Isha Sawant | Government Law College | 26th September 2020
Pravin Kumar v. Union of India
Facts:
The appellant- Pravin Kumar approached the Supreme Court against the order of the Bombay High Court of quashing his writ petition. The appellant was deployed at the Crime and Intelligence Wing at Central Industrial Security Force, at the local Bharat Petroleum Corporation Limited (BPCL) in Mumbai. On 02-08-1999, Constable Ram Avtar Sharma (CW1) at around 6pm was noticed by Inspector Hiralal Chaudhary (PW1) carrying huge bundles of notes, Chaudhary searched the person of Sharma and recovered an amount of Rs. 10,780 from him, a record was made of the seizure in the General Diary kept at the north-gate of BPCL compound. Later it was found that a GD entry was made at the main gate at 6:05 pm, noting an amount of Rs. 9000 handed over by Constable K.K. Sharma (PW2) on behalf of another official as a personal loan, during investigation this entry was found to be false and was registered at the instance of the appellant who made calls to ASI Surjan Singh (PW5) who was in-charge of the GD. K.K. Sharma was pressurized by the appellant to falsely support his ‘loan theory’ by deposing that he had in fact delivered the cash to CW1. An FIR was registered with the Anti-Corruption Bureau of Investigation, and an enquiry was initiated against the appellant under Rule 34 of CISF Rules 1969, with Assistant Commandment P.B. Patil as the enquiry officer and by an order dated 31-05-1999 the appellant was suspended.
The enquiry officer submitted a self-speaking report on 17-09-1999, in which PW1 testified to search of CW1 and seizure of Rs. 10,780 from him, PW2 negated handing over the money to anyone and mentioned that he was threatened by the appellant into giving a false statement. PW5 testified that he received a call from the appellant intimidating him into registering a false GD entry with an earlier time to substantiate his loan transaction for protecting CW1. CW1 was examined by the enquiry officer who testified that on 02-08-1999, he received Rs. 10,000 on the appellant’s behalf from one D.K. Parmar-contracted by the BPCL for lifting garbage/waste. The notes were in his possession along with his personal cash of Rs. 780, when was caught by PW1, he also admitted to have falsely claimed to have received the money from PW2, he stated that the appellant illegally collected bribes through his subordinates from BPCL contractors at the rate of Rs. 20 per vehicle entering the BPCL compound and Rs. 5 per vehicle exiting, for facilitating the theft of ‘iron scrap’ and ‘brass’ smuggled out of the compound along with the garbage, however, CW1 later retracted his statement. The appellant was given opportunity to prove his evidence.
The enquiry officer held the appellant guilty on the charges of gross misconduct and indiscipline for ordering false GD entry, second, for becoming an extra constitutional authority for issuing unlawful orders to PW2 to give a false statement and thirdly, corruption for illegally collecting bribes. The report was placed before the disciplinary authority and the appellant was given a chance to respond to the same. The disciplinary authority found no contradictions in the witness testimonies and the charges against the appellant was found to be proved. They found the enquiry officer to have followed the procedure properly and impartially and also noted that no request was ever made to change the enquiry officer so no malice can be suggested. The disciplinary authority considering the evidence and serious nature of the appellant’s charges passed an order dated 20-11-1999, imposing an exemplary punishment of dismissal from service under Rule 29(a) read with Rule 31(a)- Schedule II of CISF Rules, 1969.
The appellant filed a departmental appeal before the Deputy Inspector General of CISF Western Zone; the appellate authority after considering the appellant’s contention and reappreciating the evidence-on-record, dismissed the appeal. The appellant than approached the Bombay High Court against the orders of the Disciplinary Authority and the Appellate Authority under Article-226 of the Indian Constitution. During this appeal, the appellant raised a new contention that Rule 34 (10)(ii)(b) of the CISF Rules, 1969 was not complied with, which specified serving of a second showcause notice and opportunity of hearing regarding the proposed penalty and submitted before the court that it was not his case that the penalty imposed against him was disproportionate if the charges against him were held to be proved. The court found that the CISF rule relied upon by the appellant was amended in 1981 to have no requirement for showcause notice at the stage of penalty. The court re-examined the evidence and facts of the case and found sufficient evidence against the appellant’s involvement in collecting bribes and fabricating official records and intimidating officers to give false statements. They found that the enquiry officer followed all procedures and complied with the principles of natural justice, also gave ample opportunity to the appellant to prove his side, the writ petition was dismissed on 05-05-2009. The appellant thus approached the Supreme Court.
Issues:
- Whether the appellant was rightly charged for the offences and dismissed from service by the Disciplinary Authority, and whether the Appellate Authority and High Court was right in dismissing his appeal.
- Whether the dismissal of the appellant from service is disproportionate to the charges proved against him.
- Whether the Enquiry Officer took over the role of Judge as well as Prosecutor by asking question to the witness.
Legal Provisions:
- Constitution of India, 1950, Articles 226, 32 and 136 – Judicial review.
- Central Industrial Security Force Rules, Rule 34 – Nature of Penalties- Major/Minor
- Central Industrial Security Force Act, 1968 Section 22 – Disciplinary proceedings
- Evidence Act, 1872, Section 165- Judge’s power to put questions or order production.
Appellant’s Contention:
The counsel for the appellant submitted that since CW1 had retracted his statement, there was no corroboration between the witnesses and the documents. They also questioned the enquiry officer’s conduct of asking questions to the witness, they called it unfair as he acted as both the judge and prosecutor. The appellant denied the charges against him and stated that false charges were levelled against him. They stated that since the CBI was not launching criminal proceedings against the appellant this charge should also be dropped. He prayed for leniency and stated that dismissal of service given his 21 years of remaining service was disproportionate.
Respondent’s Contention:
The counsel for the respondent stated that no reliance was placed on CW1’s retracted statement. They stated that all the charges were proved against the appellant, the concurrent findings of the enquiry officer, disciplinary authority, appellate authority and the High Court left little scope for reappreciating evidence or re-adjudication. They referred to the case of Shashi Prasad v. CISF to put forth the argument that departmental enquiries are not out on the same pedestal as criminal proceedings, so acquittal in one would not affect the other due to different standard of proof. Further reliance was placed on the case of Govt. of Andhra Pradesh v. Mohd Narsulla Khan (2006) to claim that there cannot be re-appreciation of evidence and that the Constitutional Court should not act as appellate authority in disciplinary proceedings of government employees. They also stated that given the delicate nature of employment in para-military forces and the breach of high trust reposed in him by the society, strict punishment of dismissal from service given to the appellant was justified.
Observations of the Court:
The case was heard before the Supreme Court Bench of N.V. Ramana, S. Abdul Nazeer and Surya Kant, JJ. The court observed that the power of judicial review under Articles 226, 32 or 132 of the Constitution is different from the appellate power exercised by a departmental appellate authority. It stated that the court under Judicial review ensures fairness in treatment and evaluates the decision-making process and does not decide the merits of the case nor does it correct manifest errors of law. The court in appeals arising out of inquiries conducted on charges of misconduct by public servant is concerned with determining if the principles of natural justice were complied with and if the findings are based on some evidence. The court exercising powers of Judicial Review does not become an appellate authority and is limited to correcting procedural errors or violation of natural justice principles. The court observed that the Bombay High Court did not merely rely on the findings of the appellate authority rather re-examined evidence, conducted cross-examination and gave the appellant the chance to address arguments, raise objections and file appeal.
It also noted that the High Court adopted a liberal approach to Judicial Review and came at its own conclusion of guilt. The court also did not doubt that the appellate authority and disciplinary authority were thorough in their findings and it did not find any fault in the report of the enquiry officer. The court noted that the present case is not where there is no evidence or a different conclusion can be arrived at than the disciplinary authority. The court stated that the appellant’s contention that the enquiry officer by asking questions to the witness violated principles of natural justice as he became the judge as well as prosecutor, is misplaced. The court held that u/s-165 of the Indian Evidence Act, judges have the power to ask questions to any witness or party about any fact to obtain proper proof of the same. The court observed that the appellant did not mention any specific instance in his allegation, also no request was made to replace the enquiry officer which proves this objection was just an afterthought. The court noted that the CBI after investigation did not find sufficient evidence to launch criminal proceedings against the appellant but by a report dated 07-03-2000 recommended strict disciplinary action against the appellant and a few others.
The court noting the there is a deliberate difference in the standard of proof required for civil and criminal litigation taking into account the different stakes, power imbalance between the parties and social costs of erroneous decision. Thus, in a disciplinary proceeding the strict rules of evidence and procedure of criminal trial would not apply and the statements made before the enquiry officers can be relied upon in certain cases. The appellant’s contention that since the CBI did not file a criminal chargesheet against him, he should be absolved of the present proceeding, however the court held that the employer still retains his right to initiate disciplinary proceedings irrespective of the outcome of criminal proceeding, also the CBI had recommended strict disciplinary action to be taken against the appellant. On the appellant’s contention of the punishment being disproportionate to the charges proved against him, the court held that the disciplinary authority has wide discretionary powers to impose punishment for proved delinquency subject to certain rules and limitations. It was observed that imposing major penalty of dismissal, removal or reduction in rank would not be proper for trivial misdeeds but such punishment is needed in cases of grave offences such as corruption, misappropriation and gross indiscipline, etc.
Judgement:
The court held that given the charges of corruption, fabrication and intimidation being unanimously proved against the appellant the punishment of dismissal is not disproportionate. The court finding no merit in the present appeal dismissed it.
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