PRAVIN KUMAR versus UNION OF INDIA AND ORS.

[2020] 7 S.C.R. 1078

[2020] 7 S.C.R.

PRAVIN KUMAR

UNION OF INDIA AND ORS.

(Civil Appeal No. 6270 of 2012)

BSEPTEMBER 10, 2020

[N. V. RAMANA, S. ABDUL NAZEER ANDSURYA KANT, JJ.]

Service Law – Appellant, paramilitary officer posted at localunit of Bharat Petroleum Corporation Ltd (BPCL) was entrustedCwith conducting surprise searches of personnel and taking strictaction against corruption –Dismissed by disciplinary authority oncharges of corruption – FIR registered with CBI – Appellate authoritydismissed appellant’s appeal against dismissal order – Writ petitionfiled by appellant – Dismissed – On appeal, held : Present case isDneither one where there is no evidence, nor is it one where thisCourt can arrive at different conclusion than the disciplinaryauthority – Appellant received fair trial – Plea that he should beexonerated in the disciplinary proceedings as no criminalchargesheet was filed by CBI after enquiry, rejected – Employeralways retains the right to conduct an independent disciplinaryEproceeding, irrespective of the outcome of criminal proceeding –Disciplinary Authority has wide discretion in imposing punishmentfor proved delinquency subject to principles of proportionalityand fair play – Punishment of dismissal from service is far fromdisproportionate to the charges of corruption, fabrication andFintimidation unanimously proved against the appellant – ArmedForces – Principles of Natural Justice –Doctrine of Proportionality– Penal Code, 1860 – Prevention of Corruption Act, 1988 – CISFRules, 1969 – r.34; r.29(a) r/w r. 31(a)- Schedule II – Constitutionof India – Art.14.GConstitution of India – Arts. 32, 136 and 226 – Scope ofjudicial review – Service matters – Held: Constitutional Courts whileexercising their powers of judicial review would not assume therole of an appellate authority – Their jurisdiction is circumscribedby limits of correcting errors of law, procedural errors leading tomanifest injustice or violation of principles of natural justice –HService Law – Principles of Natural Justice.

Service Law – Principles of Natural Justice – “nemo judex insua causa” – When not violated – Discussed – Evidence Act, 1872 –s.165.

Service Law – Disciplinary proceedings vis-à-vis criminalproceedings – Distinction between standards of proof – Discussed.

Dismissing the appeal, the Court

HELD: 1. The power of judicial review discharged byConstitutional Courts under Article 226 or 32, or when sitting inappeal under Article 136, is distinct from the appellate powerexercised by departmental appellate authority. Judicial reviewis an evaluation of the decision-making process, and not the meritsof the decision itself. Judicial Review seeks to ensure fairness intreatment and not fairness of conclusion. It ought to be used tocorrect manifest errors of law or procedure, which might resultin significant injustice; or in case of bias or grossunreasonableness of outcome. The Constitutional Courts whileexercising their powers of judicial review would not assume therole of an appellate authority. Their jurisdiction is circumscribedby limits of correcting errors of law, procedural errors leading tomanifest injustice or violation of principles of natural justice. Theconclusion obtained by High Court was based upon evidencesand was detailed and well-reasoned. Furthermore, the High Courtdidn’t restrict the scope of judicial review, rather adopted liberalapproach, and delved further to come to its own independentconclusion of guilt. The appellate authority had carefully dealtwith each plea raised by the appellant in his appeal and had givendetailed responses to all the contentions to satisfy the appellant’smind. The disciplinary authority too was impeccable and noinfirmity can be found in the report of the enquiry officer either.Even in general parlance, where an appellate or reviewing Court/authority comes to different conclusion, ordinarily the decisionunder appeal ought not to be disturbed in so far as it remainsplausible or is not found ailing with perversity. The present caseis neither one where there is no evidence, nor is it one wherethis Court can arrive at different conclusion than the disciplinaryauthority. [Paras 25, 28-30][1090-B-E][1092-B-G]

2. Plea of the appellant that the fact that the enquiry officerhad put his own questions to the prosecution witness and cross-

Aexamined the witnesses brought forth by the defence, amountedto making the prosecutor the judge, in violation of the naturaljustice principle of “nemo judex in sua causa” is misplaced. UnderSection 165, Evidence Act, judges have the power to ask anyquestion to any witness or party about any fact, in order to discoveror to obtain proper proof of relevant facts. While strict rules ofBevidence are inapplicable to disciplinary proceedings, enquiryofficers often put questions to witnesses in such proceedings inorder to discover the truth. Indeed, it may be necessary to dosuch direct questioning in certain circumstances. No specificmalice or bias was alleged against the enquiry officer, and evenCduring the enquiry no request was made to seek replacement;thus, evidencing how the objections were nothing but anafterthought. Rather it appears that the delinquent personreceived fair trial. [Paras 31, 32][1092-H][1093-A-D]Union of India v. T.R. Varma [1958] SCR 499 – reliedDon.3. Criminal proceedings are distinct from civil proceedings.It is both possible and common in disciplinary matters to establishcharges against delinquent official by preponderance ofprobabilities and consequently terminate his services. But theEsame set of evidence may not be sufficient to take away his libertyunder criminal law jurisprudence. Such distinction betweenstandards of proof amongst civil and criminal litigation isdeliberate, given the differences in stakes, the power imbalancebetween the parties and the social costs of an erroneous decision.Thus, in disciplinary enquiry, strict rules of evidence andFprocedure of criminal trial are inapplicable, like, statementsmade before enquiry officers can be relied upon in certaininstances. Thus, the appellant’s contention that he should beexonerated in the present proceedings as no criminal chargesheetwas filed by the CBI after enquiry, is discarded. The employerGalways retains the right to conduct an independent disciplinaryproceeding, irrespective of the outcome of criminal proceeding.Furthermore, the CBI report does recommend major disciplinaryaction against the appellant. [Paras 34, 35][1094-A-E]

Karnataka SRTC v. MG Vittal Rao (2012) 1 SCC 442 :[2011] 14 SCR 1089; Ajit Kumar Nag v. Indian Oil CorpLtd (2005) 7 SCC 764 : [2005] 3 Suppl. SCR 314; BHELv. M Mani (2018) 1 SCC 285 : [2017] 11 SCR 933 –relied on.

4. The Disciplinary Authority has wide discretion inimposing punishment for proved delinquency, subject of courseto principles of proportionality and fair play. Such requirementsemanate from Article 14 itself, which prohibits State authoritiesfrom treating varying-degrees of misdeeds with the same broadstroke. Determination of such proportionality is function of notonly the action or intention of the delinquent, but must also factorthe financial effect and societal implication of such misconduct.But unlike in criminal cases, in matters of disciplinary proceedingsCourts only interfere on grounds of proportionality when theyfind that the punishment awarded is inordinate to high degree,or if the conscience of the Court itself is shocked. Thus, whereasimposition of major penalty (like dismissal, removal, or reductionin rank) would be discriminatory and impermissible for trivialmisdeeds; but for grave offences there is need to send clearmessage of deterrence to the society. Charges such as corruption,misappropriation and gross indiscipline are prime examples ofthe latter category, and ought to be dealt with strictly. Thepunishment of dismissal from service is far from disproportionateto the charges of corruption, fabrication and intimidation whichhave unanimously been proven against the appellant. Appellant’sactions would most probably have caused huge consequentiallosses to BPCL and lowered the reputation of the CISF amongstmembers of the public. [Paras 36-38][1094-F-G][1095-A-D]

Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 :[2009] 15 SCR 712; Chandra Kumar Chopra v. Unionof India (2012) 6 SCC 369 : [2012] 5 SCR 1029; Govtof Andhra Pradesh v. Mohd Nasrulla Khan (2006) 2SCC 373 : [2006] 1 SCR 911; BC Chaturvedi v. Unionof India (1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644;State of Tamil Nadu v. S Subramaniam (1996) 7 SCC509; Lalit Popli v. Canara Bank (2003) 3 SCC 583 :[2003] 2 SCR 100; Himachal Pradesh State Electricity

BCD

1082SUPREME COURT REPORTS

[2020] 7 S.C.R.

ABoard Ltd v. Mahesh Dahiya (2017) 1 SCC 768 : [2016]9 SCR 879– relied on.

Shashi Prasad v. CISF (2019) 7 SCC 797 – referred to.

Case Law Reference

ECIVIL APPELLATE JURISDICTION: Civil Appeal No. 6270of 2012.

From the Judgment and Order dated 05.05.2009 of the High Courtof Judicature at Bombay in Writ Petition No. 1001 of 2001.

FP.N. Mishra, Sr.Adv., K. L. Janjani, Ayush Puri, Ms. SeemaBengani, B. V. Balaram Das, Advs. for the appearing parties.

The Judgment of the Court was delivered by

SURYA KANT, J.

1. The present civil appeal, which has been heard over video-Gconferencing, is directed against the order dated 05.05.2009 passed by aDivision Bench of the High Court of Bombay in WP No. 1001/2001,whereby appellant’s plea for quashing disciplinary proceedings andsetting-aside dismissal order on charges of corruption and extra-constitutional conduct while employed as paramilitary officer, was

Hrejected.

FACTUAL MATRIX

2. The appellant joined the Central Industrial Security Force(“CISF”) in January, 1995 as Sub-Inspector. After completing requisitetraining in Hyderabad, he was allocated to Mumbai Office of the WesternZone and posted at the local unit of Bharat Petroleum Corporation Ltd(“BPCL”) in March, 1996. Although he was initially deputed to performshift duty, but since July, 1997 he was deployed in the Crime andIntelligence Wing. As evidenced by an office order dated 08.05.1998,the appellant was specifically entrusted with conducting surprise searchesof personnel and taking strict action against anyone indulging incorruption.

3. On 28.02.1999 at around 6PM, Constable Ram Avtar Sharma(CW-1; hereinafter “Sharma”) was commuting in CISF bus near theBPCL compound when Inspector Hiralal Chaudhary (PW-1; hereinafter,“Chaudhary”) noticed large bundle of high-denomination notes inSharma’s pocket. Suspicious, Chaudhary got the bus turned back towardsthe BPCL compound, and forcibly made Sharma deboard near the North-gate. Amidst witnesses, Chaudhary searched Sharma’s person, duringwhich total sum of Rs 10,780 in the form of 100 notes of Rs 100 andthe rest in smaller denominations was recovered. No explanation for thelarge sum of unaccounted cash was forthcoming from Sharma, exceptfor plea for mercy, post which the amount was seized and the incidentrecorded in the General Diary (“GD”) kept at the North-gate of theBPCL compound.

4. Later, it was found that conflicting GD entry had been madeat the Main-gate of the BPCL compound little earlier at around 6:05PM,noting how an amount of Rs 9,000 had been handed over by dog-handlerConstable KK Sharma (PW-2) on behalf of another official, as personalloan to Sharma (CW-1). It was discovered over the course of investigationthat this entry was false and had been registered at the instance of thepresent appellant who made numerous phone calls between 6:30 and7PM to ASI Surjan Singh (PW-5) who was stationed at the Main-gateand was in-charge of the other GD register.

5. The following morning, KK Sharma (PW-2) who was projectedto have delivered the cash to Sharma, was pressurised by the appellantto falsely support his alternate ‘loan’ theory by deposing that he indeedhad delivered the impounded sum of money.

A6. An FIR was thus registered by the respondent-authorities withthe regional Anti-Corruption Branch of the Central Bureau of Investigation(“CBI”) on 06.03.1999 under various provisions of the Indian Penal Code,1860 and the Prevention of Corruption Act, 1988. Simultaneously, anenquiry under Rule 34 of CISF Rules, 1969, with Assistant CommandantPB Patil as the enquiry officer, was also initiated and the appellant wasBplaced under suspension vide order dated 31.05.1999.

a. Chargesheet

7. The chargesheet contained three charges against the appellant,first, gross misconduct and indiscipline by virtue of ordering of falseCGD Entry (No. 257, on 6:05PM at 28.02.1999); second, becoming anextra-constitutional authority by issuing unlawful orders to ConstableKK Sharma to give false statement to substantiate the aforementionedfake GD entry; and third, corruption for illegally collecting bribes fromcontractors of BPCL through his subordinates. All these charges werecontested by the appellant, who sought and was provided detailed listDof evidence and documents.

b. Investigation and Enquiry Report

8. The enquiry officer submitted self-speaking report on17.09.1999, which contained written statements and depositions of sixEwitnesses who were substantiating the charges, as well as evidence ledby the appellant in the form of five defence witnesses. Inspector HiralalChaudhary (PW-1) testified to the search of Sharma, the seizure of asum of Rs 10,780 from his person, and the lack of any explanation byhim on the spot regarding source of the suspicious sum. Head ConstableKK Sharma (PW-2), who as per the appellant’s defence had handedFover the seized amount as loan amount to Sharma, negated this alternateversion and instead implicated the appellant by mentioning that not onlydid he not give any money to anyone, but that he had instead beenthreatened by the appellant into giving false statement. Head ConstableRK Sharma (PW-3) claimed to have witnessed the search and seizure,Gand denied any talk of loan during such event. ASI Karan Singh(PW-4) deposed that two empty garbage trucks had entered the BPCLpremises earlier in the afternoon. ASI Surjan Singh (PW-5) testified thatat around 6:30PM when he was on duty at the BPCL Main-gate, hereceived call from the appellant intimidating him into registering falseGD Entry with earlier time of 6:05PM to substantiate fictitious loanHtransaction with the stated objective of protecting Sharma (CW-1).

9. Additionally, the enquiry officer examined Constable Ram AvtarSharma (CW-1) who testified that at around 2PM on 28.02.1999 hereceived bundle of notes totalling Rs 10,000 on behalf of the appellantfrom one DK Parmar, who was contracted by BPCL for the job oflifting garbage/waste. These notes were in his possession, in addition tohis personal cash of Rs 780, when he was caught around 6:15PM byChaudhary (PW-1) while he was travelling in the CISF Bus. He admittedthat he had falsely claimed that the money had been given to him by KKSharma (PW-2), and in response to question disclosed that bribes wereillegally collected from BPCL’s contractors at the rate of Rs 20 pervehicle entering the plant and Rs 5 per vehicle exiting. The seized sumof money, particularly, was to be handed over to the appellant forfacilitating theft of ‘iron scrap’ and ‘brass’ which was smuggled out ofthe compound in the middle of the garbage. CW-1, later on though,retracted and claimed that the record reflected something other thanwhat he had stated, and that his signatures ought not to be relied upon ashe had not read the document.10. The appellant in his defence evidence examined ConstableMN Dhanwat (DW-1) who deposed that although he was posted atNorth-gate on the date of the incident, he had left for personal workduring duty hours with the permission of the appellant. Constable JaimalSingh (DW-2) testified that he had witnessed the search of Sharma andrecording of the GD Entry by Chaudhary when he reached the North-gate at around 6:40PM. Further, he claimed that Sharma was repeatedlytrying to get in touch with the appellant, but could only get through ataround 7PM and then informed him that he was caught carrying his ownmoney. ASI SP Mishra (DW-3) who was on duty at the CISF Controlroom in Vashi stated that in his presence no message had been conveyedto the appellant regarding the incident. PK Nashkar (DW-4) states thatduring his duty at the ‘Quarter Guard’ in the Vashi Complex at 7PM, hewas directed by ASI SP Mishra (DW-3) to convey message to theappellant that there was phone call for him from Jaimal Singh (DW-2).Finally, Pravin Dhanji Parmar (DW-5), who had been performing house-keeping work at the BPCL refinery for the past twenty years on behalfof contractor DK Parmar & Co, stated that he did not hand over anymoney to Sharma. In addition, the enquiry officer perused the relevantGD entries and other documents on record.

11. Based on these numerous evidences and after according theappellant an opportunity to cross-examine all the witnesses as well as

Aleading his own substantive arguments, the enquiry officer through reportdated 17.09.1999 held the appellant guilty under each of the three charges.The enquiry officer found as matter of fact that the GD No. 257,entered at 6:05PM on 28.02.1999, was false entry made at the instanceof the appellant by Surjan Singh (PW-5), so that an alternate versioncould be crafted in which Sharma (CW-1) had allegedly received theBseized money as loan. Qua the second charge, it stood established fromthe version of KK Sharma (PW-2) that he had not advanced any loanand that he was approached by the appellant to give false statement tosubstantiate the GD No. 257. Finally, upon holistic interpretation of allevidence, that is, falsification of GD, threatening of KK Sharma (PW-C2), as well as indications of wrongdoing from the statements of otherwitnesses like DW-1; the enquiry officer concluded that illegal sumswere being collected by the appellant from BPCL’s contractors throughhis subordinate officers and therefore, the third charge of corruption toohad been proved.Dc. Proceedings before the Disciplinary Authority

12. This voluminous enquiry report was placed before thedisciplinary authority, which gave the appellant both copy of the reportas well as an opportunity to respond to it. Detailed rebuttals put forth bythe appellant through his written submission dated 14.10.1999 wereEexamined at length by the disciplinary authority. Preliminary objectionsof the enquiry officer being biased and of being pre-disposed to convictthe appellant, were rejected by the disciplinary authority with cogentreasons. It was noted that not only had proper opportunity of cross-examining witnesses and of availing assistance been accorded to theappellant, but that sufficient opportunities of seeking explanations,Fclarifications and records of testimonies and documents had in fact alsobeen availed of by him.

13. The disciplinary authority noted that no material contradictionscould be pointed out in the witnesses’ testimonies, and no compellingalternate evidence had been produced. Keeping in mind the nature ofGthe allegations which entailed surreptitious corruption amongst membersof the paramilitary, the disciplinary authority observed that it was unlikelythat there would be independent witnesses to many incidents like thecharge of intimidating KK Sharma (PW-2) to give false testimony, or ofcollecting bribe from BPCL’s contractors.H14. The disciplinary authority noticed that it was an undisputedfact that sum of Rs 10,780 had been recovered from Sharma (CW-1),which was far in excess of the maximum permissible amount of Rs 10.The testimonies of different officials revealed the appellant’s modusoperandi of collecting illegal monies through network of subordinateofficers; and more crucially, his attempts at supressing witnesses andfabricating evidence when caught. The disciplinary authority noted thatthe enquiry officer had followed the prescribed procedure and nochallenge had been made earlier to his impartiality and no request tochange the enquiry officer was ever made. Therefore, no malice or biascould even be suggested at this stage of the disciplinary proceedings.Similarly, the appellant’s attempt to implicate other officials was held tobe irrelevant, as the present enquiry was limited only to the appellant’sconduct.

15. Thus, considering the serious nature of the misconduct andthe rank and duty bestowed upon the appellant, and the multiplicity ofthe charges which called into question both the personal integrity of thedelinquent officer and the collective image of the force, the DisciplinaryAuthority passed the order dated 20.11.1999, imposing exemplarypunishment of dismissal from service under Rule 29(a) read with Rule31(a) - Schedule II of CISF Rules, 1969.

d. Decision of the Appellate Authority

16. The appellant preferred departmental appeal against the orderof his dismissal from service before the Deputy Inspector General ofthe CISF Western Zone. In addition to highlighting contradictions intestimonies and re-interpreting the evidence on record, the appellant alsoraised new defence that the entire proceedings were at the behest ofa particular superior officer.

17. The appellate authority went into each and every contentionof the appellant and after re-appreciating the evidence on record, itdismissed the appeal vide order dated 12.07.2000, concluding that:

“Further I find that there is no material irregularity ormiscarriage of justice in the departmental enquiryproceedings. After considering the gravity of provenmisconduct, the petitioner is not found fit for retention in anarmed force of the Union of India like CISF. The contentionsmade in his appeal petitions are totally devoid of merits both

Ain fact and in law. The punishment imposed by the disciplinaryauthority is not excessive in view of proven misconduct. Assuch I do not find any reason to interfere with the orderspassed by the disciplinary authority and do hereby reject theappeal petition being devoid merits.”

Be. Writ before the High Court

18. further challenge was laid to the orders passed by theDisciplinary and Appellate authorities by way of writ petition underArticle 226 before the High Court of Bombay. The appellant sought insum and substance, re-appraisal of the evidence on record, claiming thatCit was qualitatively insufficient to hold him guilty of the charges levelledagainst him. Additionally, the appellant raised new ground of non-compliance with Rule 34(10)(ii)(b) of CISF Rules, 1969 which specifiedserving of second show cause notice and opportunity of hearingregarding the proposed penalty. The appellant fairly submitted beforethe High Court that it was not his case that the penalty imposed againstDhim was disproportionate, if the charges against him were held to beproved.

19. The High Court, through the order-under-challenge, conducteda detailed re-examination of the facts and material-on-record, expandingthe scope of judicial review under Article 226 and concluded that thereEexisted ample evidence to establish the appellant’s involvement in theorganised collection of illegal monies from BPCL’s contractors and hisrole in fabricating official records and intimidating subordinate officersto falsely testify to support his alternate version.

20. The High Court categorically held that the domestic enquiryFfollowed all procedures and was in conformity with principles of naturaljustice and the appellant had been accorded numerous opportunities ofputting forth his version of events. The CISF Rule sought to be reliedupon by the appellant, was found to have been amended in 1981,therefore, leaving no requirement for separate show cause notice atGthe stage of penalty. The writ petition was accordingly dismissed on05.05.2009.

CONTENTIONS OF PARTIES

21. The instant appeal being the last resort, learned senior counselfor the appellant, once more, took us through the enquiry-record andHhighlighted how the main witness (CW-1) had retracted his statement,

and how there was no corroboration between witnesses and documents.The conduct of the enquiry officer was called into question, contendingthat his decision to put questions to witnesses was unfair. Acting as boththe judge and prosecutor, the enquiry officer was alleged to have vitiatedthe entirety of the proceedings. Till the last minute, the appellantvehemently stuck to his alternate version that the recovered sum ofRs 10,780 was nothing but loan extended between two officials in aprivate capacity, and that the false charges were levelled on him withoblique motives at the instance of certain superiors. Finally, the appellantsought leniency and urged that given another 21 years of remainingservice, imposition of the severest punishment of dismissal from servicewas highly disproportionate which ought to shock the conscience of thisCourt.

22. These contentions have dexterously been countered by thelearned counsel for the respondents, who highlights through specificreference to the impugned order that retraction of CW-1’s statementhad been noted by all prior authorities and that no significant reliancehad been placed on it while holding the appellant guilty. Adequateopportunities were granted and had been availed by him. Attention wasdrawn to the fact that the present proceedings constituted the fifth venuewhere the appellant was pleading his case, with the first four and theCBI having found his guilt concurrently.

23. The deliberate and planned manner of the falsifications, andthe blatant threats made to subordinate officials was highlighted by therespondents, and the loan theory propounded by the appellant was shownas having been recurrently agitated and discarded by all the previousforums. Given the concurrent findings of the enquiry officer, disciplinaryauthority, appellate authority, and the High Court; as well as the detailedevaluation and reasoned order passed by each, it was submitted thatthere remained little scope of re-appreciation or further adjudication.The ratio of Shashi Prasad v. CISF[1] was distilled to drive home theargument that departmental enquiries don’t stand on the same pedestalas criminal proceedings. Acquittal in one would not pre-judge the otherowing to difference in standards of proof. It was claimed that therecould be no re-appreciation of evidence as per Govt of Andhra Pradeshv. Mohd Nasrulla Khan[2], and that Constitutional Courts ought not to

1 2019 7 SCC 797.

2 2006 2 SCC 373.

Aact as appellate authorities against disciplinary proceedings of governmentemployees. Finally, given the delicate nature of employment in paramilitaryforces and breach of the high trust reposed in him by society, the strictpunishment of dismissal of the appellant from service was justified.

ANALYSISB

24. At the outset, it may be noted that the appellant has chosen toraise some new grounds before this Court, despite those issues involvingquestions of fact. Nevertheless, few pertinent questions of servicejurisprudence do arise in this appeal, which we deem appropriate toanswer.CI. Scope of Judicial Review in Service Matters

25. Learned counsel for the appellant spent considerable timetaking us through the various evidences-on-record with the intention ofhighlighting lacunas and contradictions. We feel that such an exercisewas in vain, as the threshold of interference in the present proceedingsDis quite high. The power of judicial review discharged by ConstitutionalCourts under Article 226 or 32, or when sitting in appeal under Article136, is distinct from the appellate power exercised by departmentalappellate authority. It would be gainsaid that judicial review is anevaluation of the decision-making process, and not the merits of thedecision itself. Judicial Review seeks to ensure fairness in treatmentEand not fairness of conclusion. It ought to be used to correct manifesterrors of law or procedure, which might result in significant injustice; orin case of bias or gross unreasonableness of outcome.[3]

26. These principles are succinctly elucidated by three-judgeFBench of this Court in BC Chaturvedi v. Union of India[4 ]in the followingextract:

“12. Judicial review is not an appeal from decision but areview of the manner in which the decision is made. Power ofjudicial review is meant to ensure that the individual receivesfair treatment and not to ensure that the conclusion which theGauthority reaches is necessarily correct in the eye of the court.When an inquiry is conducted on charges of misconduct by apublic servant, the Court/Tribunal is concerned to determinewhether the inquiry was held by competent officer or whether

3 Government of Andhra Pradesh v. Mohd Nasrullah Khan, (2006) 2 SCC 373, ¶ 11.

H4 (1995) 6 SCC 749 ¶ 12.

rules of natural justice are complied with. Whether the findingsor conclusions are based on some evidence, the authorityentrusted with the power to hold inquiry has jurisdiction,power and authority to reach finding of fact or conclusion.But that finding must be based on some evidence. Neither thetechnical rules of Evidence Act nor of proof of fact or evidenceas defined therein, apply to disciplinary proceeding. Whenthe authority accepts that evidence and conclusion receivessupport therefrom, the disciplinary authority is entitled to holdthat the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act asappellate authority to reappreciate the evidence and to arriveat its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held theproceedings against the delinquent officer in mannerinconsistent with the rules of natural justice or in violation ofstatutory rules prescribing the mode of inquiry or where theconclusion or finding reached by the disciplinary authorityis based on no evidence. If the conclusion or finding be suchas no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, andmould the relief so as to make it appropriate to the facts ofeach case.13. The disciplinary authority is the sole judge of facts. Whereappeal is presented, the appellate authority has coextensivepower to reappreciate the evidence or the nature ofpunishment. In disciplinary inquiry, the strict proof of legalevidence and findings on that evidence are not relevant.Adequacy of evidence or reliability of evidence cannot bepermitted to be canvassed before the Court/Tribunal. In Unionof India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364: (1964) 1 LLJ 38] this Court held at p. 728 that if theconclusion, upon consideration of the evidence reached bythe disciplinary authority, is perverse or suffers from patenterror on the face of the record or based on no evidence atall, writ of certiorari could be issued.”

27. These parameters have been consistently reiterated by thisCourt in catena of decisions, including:

A(i) State of Tamil Nadu v. S Subramaniam, (1996) 7 SCC 509.

(ii) Lalit Popli v. Canara Bank, (2003) 3 SCC 583.

(iii) Himachal Pradesh State Electricity Board Ltd v. MaheshDahiya, (2017) 1 SCC 768.

B28. It is thus well settled that the Constitutional Courts whileexercising their powers of judicial review would not assume the role ofan appellate authority. Their jurisdiction is circumscribed by limits ofcorrecting errors of law, procedural errors leading to manifest injusticeor violation of principles of natural justice. Put differently, judicial reviewis not analogous to venturing into the merits of case like an appellateCauthority.

29. The High Court was thus rightly concerned more about thecompetence of the enquiry officer and adherence to natural justice, ratherthan verifying the appellant’s guilt through documents and statements. Itclearly noted that evidence was led, cross-examination was conductedDand opportunities of addressing arguments, raising objections, and filingappeal were granted. The conclusion obtained was based upon thesevery evidences and was detailed and well-reasoned. Furthermore, theHigh Court didn’t restrict the scope of judicial review, rather adopted aliberal approach, and delved further to come to its own independentEconclusion of guilt. Similarly, we have no doubt in our minds that theappellate authority had carefully dealt with each plea raised by theappellant in his appeal and had given detailed responses to all thecontentions to satisfy the appellant’s mind. The disciplinary authority toowas impeccable and no infirmity can be found in the report of the enquiryofficer either.F

30. Even in general parlance, where an appellate or reviewingCourt/authority comes to different conclusion, ordinarily the decisionunder appeal ought not to be disturbed in so far as it remains plausible oris not found ailing with perversity. The present case is neither one wherethere is no evidence, nor is it one where we can arrive at differentGconclusion than the disciplinary authority, especially for the reasons statedhereunder.

II. Appropriateness of procedure and PNJ

31. Significant emphasis has been placed by the appellant on thefact that the enquiry officer put his own questions to the prosecutionH

witness and that he cross-examined the witnesses brought forth by thedefence. This, it is claimed, amounts to making the prosecutor the judge,in violation of the natural justice principle of “nemo judex in sua causa”.However, such plea is misplaced. It must be recognized that, underSection 165, Evidence Act, judges have the power to ask any question toany witness or party about any fact, in order to discover or to obtainproper proof of relevant facts. While strict rules of evidence areinapplicable to disciplinary proceedings, enquiry officers often putquestions to witnesses in such proceedings in order to discover the truth.Indeed, it may be necessary to do such direct questioning in certaincircumstances. Further, learned counsel for the appellant, except formaking bald allegation that the enquiry officer has questioned thewitnesses, did not point to any specific question put by the officer thatwould indicate that he had exceeded his jurisdiction. No specific maliceor bias has been alleged against the enquiry officer, and even during theenquiry no request had been made to seek replacement; thus,evidencing how these objections are nothing but an afterthought.

32. Rather it appears that the delinquent person received fairtrial, which can illustratively be determined by analysing whether hereceived an opportunity of adducing evidence, cross-examining witnessesand whether depositions were recorded in his presence.[5] The recordclearly elucidates that all these essentials had been duly observed in the

present proceedings. Opportunity to seek assistance of another officerwas accorded, right of making representation was granted before eachauthority, multiple opportunities were granted to lead evidence, cross-examine witnesses, and raise objections. The appellant exercised mostof these options, though some were given up despite reminders. Minordelays on part of the appellant were ignored and each concern of hishad been addressed through detailed reasons.

III. Effect of criminal enquiry on disciplinary proceedings

33. The incident of 28.02.1999 raised serious questions ofcriminality under the Indian Penal Code and the Prevention of CorruptionAct, as well as of violation of Service Regulations and administrativemisconduct. Thus, in addition to appointment of enquiry officer, theauthorities also registered criminal complaint with the CBI. Afterinvestigation, the CBI though did not find adequate material to launchcriminal prosecution against the appellant but through its self-speaking

5 Union of India v. T.R. Varma, 1958 SCR 499 ¶ 10.

Areport dated 07.03.2000, the CBI recommended major disciplinary actionagainst the appellant and few others.

34. It is beyond debate that criminal proceedings are distinct fromcivil proceedings. It is both possible and common in disciplinary mattersto establish charges against delinquent official by preponderance ofBprobabilities and consequently terminate his services. But the same setof evidence may not be sufficient to take away his liberty under ourcriminal law jurisprudence.[6] Such distinction between standards of proofamongst civil and criminal litigation is deliberate, given the differences instakes, the power imbalance between the parties and the social costs ofan erroneous decision. Thus, in disciplinary enquiry, strict rules ofCevidence and procedure of criminal trial are inapplicable, like say,statements made before enquiry officers can be relied upon in certaininstances.[7]35. Thus, the appellant’s contention that he should be exoneratedin the present proceedings as no criminal chargesheet was filed by theDCBI after enquiry, is liable to be discarded.[8] The employer always retainsthe right to conduct an independent disciplinary proceeding, irrespectiveof the outcome of criminal proceeding. Furthermore, the CBI reportdated 07.03.2000 does recommend major disciplinary action against theappellant. The said report also buttresses the respondent’s case.

EIV. Punishment and plea of leniency

36. In our considered opinion, the appellant’s contention that thepunishment of dismissal was disproportionate to the allegation ofcorruption, is without merit. It is settled legal proposition that theDisciplinary Authority has wide discretion in imposing punishment for aFproved delinquency, subject of course to principles of proportionality andfair play. Such requirements emanate from Article 14 itself, whichprohibits State authorities from treating varying-degrees of misdeedswith the same broad stroke. Determination of such proportionality is afunction of not only the action or intention of the delinquent, but mustGalso factor the financial effect and societal implication of suchmisconduct.[9] But unlike in criminal cases, in matters of disciplinaryproceedings Courts only interfere on grounds of proportionality when

6 Karnataka SRTC v. MG Vittal Rao, (2012) 1 SCC 442, ¶ 11.

7 Ajit Kumar Nag v. Indian Oil Corp Ltd (2005) 7 SCC 764, ¶ 11.

8 BHEL v. M Mani, (2018) 1 SCC 285, ¶ 20-22, 33.

9 Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532, ¶ 14-16.

they find that the punishment awarded is inordinate to high degree, orif the conscience of the Court itself is shocked. Thus, whereas impositionof major penalty (like dismissal, removal, or reduction in rank) would bediscriminatory and impermissible for trivial misdeeds; but for graveoffences there is need to send clear message of deterrence to thesociety. Charges such as corruption, misappropriation and grossindiscipline are prime examples of the latter category, and ought to bedealt with strictly.

37. Applying these guidelines to the facts of the case in hand, it isclear that the punishment of dismissal from service is far fromdisproportionate to the charges of corruption, fabrication and intimidationwhich have unanimously been proven against the appellant. Taking anyother view would be an anathema to service jurisprudence. If we wereto hold that systematic corruption and its blatant cover-up are inadequateto attract dismissal from service, then the purpose behind having suchmajor penalties, which are explicitly provided for under Article 311 ofthe Constitution, would be obliterated.

38. Still further, the appellant’s actions would most probably havecaused huge consequential losses to BPCL and lowered the reputationof the CISF amongst members of the public. Given the paramilitarynature of the appellant’s force, sense of integrity, commitment, discipline,and camaraderie is paramount.[10] This expectation is only heightened inthe case of the appellant given how he was specifically tasked withweeding out corruption and conducting surprise raids. Once shatteredthrough acts of intimidation, forgery, and corruption; only the severestpenalty ought to be imposed.

CONCLUSION

39. In light of the above discussion, we do not find any merit inthis appeal which is accordingly dismissed.

Divya Pandey

Appeal dismissed.