Full Judgment Text
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CASE NO.:
Appeal (civil) 1318 of 2005
PETITIONER:
Govt. of A.P. & Ors.
RESPONDENT:
Mohd. Narsullah Khan
DATE OF JUDGMENT: 31/01/2006
BENCH:
H.K. SEMA & Dr.A.R. LAKSHMANAN
JUDGMENT:
J U D G M E N T
H.K.SEMA,J
This appeal, preferred by the State of Andhra Pradesh, is
directed against the judgment and order of the Division Bench
of the High Court of Andhra Pradesh dated 9.12.2003 in Writ
Petition No. 14146 of 2003 quashing the order of dismissal
dated 21.9.2000 of the respondent herein and the order of the
appellate authority dated 20.10.2001 confirming the order of
dismissal. The Division Bench of the High Court directed that
the respondent herein be reinstated into service forthwith with
all back wages and all attendant benefits, which he could have
received, had he not been dismissed from service. The High
Court further directed that the respondent be reinstated into
service within a period of four weeks from the date of receipt of
the order. This Court on 16.7.2004, while issuing notice
granted interim stay of the impugned order. Further, on
18.7.2005, on the submission of the learned counsel for the
respondent that the respondent has been reinstated pursuant
to the High Court order but the back wages have not been
paid, this Court stayed the payment of back wages directed by
the High Court.
Briefly stated, the facts are as follows:
The respondent, Mohd. Nasrullah Khan was working as
Head Constable at Shamshabad Police Station of Ranga Reddy
District. Mr. Bill Clinton, the then President of the United
States of America was to visit the Hi-Tech City in Hyderabad
and the respondent was assigned the bandobast duty at the
office of the Oracle Software India Limited on the 4th Floor of
Hi-Tech City, Madhapur, Hyderabad. It is alleged that during
the bandobast duty, the respondent removed the CCTV Lens
No. VAT-660-DSC-56894 of Watal Company from ceiling of the
said office and concealed the same. It is further alleged that
the said removal of the lens was observed in the close circuit
TV by one G. Sridhar, the Electrician (PW4) and he
immediately went to the respondent and asked him about the
removal but the respondent denied the same. The Electrician,
thereafter, informed the same to the Security Supervisor and
on enquiry by him, though the respondent denied of having
removed the lens at the first instance, later handed over the
same stating that the same was lying at the toilet.
A disciplinary inquiry was initiated against the
respondent by the Superintendent of Police, A.R. Ranga Reddy
District by appointing Deputy Superintendent of Police (DSP)
by its order dated 19.4.2000. The substance of imputations of
misconduct and misbehaviour against the respondent are as
follows:
"Shri Mohd. Nasrulla Khan, High Court 380 of P.S.
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Shamshabad (u/s) exhibited grave misconduct in
committing theft of the C.C.T.V. lens costing about
Rs.15,000/- from the office of Oracle India Limited,
Hi-Tech City, Madhapur on 24.3.2000, while on
Bandobust duty, for personal gain."
In course of the inquiry, the Inquiry Officer examined as
many as four witnesses and after conducting detailed inquiry
by affording adequate opportunity to the respondent
submitted its report dated 18.8.200 holding that the charge
against the respondent of theft of C.C.T.V. lens has been
proved beyond all reasonable doubt. The Inquiry Officer, in
its Report, also observed as under:
"The charges are serious in nature. The delinquent
being the member of the disciplined force and being
a protector of public property, ought not to have
attempted to commit such a delinquency. I,
therefore, propose that the delinquent may be
awarded with a stringent punishment to meet the
ends of justice."
After receipt of the Inquiry Report, a show cause notice
was issued to the respondent herein by the Disciplinary
Authority and after considering the reply to the show cause
notice, the Disciplinary Authority dismissed the respondent
from service with immediate effect by an order dated
21.9.2000. It was further directed that the period of
suspension from 30.3.2000 till the date of dismissal be
treated as "Not on duty". Aggrieved thereby, the respondent
preferred an appeal before the Deputy Inspector General of
Police, which was dismissed on 11.5.2001. Thereafter, the
respondent filed O.A.No. 3700 of 2001 before the Andhra
Pradesh Administrative Tribunal. The Administrative
Tribunal, by its order dated 1.8.2001, remanded the matter to
the Appellate Authority for reconsideration of the matter. The
Appellate Authority, after reconsidering the representation,
rejected the appeal again and confirmed the order of dismissal
by its order dated 20.10.2001. Being aggrieved, the
respondent again filed O.A. No. 8066 of 2001 before the
Tribunal contending, inter-alia, that the theft, as alleged, was
not proved and the Appellate Authority did not properly
consider the submissions of the respondent and that the
Appellate Authority dismissed the appeal without application
of mind. The appellant herein filed a detailed counter
repudiating the allegations made in the O.A. It is stated that
the order of dismissal was passed in accordance with the rules
and regulations and there was no denial of principles of
natural justice to the respondent, nor was there any
allegations of violations of rules and regulations or procedures.
It was also contended that the guilt of the respondent has
been proved beyond all reasonable doubt. After considering
the petition and the counter, the Andhra Pradesh Appellate
Tribunal by its order dated 4.4.03 dismissed the O.A.
confirming the order of dismissal. Aggrieved thereby, the
respondent preferred Writ Petition No. 14146 of 2003 before
the High Court, which was allowed by the impugned order, as
stated earlier. Hence, the present appeal by Special Leave.
It is contended by the learned counsel for the appellant
that the finding recorded by the Inquiry Officer is a finding of
fact and the High Court cannot act as an appellate authority.
Its jurisdiction is circumscribed and confined to correct errors
of law or procedural law, if any, or violation of principles of
natural justice. It is further contended that the High Court fell
in grave error of law by re-appreciating the evidence recorded
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by the Inquiry Officer like an appellate authority in the instant
case.
Per contra, learned counsel for the respondent contended
that the alleged theft of lens or removal of lens by the
respondent is not proved and, therefore, the finding of the
Inquiry Officer is perverse and the order of dismissal on the
basis of the finding recorded by the Inquiry Officer is vitiated.
At this stage, we may point out that there is no allegation
of violation of principles of natural justice, or that the inquiry
was conducted without following the procedures or rules and
regulations. The only case put up before us by the respondent
is that the theft or removal of lens by the respondent is not
proved in the course of Inquiry. This contention need not
detain us any longer because going through the Report of the
Inquiry, the Inquiry Officer, after examining PWs. 1,2,3 and 4
and after affording adequate opportunity to the respondent,
has come to the conclusion that the charge levelled against the
respondent stands proved.
The High Court, while upsetting the order of the Tribunal
dated 4.4.03 passed in O.A. No. 8066/01 and order of
dismissal dated 21.1.2000 confirmed by the Appellate
Authority dated 20.10.2001, recorded its finding in paragraph
5 of its judgment as under:
"There is no dispute that the petitioner was posted
on Bando-bust duty on the relevant date and the
entire premises was under close circuit
T.V. System. The question is whether the petitioner
has committed the theft of camera lens. There is no
direct evidence on this aspect. It is only on
presumption that when once the camera was not
relaying the pictures, the officials of Oracle
company came to that place where the camera was
positioned and found that the lens was not available
with the camera. Even the witnesses examined on
this aspect namely the employees of Oracle
Company did not state that the petitioner had
committed theft of the lens and further it is on
record that the electrician himself traced out the
camera lens which was lying outside toilet room and
the entire premises was carpeted. No other
independent officer has been examined to establish
that the petitioner had committed theft. However,
we see from the report of the Enquiry Officer that he
got the cassette displayed and noticed the
movements of the petitioner, sitting on chair, getting
up and coming towards the camera and touching
the lens of camera (hand is clearly visible) between
13-58 and 13-59 hours on 24.3.2000. But this is
not the function of the Enquiry Officer. It must be
established by the independent evidence. When we
directed the learned Government pleader and the
learned Counsel for the petitioner to again view the
cassette, they stated that the visibility is beyond
recognition. In such circumstances, it has to be
held that the findings of the Enquiry Officer appears
to be based on mere surmises and conjectures and
it is finding based on no evidence. In such
situation, the Tribunal ought to have held that the
Enquiry is vitiated for lack of acceptable and
permissible evidence on this aspect. It is also on
record that the lens was not recovered from the
person of the petitioner and admittedly the
petitioner was on guard duty in the premises where
the cameras were positioned. In such a situation, it
cannot be said that simply because, the lens of one
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camera is missing, the petitioner committed theft of
it. If really the police had conducted investigation,
they could have sent the lens to the Forensic expert
with reference to the fingerprints and that could
have made the matters clear. But for the reasons
best known to the police, they did not take such
action and tried to find fault with the police
constable fastening the charge of theft. Under these
circumstances, we are of the considered view that
the Tribunal filed to take into consideration this
aspect and held that the Enquiry was conducted
properly and finding was validly recorded."
From the finding recorded by the High Court it clearly
appears that the High Court re-appreciated the evidence as an
Appellate Authority. Apart from re-appreciating the evidence,
which is not permissible in law, the High Court also fell in
grave error by directing the Govt. Pleader and the learned
counsel for the respondent herein to again view the cassettes.
It is on record that the Inquiry Officer relied on the video
cassettes displayed during the Inquiry as part of additional
evidence. The finding has been clearly recorded by the Inquiry
Officer on the basis of the evidence adduced by PWs. 1,2,3 and
4 during the Inquiry.
By now it is a well-established principle of law that the
High Court exercising power of judicial review under Article
226 of the Constitution does not act as an Appellate Authority.
Its jurisdiction is circumscribed and confined to correct errors
of law or procedural error, if any, resulting in manifest
miscarriage of justice or violation of principles of natural
justice. Judicial review is not akin to adjudication on merit by
re-appreciating the evidence as an Appellate Authority.
We may now notice a few decisions of this Court on this
aspect avoiding multiplicity. In Union of India v. Parma
Nanda (1989) 2 SCC 177, K. Jagannatha Shetty, J., speaking
for the Bench, observed at page SCC 189 as under:
"We must unequivocally state that the jurisdiction
of the Tribunal to interfere with the disciplinary
matters or punishment cannot be equated with an
appellate jurisdiction. The Tribunal cannot interfere
with the findings of the Inquiry Officer or competent
authority where they are not arbitrary or utterly
perverse. It is appropriate to remember that the
power to impose penalty on a delinquent officer is
conferred on the competent authority either by an
Act of legislature or rules made under the proviso to
Article 309 of the Constitution. If there has been an
enquiry consistent with the rules and in accordance
with principles of natural justice what punishment
would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can lawfully be imposed
and is imposed on the proved misconduct, the
Tribunal has no power to substitute its own
discretion for that of the authority. The adequacy of
penalty unless it is mala fide is certainly not a
matter for the Tribunal to concern itself with. The
Tribunal also cannot interfere with the penalty if the
conclusion of the Inquiry Officer or the competent
authority is based on evidence even if some of it is
found to be irrelevant or extraneous to the matter."
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Again, the same principle has been reiterated by this
Court in B.C. Chaturvedi v. Union of India & Ors. (1995) 6
SCC 749. K. Ramaswamy, J., speaking for the Court,
observed at page SCC 759 as under:
"Judicial review is not an appeal from a decision but
a review of the manner in which the decision is
made. Power of judicial review is meant to ensure
that the individual receives fair treatment and not to
ensure that the conclusion, which the authority
reaches, is necessarily correct in the eye of the
court. When an inquiry is conducted on charges of
misconduct by a public servant, the Court/Tribunal
is concerned to determine whether the inquiry was
held by a competent officer or whether rules of
natural justice are complied with. Whether the
findings or conclusions are based on some evidence,
the authority entrusted with the power to hold
inquiry has jurisdiction, power and authority to
reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither
the technical rules of Evidence Act nor of proof of
fact or evidence as defined therein, apply to
disciplinary proceeding. When the authority
accepts that evidence and conclusion receives
support therefrom, the disciplinary authority is
entitled to hold that the delinquent officer is guilty
of the charge. The Court/Tribunal in its power of
judicial review does not act as appellate authority to
appreciate the evidence and to arrive at its own
independent findings on the evidence. The
Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer
in a manner inconsistent with the rules of natural
justice or in violation of statutory rules prescribing
the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is
based on no evidence. If the conclusion or finding
be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the
conclusion or the finding and mould the relief so as
to make it appropriate to the facts of each case."
As already said, in the present case there is no allegation
of violation of principles of natural justice or the inquiry being
held inconsistent with the mode of procedure prescribed by
the rules or regulations.
This takes us to the last submission of the counsel for
the respondent. Learned counsel for the respondent
contended that the offence, said to have been committed,
being minor in nature and no loss being caused to the owner
of the property, inasmuch as the same had been recovered on
the spot, lenient punishment may be awarded in place of
dismissal from service. We are unable to countenance this
submission. The gravity of the offence must necessarily be
measured with the nature of the offence. The respondent was
a member of the Discipline Force holding the rank of Head
Constable. The duty assigned to him was a ’bandobast’ duty
during the visit of the then President Bill Clinton, who ran a
security risk of the highest grade. His misconduct could have
led to serious security lapse resulting into fatal consequences.
But, because of timely detection of the electrician \026 PW4, the
lens was recovered and immediately restored. We entirely
agree with the inquiry officer that the charges are serious in
nature, being committed by a member of Disciplinary Force,
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who deserved stringent punishment. To instill the confidence
of the public in the Establishment, the only appropriate
punishment in such cases is dismissal from service, which has
been correctly awarded.
It is stated that the respondent was reinstated on
19.6.04, pursuant to the order passed by the High Court and
has been working since then and pay and allowances have
been paid from 19.6.04. Since, he has been paid for the
period he has worked, the salary and allowances already paid
to him shall not be disturbed. The respondent, however, shall
not get his back wags.
In the premises aforestated, we are clearly of the view
that the High Court has committed patent error of law which
has resulted in miscarriage of justice. The order of the High
Court is, accordingly, quashed. The appeal is allowed.
Consequently, the writ petition, filed by the respondent stands
dismissed. Parties are asked to bear their own costs.