Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8671 OF 2015
CISF AND OTHERS ... APPELLANTS
VERSUS
SANTOSH KUMAR PANDEY ... RESPONDENT
J U D G M E N T
SANJIV KHANNA, J.
This appeal, which has been preferred by Central Industrial
1
Security Force 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
Reason:
which allegations we shall refer to in some detail subsequently.
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.
2
9. (X) 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
3
sense that it fails to pass the muster of the Wednesbury principles .
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
4
reappreciation of evidence . 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