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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.