Calcutta High Court
Dr. Bijaya Prasad Samantaray vs The Board Of Trustees For The Port Of … on 16 January, 2025
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present :-
THE HON'BLE JUSTICE SHAMPA DUTT (PAUL)
WPO/408/2011
DR. BIJAYA PRASAD SAMANTARAY
VS
THE BOARD OF TRUSTEES FOR THE PORT OF KOLKATA & ORS.
For the Petitioner : Mr. Sanjib Kr. Mukhopadhyay, Adv.
Ms. Aparupa Bhattacharya, Adv.
For the Respondent : Mr. Kallol Basu, Sr. Adv.
Mr. Ashok Kumar Jena, Adv.
Hearing concluded on : 12.12.2024
Judgment on : 16.01.2025
Shampa Dutt (Paul), J. :
1. The present writ petition has been preferred praying for direction upon the
respondents and each one of them, their men, agents, assignees and
subordinate to rescind, recall, revoke and/or withdraw the enquiry
proceeding, findings of the Enquiry Officer, penalty order passed by the
Disciplinary Authority and the Appellate Authority’s order.
2
2. The petitioner during his service tenure faced departmental enquiry which
has been challenged in the present case. The charges as framed are as
follows:
ARTICLE OF CHARGE – I
That the said Dr. Bijay Prasad Samantaray is charged with misconduct
inasmuch as while working as Health Officer under Medical Department he
issued G-20 Bill dated 30.09.2004 after more than three years from receipt
of Sr. Accounts Officer (Pre-Audit)‟s letter bearing No. 33 dated 27.09.2001
advising issue of pay order of Rs.17,608/- in favour of Sri Ganga Prasad,
Safai Mazdoor, Item No.161 being the refund of past salary attached by the
Court.
By the above act, the said Dr. Samantaray has exhibited gross
irresponsibility and neglect of duty which is unbecoming of an Office of
Kolkata Port Trust.
(PROVED)
ARTICLE OF CHARGE – II
That the said Dr. Bijay Prasad Samantaray is charged with misconduct
inasmuch as while working as Health Officer under Medical Department he
did not allow Sri Sumarilal, Safai Mazdoor, Item No.297 to resume duty on
16.08.2004 and unnecessarily caused harassment by deferring the
resumption order upto 28.09.2004, despite the fact that Sri Sumarilal
prayed for resumption of duty on 16.08.2004, on the ground that said
Sumarilal was on unauthorized absence.
3
By the above act, the said Dr. Samantaray had exhibited gross
irresponsibility and neglect of duty, which is unbecoming of an Officer of
Kolkata Port Trust.
(PROVED)
ARTICLE OF CHARGE – III
That the said Dr. Bijaya Prasad Samantaray is charged with misconduct
inasmuch as while working as Health Officer under Medical Department he
had submitted Family Declaration Card bearing No. MO/0855 on
01.10.1983 declaring his parents as dependent on him and had availed the
LTC benefits in the Block Year 1984-1987 in favour of his parents although
they were never dependent on him.
By giving such false declaration and also by drawing financial benefits in
unauthorized manner, the said Dr. Samantaray had exhibited lack of
integrity violating Regulation 3 of CPT Employees‟ (Conduct) Regulations,
1987, which is unbecoming of an Officer of Kolkata Port Trust.
(PROVED)
3. The Enquiry Officer conducting an extensive enquiry in respect of all the
charges framed against the petitioner and relying upon the evidence and
documents, gave his findings as follows:-
“4.73 On scrutinising the oral and
documentary evidences relating to three charges
framed against Dr. B.P. Samantaray the charge
officer it is found that:-
4
i. the charged officer D. B.P. Samantaray the
then Health Officer cancelled the pay order
which was prepared by Sri Partha Chakraborty
the concerned dealing clerk, MW-8 and was put
before him on 08.10.2001 (Exbt. M-XVII) for
refund of Rs.17,608/- to Sri Ganga Prosad, Item
No.161 on the basis of the advice bearing No.33
dated 27.09.2001 (Exbt. M-XIII) from Audit
Section (C), Finance Department was clearly
stated by Sri Indra Nath Adhya, Asstt.
Administrative Officer, MW-4 in his recorded
statement (Exbt. M-XXV). As such no refund was
made in 2001.
Instead of issuing pay order the C.O.
unnecessary delayed it by issuing a letter
No.HO/Insolve/II/161/2 dated 02.11.2001
(Exbt. M-XVIII) asking for reexamination of the
case and according to MW-4 he did not take any
action till 2004. On pursuance of Sri Indra Nath
Adhya, MW- 4 with concerned officer/dealing
clerk by issuing letters to Senior Accounts Office
(Pre-Audit) the mater to refund Rs.17,608/- to Sri
5Ganga Prosad the safai Mazdoor the pay order
dated 30.09.2004, G-20 bill was raised on
30.09.2004 and finally the payment was made
to Sri Ganga Prosad on 30.09.2004.
It is not understood why the Health Officer Dr.
B.P. Samantaray did not comply on getting the
advice from the Finance Department which is the
controlling department and as a controlling
department it aised the bill for refund of Rs:
17,608/- in favour of Sri Ganga Prosad, Safai
Mazdoor. It was prudent on his part to comply
with the advice of Finance Department. It was
not necessary on his part to make any further
query when the finance already issued the G-20
Bill.
Sri Asit Kumar Mondal, M.W-3 and Sri Partho
Chakraborty MW-8 and Sri Soumendu Bikash
Kar, MW-7 also corroborated the fact that the
Health Officer did not comply wit the advice in G-
20 Bill No.33 dated 27.09.2001 (Exbt. M-XIII)
issued by Pre-Audit Section for Rs. 17.608/-
addressed to CMO with attention, Health Officer.
6
During the period from 03.11.2001 to
27.07.2004 the C.O. even did not feel it
necessary to issue at least a reminder to SAO
(Pre-Audit) in response to Exbt. M-XVIII which
palpably indicate his lackadaisical attitude. On
the thrust of Union by letter dated 15.07.2004
and dated 30.07.2004 the matter was pursued
and G-20 bill was prepared on 30.07.2004. If
Union did not pursue the matter he continued to
remain in dormant state for indefinite period
Hence the above mentioned facts and
circumstances prove that the charge framed
against Dr. B.P. Samantaray was established
ii. In regard to article of charge-Il, Dr. B.P.
Samantaray the Health Officer and charged
officer did not allow Sri Sumarilal, Safai Mazdoor
to resume duty when he reported to duty on
16.08:2004. Instead he issued a letter to Sri
Sumarilal for submission of Medical papers/Bills
related to his wife’s illness. When Sri Sumarilal
in his application dated 21.08.2004 stated his
inability to submit medical papers, C.O again
7ordered put up the case before CMO. Finally he
was allowed to resume duty w.e.f. 29.09.2004
by the Health Office and C.O. vide his letter
dated 28.09.2004.
Sri Indra Nath Adhya MW-4 in his statement at
Dock Vigilance Office (Exbt. M-XXVI) stated that
Sri Sumarilal, Safai Mazdor, Item No.297 was on
leave from 15.12.2003 to 03.01.2004 on the
ground of his mother’s illness and overstayed
from 04.01.2004 due to his wife’ illness and sent
medical certificates in support of his wife’s
illness. Sri Sumarilal could have been advised by
Health Officer i.e. C.O. to resume his duty
on16.08.2004 when he reported for duty without
waiting an order of CMO. He was competent
enough to take his own decision in the matter.
Unnecessary the matter was delayed and Sri
Sumarilal was allowed to resume duty w.e.f.
29.09.2004.
Sri Asit Kumar Mondal, MW-3 stated that the
charge officer was fully aware of expiry of
mother of Sri Sumarilal and his wife’s illness but
he dillydallied the matter and did not consider
8
the matter to allow Sri Sumarilal to resume the
duty and could place the matter before CMO
immediately after receipt of application for
resumption of duty. He could also take sue-motto
action.
Dr. B.P. Samantaray, Sr. Health Officer and C.O.
in his statement dated 12.05.2005 against the
question No. 14 replied that considering the
nearing retirement, expiry of mother, illness of
wife etc. and after discussion with CMO Sri
Sumarilal was allowed to resume duty. If Dr.
Samantaray took this decision earlier by taking
initiative instead of dealing the matter
perfunctionarily, the delay occurred in
resumption of duty could have been avoided.
Due to this negligence of C.O. to act expeditiously
the Head of Medical Department conveyed
following remark vide his office letter No.
CMO/V/3/1048 dated 04.08.2005 (Exbt. M-XVI)
as follows:-
“The mater had been enquired and it was found
that delay in both the cases was far improper
9dealing of both the cases by the then Health
Officer of Health Section”
In view of the above facts and circumstances the
article of charge-Il is established fully.
iii. Dr. B.P. “Samantaray in his statement
recorded at Dock Vigilance Office on 02.06.2005
that his father retired might be in 1986 from
Electricity Board, Orissa and was drawing his
pension from Government of Orissa. He
confirmed that he never availed of any
LTC/medical bill in respect of his parents from
Kolkata Port Trust at any time in his service. But
FA&CAO in his, letter No. Fin/LTC/17 dated
01.07.2005 (Ext. M-XXXV) with enclosures (Exbt.
M-XXXVa) and (Exbt. M-XXXVb) mentioned that
Dr. B.P. Samantaray,. C.O. performed his
journey in 1984-1987 block to Haridwar and
back with his family members including his
parents. But names of his parents were not
included in the list of the family members.
Whether names of parent included in F.D. Card
No. 13151 and not included in F.D. Card
10
No.0855 whether parent’s name deleted whether
they left for Cuttack to stay with C.O.’s brother
can be a matter for his record but officially
parent’s name cannot be included in F.D. Card of
Kolkata Port Trust as they were never dependent
on him.
On examining the enclosures attached with letter
vide. No. Fin/4288 dated 13.11.2007 of
FA&CAO, it appeared from enclosure (i) that Dr.
B.P. Samantaray declared his father Mr. J.K
Samantaray and mother Mrs. P. Samantaray
along with others as his wholly dependent
family members and as per enclosure (iii) of the
above letter Dr. B.P. Samantaray applied on
l2.10.1987 for the bill of cost under LTC for the
said journey to Haridwar by A/C-2 tier for his
said parents along with other family members
and as per enclosure (iv) page 2 dated
12.10.1987 Dr. B.P. Samantaray received
Rs.3,440/- as advance for the said journey to
Haridwar.
The facts have also been admitted by C.O. as
follows:-
11
a. His father after his retirement in 1986
was fully dependent upon him cannot be a fact
whether he received pensionary benefit or not.
b. C.O. admitted in his written brief at
page 18 that his parents availed LTC as per
Exbt. M-XXXVb only in the block year 1984-
1987.
In view of the above facts and circumstances the
article of charge-III is also established.
4.74 Conclusively I am of the opinion that the
charged officer failed miserably to defend the
charges framed against him. He instead to
defend charges tried to misguide the Enquiry
Officer and wanted to dislocate its smooth
process on various falsified grounds. He also
tried to shield his charges by many cooked
stories and tried to delay the enquiry by citing
that he has filed writ before Hon‟ble High Court
and E.O. has to suspend the enquiry until there
is an order from the Higher Courts. But I did not
find any order passed on me by the Hon‟ble High
Court till passing of this final order.”
12
4. The petitioner appealed against the said order, which was also dismissed
by the appellate authority vide order dated 17.01.2011. The findings of
the appellate authority dismissing the appeal filed by the petitioner
against the report of the Enquiry Officer is as follows :-
“The EO in his findings of the inquiry
held that all the three charges brought
against the C.O were established.
A copy of the same report was sent to
Dr. Samantaray under cover of letter no
Vig/18/2006/53 dt 08.1.2010 for his comments
on the findings of the enquiry. The C.O under
cover of his letter no BPS/DW/2007/161 dt
27.1.2010 submitted his representation in the
matter refuting all the three charges.
The Dy Chairman and the Disciplinary
Authority having considered the findings of the
inquiry, evidences adduced in support and
against the charges in the inquiry and also the
representation made by the C.O has agreed with
the findings of the E.O in respect of all three
charges and had passed order vide No
Vig/18/2006/1111 dt 31.08.2010 for imposition
of the penalty of reduction of pay of Dr. B.P.
Samantaray by three stages for a period of one
year with the further instruction that he will not
earn increments of pay during the period of such
reduction and that on expiry of such period, the
reduction will have the effect of postponing the
future increments of pay. It is further ordered by
13the Disciplinary Authority that the total amount
drawn by the charged officer, unauthorisedly, in
connection with LTC for his parents be recovered
from him in full, in one installment.
The Disciplinary Authority while
imposing the above punishment against Dr.
B.P. Samantaray has also observed that a
lenient view may be taken against him in
view of the fact that he is at the fag end of
his career (superannuating on 29.2.2012).
Dr. B.P. Samantary under cover of his
letter No BPS/Appeal/2010/20 dt. 08.10.2010
addressed to the undersigned had submitted his
appeal, dt 06.10.2010, under Regulation 15 of
Calcutta Port Trust Employees‟ (C.C.A)
Regulations, 1987, against the said order of the
Dy Chairman & Disciplinary Authority. He has
also submitted one rejoinder no
BPS/Appeal/2010 dt: 09.12.2010 to his appeal.
The undersigned being the Appellate
Authority has since taken into consideration all
the circumstances of the case, in the light of the
contents of the aforesaid appeal and its rejoinder
as made by Dr. B.P. Samantaray, and also the
comments of the Dy Chairman & D.A, along with
the relevant records of the case placed before
me.
The undersigned is satisfied that the
order imposing the punishment appealed against
was passed by the then Dy Chairman & D.A
after weighing all the available evidences on
14record and with due application of mind and that
the penalties imposed were adequate.
The undersigned does not find any
ground for interfering with the order of the Dy
Chairman & Disciplinary Authority.
The appeal dt 06.10.2010 and its
rejoinder of Dr. B.P. Samantaray, Sr Medical
Officer, Medical Department, KoPT (now Health
Officer and O/c Workshop Dispensary), as
mentioned above, is hereby rejected.
The Dy Chairman & D.A is advised to
keep his order dt 31.8.2010 unaltered.”
5. Written notes filed by both the parties have been considered.
6. The Supreme Court in the State of Rajasthan and others – vs – Heem
Singh, in Civil Appeal No. 3340 of 2020 decided on 29th October,
2020 held :-
“33. In exercising judicial review in
disciplinary matters, there are two ends of
the spectrum. The first embodies a rule of
restraint. The second defines when
interference is permissible. The rule of
restraint constricts the ambit of judicial
review. This is for a valid reason. The
determination of whether a misconduct
has been committed lies primarily within
the domain of the disciplinary authority.
The judge does not assume the mantle of
the disciplinary authority. Nor does the
judge wear the hat of an employer.
Deference to a finding of fact by the
disciplinary authority is a recognition of
the idea that it is the employer who is
responsible for the efficient conduct of
their service. Disciplinary enquiries have
to abide by the rules of natural justice. But
15they are not governed by strict rules of evidence
which apply to judicial proceedings. The
standard of proof is hence not the strict
standard which governs a criminal trial, of
proof beyond reasonable doubt, but a civil
standard governed by a preponderance of
probabilities. Within the rule of
preponderance, there are varying approaches
based on context and subject. The first end of
the spectrum is founded on deference and
autonomy – deference to the position of the
disciplinary authority as a fact finding
authority and autonomy of the employer in
maintaining discipline and efficiency of the
service. At the other end of the spectrum is
the principle that the court has the
jurisdiction to interfere when the findings
in the enquiry are based on no evidence or
when they suffer from perversity. A failure
to consider vital evidence is an incident of
what the law regards as a perverse
determination of fact. Proportionality is an
entrenched feature of our jurisprudence. Service
jurisprudence has recognized it for long years
in allowing for the authority of the court to
interfere when the finding or the penalty
are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies
in maintaining a steady sail between the
banks of these two shores which have been
termed as the two ends of the spectrum.
Judges do not rest with a mere recitation of the
hands-off mantra when they exercise judicial
review. To determine whether the finding in
a disciplinary enquiry is based on some
evidence an initial or threshold level of
scrutiny is undertaken. That is to satisfy
the conscience of the court that there is
some evidence to support the charge of
misconduct and to guard against
perversity. But this does not allow the court to
re-appreciate evidentiary findings in a
disciplinary enquiry or to substitute a view
which appears to the judge to be more
appropriate. To do so would offend the first
principle which has been outlined above. The
16ultimate guide is the exercise of robust common
sense without which the judges‟ craft is in
vain.”
7. In B. C. Chaturvedi – vs – Union of India and others [(1995) 6
Supreme Court Cases 749 in Civil Appeal No. 9830 of 1995], the
Supreme Court held that :-
“18. A review of the above legal position would
establish that the disciplinary authority, and on
appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline. They
are invested with the discretion to impose
appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of
judicial review, cannot normally substitute its
own conclusion on penalty and impose some
other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority
shocks the conscience of the High
Court/Tribunal, it would appropriately mould the
relief, either directing the disciplinary/appellate
authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional
and rare cases, impose appropriate punishment
with cogent reasons in support thereof.
23. It deserves to be pointed out that the mere
fact that there is no provision parallel to Article
142 relating to the High Courts, can be no
ground to think that they have not to do complete
justice, and if moulding of relief would do
complete justice between the parties, the same
cannot be ordered. Absence of provision like
Article 142 is not material, according to me. This
may be illustrated by pointing out that despite
there being no provision in the Constitution
parallel to Article 137 conferring power of review
on the High Court, this Court held as early as
1961 in Shivdeo Singh case that the High Courts
too can exercise power of review, which inheres
in every court of plenary jurisdiction. I would say
that power to do complete justice also inheres in
17every Court, not to speak of a court of plenary
jurisdiction like a High Court. Of Course, this
power is not as wide as which this Court has
under Article 142. That, however, is a different
matter.
24. What has been stated above may be
buttressed by putting the matter a little
differently. The same is that in a case of a
dismissal, Article 21 gets attracted, and, in view
of the interdependence of fundamental rights,
which concept was first accepted in the case
commonly known as Bank Nationalisation case,
which thinking was extended to cases attracting
Article 21 in Maneka Gandhi v. Union of India,
the punishment/penalty awarded has to be
reasonable; and if it be unreasonable, Article 14
would be violated. That Article 14 gets attracted
in a case of disproportionate punishment was
the view of this Court in Bhagat Ram v. State of
H.P. also. Now if Article 14 were to be violated, it
cannot be doubted that a High Court can take
care of the same by substituting, in appropriate
cases, a punishment deemed reasonable by it.”
8. In Civil Appeal No. 5848 of 2021 (Union of India & Ors. vs. Dalbir
Singh) the Supreme Court held (relevant paragraphs are reproduced
herein):-
“25. This Court in Ajit Kumar Nag v.
General Manager (PJ), Indian Oil Corpn.
Ltd., Haldia & Ors., (2005) 7 SCC 764 held
that the degree of proof which is necessary
to order a conviction is different from the
degree of proof necessary to record the
commission of delinquency. In criminal law,
burden of proof is on the prosecution and
unless the prosecution is able to prove the
guilt of the accused “beyond reasonable
doubt”, he cannot be convicted by a court of
law. In a departmental enquiry, on the
other hand, penalty can be imposed on the
delinquent officer on a finding recorded on
the basis of “preponderance of probability”.
18
It was held as under:-
“11. As far as acquittal of the appellant by a
criminal court is concerned, in our opinion, the
said order does not preclude the Corporation
from taking an action if it is otherwise
permissible. In our judgment, the law is fairly
well settled. Acquittal by a criminal court would
not debar an employer from exercising power in
accordance with the Rules and Regulations in
force. The two proceedings, criminal and
departmental, are entirely different. They
operate in different fields and have different
objectives. Whereas the object of criminal trial is
to inflict appropriate punishment on the offender,
the purpose of enquiry proceedings is to deal
with the delinquent departmentally and to
impose penalty in accordance with the service
rules. In a criminal trial, incriminating statement
made by the accused in certain circumstances or
before certain officers is totally inadmissible in
evidence. Such strict rules of evidence and
procedure would not apply to departmental
proceedings. The degree of proof which is
necessary to order a conviction is different from
the degree of proof necessary to record the
commission of delinquency. The rule relating to
appreciation of evidence in the two proceedings
is also not similar. In criminal law, burden of
proof is on the prosecution and unless the
prosecution is able to prove the guilt of the
accused “beyond reasonable doubt”, he cannot
be convicted by a court of law. In a departmental
enquiry, on the other hand, penalty can be
imposed on the delinquent officer on a finding
recorded on the basis of “preponderance of
probability”. Acquittal of the appellant by a
Judicial Magistrate, therefore, does not ipso facto
absolve him from the liability under the
disciplinary jurisdiction of the Corporation. We
are, therefore, unable to uphold the contention of
the appellant that since he was acquitted by a
criminal court, the impugned order dismissing
him from service deserves to be quashed and set
aside.”
(Emphasis Supplied)
19
26. This Court in Noida Entrepreneurs
Association v. NOIDA & Ors. (2007) 10 SCC
385, held that the criminal prosecution is
launched for an offence for violation of a duty,
the offender owes to the society or for breach of
which law has provided that the offender shall
make satisfaction to the public, whereas, the
departmental inquiry is to maintain discipline in
the service and efficiency of public service. It
was held as under:
“11. A bare perusal of the order which has been
quoted in its totality goes to show that the same
is not based on any rational foundation. The
conceptual difference between a departmental
inquiry and criminal proceedings has not been
kept in view. Even orders passed by the
executive have to be tested on the touchstone of
reasonableness. [See Tata Cellular v. Union of
India [(1994) 6 SCC 651] and Teri Oat Estates (P)
Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130] .]
The conceptual difference between departmental
proceedings and criminal proceedings have been
highlighted by this Court in several cases.
Reference may be made to Kendriya Vidyalaya
Sangathan v. T. Srinivas [(2004) 7 SCC 442 :
2004 SCC (L&S) 1011], Hindustan Petroleum
Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471
: 2005 SCC (Cri) 1605] and Uttaranchal RTC v.
Mansaram Nainwal [(2006) 6 SCC 366 : 2006
SCC (L&S) 1341] .
“8. … The purpose of departmental inquiry and
of prosecution are two different and distinct
aspects. The criminal prosecution is launched for
an offense for violation of a duty, the offender
owes to the society or for breach of which law
has provided that the offender shall make
satisfaction to the public. So crime is an act of
commission in violation of law or of omission of
public duty. The departmental inquiry is to
maintain discipline in the service and efficiency
of public service. It would, therefore, be
expedient that the disciplinary proceedings are
conducted and completed as expeditiously as
possible. It is not, therefore, desirable to lay
down any guidelines as inflexible rules in which
the departmental proceedings may or may not be
20stayed pending trial in the criminal cases
against the delinquent officer. Each case requires
to be considered in the backdrop of its own facts
and circumstances. There would be no bar to
proceed simultaneously with departmental
inquiry and trial of a criminal case unless the
charge in the criminal trial is of grave nature
involving complicated questions of fact and law.
Offense generally implies infringement of public
duty, as distinguished from mere private rights
punishable under criminal law. When the trial for
a criminal offense is conducted it should be in
accordance with proof of the offense as per the
evidence defined under the provisions of the
Indian Evidence Act, 1872 [in short „the Evidence
Act‟]. The converse is the case of departmental
inquiry. The inquiry in a departmental
proceeding relates to conduct or breach of duty of
the delinquent officer to punish him for his
misconduct defined under the relevant statutory
rules or law. That the strict standard of proof or
applicability of the Evidence Act stands excluded
is a settled legal position. … Under these
circumstances, what is required to be seen is
whether the departmental inquiry would
seriously prejudice the delinquent in his defense
at the trial in a criminal case. It is always a
question of fact to be considered in each case
depending on its own facts and circumstances.”
27. This Court in Depot Manager, A.P. State
Road Transport Corporation v. Mohd.
Yousuf Miya & Ors., (1997) 2 SCC 699, held
that in the disciplinary proceedings, the question
is whether the respondent is guilty of such
conduct as would merit his removal from service
or a lesser punishment. It was held as under:
“7. …There is yet another reason. The approach
and the objective in the criminal proceedings and
the disciplinary proceedings is altogether distinct
and different. In the disciplinary proceedings, the
question is whether the respondent is guilty of
such conduct as would merit his removal from
service or a lesser punishment, as the case may
be, whereas in the criminal proceedings the
question is whether the offences registered
against him under the Prevention of Corruption
21Act (and the Penal Code, 1860, if any) are
established and, if established, what sentence
should be imposed upon him. The standard of
proof, the mode of enquiry and the rules
governing the enquiry and trial in both the cases
are entirely distinct and different. Staying of
disciplinary proceedings pending criminal
proceedings, to repeat, should not be a matter of
course but a considered decision. Even if stayed
at one stage, the decision may require
reconsideration if the criminal case gets unduly
delayed.” (Emphasis Supplied)
28. Mr. Yadav, learned counsel for the writ
petitioner has submitted that during the
pendency of the writ petition before the High
Court, 9 (1997) 2 SCC 699 the appellants were
given opportunity to produce the registers of the
entrustment of S.L.R. to the writ petitioner. But it
was stated that record was not available being
an old record as the incident was of 1993. The
enquiry was initiated in 2013 after the acquittal
of the writ petitioner from the criminal trial.
Therefore, in the absence of the best evidence of
registers, the oral evidence of use of official
weapon stands proven on the basis of oral
testimony of the departmental witnesses. 29.
The burden of proof in the departmental
proceedings is not of beyond reasonable doubt
as is the principle in the criminal trial but
probabilities of the misconduct. The delinquent
such as the writ petitioner could examine himself
to rebut the allegations of misconduct including
use of personal weapon. In fact, the reliance of
the writ petitioner is upon a communication
dated 1.5.2014 made to the Commandant
through the inquiry officer. He has stated that he
has not fired on higher officers and that he was
out of camp at the alleged time of incident.
Therefore, a false case has been made against
him. His further stand is that it was a terrorist
attack and terrorists have fired on the Camp.
None of the departmental witnesses have been
even suggested about any terrorist attack or that
the writ petitioner was out of camp. Constable
D.K. Mishra had immobilized the writ petitioner
whereas all other witnesses have seen the writ
22
petitioner being immobilized and being removed
to quarter guard. PW-5 Brij Kishore Singh
deposed that 3-4 soldiers had taken the Self-
Loading Rifle (S.L.R.) of the writ petitioner in their
possession. Therefore, the allegations in the
chargesheet dated 25.2.2013 that the writ
petitioner has fired from the official weapon is a
reliable finding returned by the Departmental
Authorities on the basis of evidence placed
before them. It is not a case of no evidence,
which alone would warrant interference by the
High Court in exercise of power of judicial
review. It is not the case of the writ petitioner
that there was any infraction of any rule or
regulations or the violation of the principles of
natural justice. he best available evidence had
been produced by the appellants in the course of
enquiry conducted after long lapse of time.”
9. In the present case, it is apparent that the enquiry authority/disciplinary
authority/appellate authority have all followed the rules of natural
justice. The orders, findings and finally the penalty have all been given on
proper reasons and clear findings, based on evidence. The reasoning
given on the findings have prima facie proved that the petitioner has
committed the irregularities.
10. The Disciplinary Authority in its well reasoned detailed order, gave
specific findings proving the charges of misconduct against the petitioner.
(State of Rajasthan and Ors. Vs. Heem Singh., 2020 SCC OnLine SC
886)
11. The said findings are balanced and not biased, considering that they
are based on extensive evidence, both oral and documentary.
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12. The penalty as imposed by the appointing authority is prima facie
appropriate keeping in view of the magnitude and gravity of the
misconduct. (B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749)
13. A writ Court has the jurisdiction in such proceedings to only ensure that
the person aggrieved has had a fair trial and that principle of natural
justice was followed while deciding the case and as to whether the
punishment given is in proportionate to the offence committed. A writ
Court cannot go into the details of evidence recorded and/or as to the
discrepancies of the said finding and proceedings conducted by a
disciplinary authority.
14. The writ petition being WPO/408/2011 is thus dismissed.
15. Proceedings and orders under appeal are found to be in accordance with
the principles of natural justice and thus require no interference by this
court.
16. All connected applications, if any, stand disposed of.
17. Interim order, if any, stands vacated.
18. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
[Shampa Dutt (Paul), J.]