

18. On the question of proportionality of punishment, we have to

observe that the facts in the present case are startling and

distressing. Respondent No. 1 – Santosh Kumar Pandey is not a

police officer, and even police officers are not required to do moral

policing, ask for physical favour or material goods.

19. In view of the aforesaid factual and legal position, we accept the

appeal and set aside the impugned judgment. Accordingly, Special

Civil Application No. 13718 of 2004 filed by Respondent No. 1 –

Santosh Kumar Pandey before the High Court will be treated as

dismissed. The order of removal from service passed by the

disciplinary authority is upheld. In the facts of the case, there shall

be no order as to costs.

......................................J. (SANJIV KHANNA)

......................................J. (J.K. MAHESHWARI)

NEW DELHI;

DECEMBER 16, 2022.

Civil Appeal No. 8671 of 2015 Page 14 of 14