Union Of India & Ors vs Manab Kumar Guha

UNION OF INDIA & ORS. .... APPELLANTS

Versus

MANAB KUMAR GUHA .... RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. In this Special Leave Petition, the Union of India and its

functionaries assail the judgment and order dated 6th of March,

2007 passed by the Division Bench of the Calcutta High Court

whereby while allowing the appeal preferred by the writ petitioner-

respondent it had set aside the order of the learned Single Judge

and quashed the order of his compulsory retirement.

2. Leave granted.

3. Short facts giving rise to the present appeal are that the

writ petitioner-respondent (hereinafter referred to as `writ

petitioner') was a constable in the Railway Protection Force and

on 5th June, 1995 deployed for duty at Asansol Railway Station.

One Harish Chandra Ram made a complaint that the writ

petitioner alongwith another constable dragged him to the yard,

assaulted him and robbed Rs.400/- and key of a tractor from his

possession. He was put under suspension and on 28.6.1995

served with the memo of charge containing the following

allegation:

"On 5.6.95 while he was deployed for duty at

Down Marshalling Post/Asansol alongwith Const. Nil

Rameshwar from 16/00 Hrs. to 24/00 Hrs. they

jointly caught hold of a passenger namely Harish

Chandra Ram who had gone at the west end of

Platform No. > of Asansol Rly. Station at about

19/00 Hrs. to ease himself, dragged him to the

yard, assaulted him and robbed Rs.400/- and the

key of a tractor from his possession. On search 2

Nos. of 100 rupee notes and key of a tractor were

recovered from Const. Rameshwar."

4. The enquiry officer held him guilty of the charge and the

disciplinary authority agreeing with the same inflicted the

punishment of removal from service. The writ petitioner preferred

appeal and the Appellate Authority allowed the appeal, set aside

the order of removal and directed for de novo enquiry and while

doing so, observed as follows :

"2. However, I find that there were some gross

irregularities in the course of the proceeding enquiry.

First, from the very beginning of the proceeding the

delinquent should have been given the option to

engage a "friend" for defending his case and

thereafter in presence of his "friend" the enquiry

should be started. Secondly, the complainant was

not examined during the course of proceeding

enquiry. Thirdly, the complainant's story of

disposal/delivery of a tractor at Burdwan and

boarding a train from Asansol after that required

further examination by E.O. and cross examination

by the delinquent."

5. Thereafter a de novo enquiry was held in which the writ

petitioner was allowed to engage a friend. However, Harish

Chandra Ram, the victim was not examined. Nonetheless the

enquiry officer held the writ petitioner guilty of the charge. A copy

of the enquiry-report was made available to the writ petitioner

and he submitted his reply. The disciplinary authority considered

the report of enquiry officer and reply of the writ petitioner and

passed the order of removal from service. As regards the plea of

the writ petitioner regarding non-examination of Harish Chandra

Ram, the disciplinary authority observed as follows:

"......In the 3rd para, he has alleged that the

complainant Sri Harish Chandra Ram could not be

presented in the enquiry and hence the complaint is

false. But this defence of Shri Guha cannot be

accepted because the fact of the matter is that Harish

Chandra Ram was illegally detained and released by

const./Guha alongwith C/Rameshwar and C/Guha

has clearly accepted in his statement about incident

except of course that he has not snatched money. So,

one cannot deny the complaint as false just because

in the later date the complainant could not come

before. It is evident from the case file that the E.O.

has taken all pains to call Shri Harish Chandra Ram

from his native place many times but it appears that

under fear in mind complainant could not dare to

attend departmental enquiry which was conducted at

RPF Post. However, written complaint which is duly

supported by seizure list cannot be denied as such."

6. Writ Petitioner preferred appeal and the Appellate

Authority partly allowed the appeal and substituted the

punishment of removal from service to that of compulsory

retirement.

7. Writ petitioner assailed the aforesaid order before the

Calcutta High Court which dismissed the writ petition by order

dated 10th of April, 2002. On appeal by the writ petitioner, the

Division Bench of the Calcutta High Court set aside the order of

the learned Single Judge and quashed the order of compulsory

retirement and that is how the appellants are before us.

8. Mr. Naresh Kaushik, learned Counsel appearing on behalf

of the appellants submits that every effort was made to examine

the victim Harish Chandra Ram and only on the ground that he

was not examined, the order of compulsory retirement ought not

to have been set aside. He points out that the xerox copy of the

complaint filed by the victim was placed on record and the

enquiry officer on appraisal of the materials had recorded the

finding of guilt which ought not to have been interfered by the

High Court in appeal. He points out that the High Court while

exercising the power of judicial review do not act as a Court of

appeal, appreciate evidence and records findings.

9. Ms. Asha Jain Madan, learned Counsel, however,

appearing on behalf of the respondent points out that the

Appellate Authority while setting aside the order of removal earlier

had found it bad on account of non-examination of the victim

Harish Chandra Ram and the story put by him that after disposal

of the tractor, he came to board a train at Asansole required

further cross-examination. She submits that in the de novo

enquiry, Harish Chandra Ram did not appear and as such the

order of removal suffers from the same vice.

10. We have bestowed our consideration to the rival

submissions and we find substance in the submission of Mr.

Kaushik.

11. True it is that the Appellate Authority while setting aside

the order of removal and directing for de-novo enquiry earlier had

found the same bad in law on account of various grounds

including the ground of non-examination of the victim Harish

Chandra Ram. Thereafter in the de novo enquiry, the enquiry

officer had taken pains to call Harish Chandra Ram from his

native place but he did not appear during the enquiry. It is not

the case of the writ petitioner that the disciplinary authority

purposely withheld Harish Chandra Ram from appearing in the

departmental enquiry. Harish Chandra Ram had given a written

complaint, a copy of which was produced during the course of

enquiry which supports the charge levelled against the writ

petitioner. Further writ petitioner in his defence had accepted the

detention of Harish Chandra Ram and his release. However, he

has denied the allegation of snatching of money from him but

from his own defence, it is evident that he had accepted the

incident except of course that he had not snatched the money.

On the basis of the materials on record, the enquiry officer held

the writ petitioner guilty with which the disciplinary authority as

also the appellate authority agreed. It is well settled that High

Court while exercising the power of judicial review from the order

of the disciplinary authority do not act as a Court of appeal and

appraise evidence. It interferes with the finding of enquiry officer

only when the finding is found to be perverse. We are of the

opinion that the Division Bench of the High Court erred in setting

aside the order of learned Single Judge and quashing the order of

compulsory retirement. The finding recorded by the enquiry

officer is based on the materials on record and on proper

appreciation of evidence which cannot be said to be perverse

calling for interference by the High Court in exercise of its power

of judicial review.

12. In the result, the appeal is allowed, impugned order is set

aside but without any order as to costs.

................................................J.

( HARJIT SINGH BEDI )

................................................J.

( CHANDRAMAULI KR. PRASAD )

NEW DELHI,

FEBRUARY 28, 2011.