Civil Appeal Nos. ____ of 2022 @ SLP(C) No.3524 of 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS._7939-7940 OF 2022

Arising out of

Petitions for Special Leave to Appeal (Civil) No. 3524-25 OF 2022

UNION OF INDIA AND OTHERS ..… APPELLANTS

versus

SUBRATA NATH …... RESPONDENT

AND

CIVIL APPEAL NOS._7941-7942 OF 2022

Arising out of

PETITIONS FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 11021-22 OF 2022

SUBRATA NATH …… APPELLANT

versus

UNION OF INDIA AND OTHERS …... RESPONDENTS

J U D G M E N T

HIMA KOHLI, J.

1-2 By this order, we propose to decide two appeals preferred by the Union of India

and the connected appeals preferred by the private respondent against the common

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judgment and order dated 9

th

September, 2021 passed by the Division Bench of the High

Court at Calcutta in FMA No.679 of 2019 and FMA No. 680 of 2019.

3.For the sake of convenience, the facts stated in the Civil Appeals shall be

referred to. The respondent joined the Central Industrial Security Force

1

as a Constable

on 26

th

February, 1994. On 7

th

November, 2007, the respondent was detailed for ‘C’ shift

duty from 21:00 hours on 7

th

November, 2007 to 05:00 hours on 8

th

November, 2007 at

Alif Nagar Scrap yard situated in the Garden Reach area of the Kolkata Port. On the

next day, i.e., on 8

th

November, 2007, the local police intercepted a Tata-407 truck

loaded with approximately 800 kg. (approx.) of copper wires outside the port premises

and informed the CISF about the said incident on learning that the copper wires had

been removed from the Kolkata Port Trust area. It transpired that the said copper wires

had been removed from the scrap yard of Alif Nagar Kolkata Port in the duration when

the respondent was on duty. The respondent was placed under suspension and charge

sheeted, vide Memorandum dated 7

th

December, 2007. Following are the two articles of

charge framed against the respondent:

“STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST NO. 941400817

CONSTABLE SUBRATA NATH OF CISF UNIT KoPT KOLKATA.

Article of Charge- I

That the said No.941400817 Constable Subrata Nath of CISF Unit KoPT

Kolkata ("C" Coy) while perforating "C" Shift duty from 2100 hrs on 07.11.2007 to

0500 hrs on 08.11.2007 at Alif Nagar Scrap Yard with Arms and Ammunition has

failed to prevent theft of copper wire weighing about 800 Kgs which were laying

with other bundles of copper wire at Alif Nagar Scrap Yard of KoPT under the

security coverage of the said No. 941400817 Constable Subrata Nath.

1 For short ‘CISF’

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The above act on the part of No. 941400817 Constable Subrata Nath

amounts to gross negligence and dereliction of duty being member of a

disciplined Force.

Article of Charge-II

That the said No. 941400817 Constable Subrata Nath of CISF Unit

KoPT Kolkata during the period of his 13 years sendee in CISF has been

involved himself in various delinquencies and thereby awarded 08 (Eight)

punishments. Even then he did not mend himself and has developed an

incorrigible character.”

4.An Inquiry Officer was appointed to conduct the inquiry in respect of the above

charges. During the inquiry, eight prosecution witnesses were examined. However, the

respondent did not produce any witness in his defence. After examining the evidence

and the defence of the respondent, the Inquiry Officer held that both the charges framed

against the respondent were duly proved. The Disciplinary Authority issued a Notice to

Show Cause to the respondent in relation to the inquiry report, in response whereto, he

submitted a representation. Vide order dated 27

th

November, 2008, the Disciplinary

Authority, namely, the Commandant rejected the representation of the respondent. It

was observed that the statements of the prosecution witnesses corroborated with the

scene of the crime and established that theft of copper wires from the Alif Nagar Scrap

Yard had taken place when the respondent was on duty at the duty post. Further, the

prosecution witnesses had proved that the respondent was found to be alert at the duty

post by nine different checking officers, who had checked him in the intervening night on

7

th

/8

th

November, 2007, despite which, he did not report the criminal activities in his duty

area.

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5.Rejecting the plea taken by the respondent that the FIR had recorded the

occurrence of the offence at 1530 hours on 8

th

November, 2007 which indicated that the

theft had not taken place during his duty hours, the Disciplinary Authority held thus:

“12. After taking into account all the above aspect, I am of the opinion that

prosecution witnesses by virtue of corroborative statements supported by

documentary and circumstantial evidences has established, the Articles of

charge-I proved against the charged official. On the other hand, the charged

official could not come up with any convincing materials in his representation to

disprove the Article of charge-I. Even he could not produce any defence witness.

The defence documents produced by him during enquiry could not prove

anything in his favour. The FIR copy produced by him (Defence Exhibit-6)

showing occurrence of offence at about 1530 hours on 08.11.2007 by which he

wanted to refute all claims of theft happening during his duty hours was examined

in depth xxx xxx xxx

xxxxxx

The above complain shows that the recovery of the copper wire was made by the

complainant at 1515 hours on 08.11.2007 whereas the FIR shows the occurrence

of offence at 1530 hours on 08.11.2007 and the offence described as theft of a

vehicle TATA-407 loaded with some coils of copper wire and recovery vehicle was

laid at Alif Nagar KMC Sweeper Quarters. Thus, it means that the recovery of

copper wire was made before the theft occurred, which is improbable and absurd

indeed. It was further observed that FIR shows time of information received at

2200 hours on 08.11.2007, occurrence of theft at 1530 hours while complaint

shows recovery was made at 1515 hours on same day. All these reveal that the

recovery was made well before receiving information by the concerned police

official of West Port Police station and even before occurrence of theft……..…..

Taking all these facts together it is clear that the FIR corroborates the fact of

recovery of copper wire loaded in TATA- 407 vehicle and the statement of PW1,

PW2 & PW8 corroborates the fact that the seized vehicle was held in police

custody in the morning of 08.11.2007. In totality of all the above it is established

that the theft of copper wire from Alif Nagar scrap yard has occurred in the night

of 07/08.11.2007 during the duty period of the charged official and the said

copper wire was later recovered by West Port police and kept at their custody

loaded in TATA-407 vehicle well before the visit of PW1, PW2 and PW8 at the

west port police station in the morning of 08.11.2007……….…As regards Article

of Charge-II, I find that statement of PW4 and documentary evidences held on

record clearly establish that the charged official has developed into incorrigible

character who even after awarding 08 punishments for various delinquencies in

his 13 years of service in CISF has not reformed himself. From the fact and

factual position as assessed, discussed and evaluated above over the

prosecution version and defence version, I find that the findings drawn by the

enquiry officer are fair, reasoned and judicially justified in all respect. I, therefore,

fully agree with the findings of the enquiry officer and hold the charged official

guilty of the Article of Charge-I and Article of Charge-II.”

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6.In view of the above findings and in exercise of the powers conferred under Rule

32 read with Schedule-I and Rule 32 (1) of the Central Industrial Security Force Rules,

2001

2

, the Disciplinary Authority imposed a penalty of dismissal from service on the

respondent. Aggrieved by the order dated 27

th

November, 2008 passed by the

Disciplinary Authority, the respondent preferred an appeal, which was dismissed on 3

rd

February, 2009 with the following observations :

“5. I have carefully considered the appeal preferred by the appellant, the

departmental proceeding files, findings of the enquiry officer and other related

documents held on record and I have applied my mind to the case. I find that the

Articles of charge leveled against the appellant were held proved on the basis of

overwhelming evidence held on record. The enquiry officer had conducted the

enquiry in a fair and judicious manner and afforded him all reasonable

opportunities to rebut the adverse evidence and to submit sufficient material in

support of his defence. He, however, failed to do so. There is also no material

irregularity or miscarriage of justice in this case. The Disciplinary Authority has

passed the final order after considering all aspects of the case held on records

and awarded the penalty of "Dismissal from service" to the appellant vide Final

Order No. V-15014/Maj-04/KoPT/Disc/SN/08/8271 dated 27.11.08 for his failure

to prevent theft of copper wire weighing about 800 kgs which were laying with

other bundles of copper wire at Alif Nagar scrap yard of KoPT under the security

coverage of the appellant while he was performing 'C' shift duty from 2100 hrs on

7.11.2007 to 0500 hrs on 08.11.2007 at Alif Nagar Scrap yard duty post and non-

improving his conduct as expected from a member of disciplined force, in spite of

having been penalized/punished earlier on 08 (Eight) occasions for his

incorrigible habits during his short span of 13 years’ service is commensurate to

the gravity of offence. The appellant has not come up with any cogent and logical

reason that warrants consideration. Many other pleas put forth by the appellant in

his appeal do not have any merit.

6. As such, I do not find any mitigating circumstances to interfere with the order

of penalty dated 27.11.2008 passed by the Disciplinary Authority, i.e.,

Commandant CISF Unit KoPT Kolkata. Hence, the appeal dated 05.12.2008

preferred by the appellant is rejected being devoid of merit.”

7.This was followed by a Revision Petition submitted by the respondent in the

Office of the Inspector General, CISF/NES, which was dismissed vide order dated 19

th

May, 2009, holding inter alia that the charges levelled against him had been proved

2 For short ‘CISF Rules, 2001’

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beyond doubt; that he had been afforded all the reasonable opportunities to defend

himself; that there were no procedural irregularities in conducting the disciplinary inquiry

by the Inquiry Officer or on the part of Disciplinary Authority in dealing with the case of

the respondent and that principles of natural justice had been complied with.

8.Dissatisfied by the order passed by the Revisional Authority upholding the orders

of the Disciplinary Authority and the Appellate Authority, the respondent filed a writ

petition in the High Court of Calcutta, registered as WP No.14102 (W) of 2009. The said

petition was disposed of by the learned Single Judge, vide order dated 25

th

June, 2018

and the punishment of dismissal imposed on the respondent was converted to that of

compulsory retirement primarily on the ground that the authorities had failed to preserve

the relevant records pertaining to the case and one of the vital documents of the inquiry,

namely, the Beat Book, which recorded the time when the respondent had taken charge

from his reliever and the items available on the spot and the time when he handed over

charge to his successor, required examination. Observing that the authorities ought to

have maintained the relevant records of inquiry in view of pendency of the writ petition,

the learned Single Judge set aside the punishment of dismissal from service imposed on

the respondent and compulsorily retired him from service w.e.f. 27

th

November, 2008

alongwith all consequential benefits.

9.The aforesaid order was challenged by the appellants – Union of India in two sets

of appeals (FMA No.679 of 2019 and FMA 680 of 2019), that were disposed of by the

Division Bench, vide the impugned judgment dated 9

th

September, 2021 whereby, the

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decision of the learned Single Judge of substituting the punishment of dismissal

imposed on the respondent with one of compulsory retirement, was quashed and set

aside. Instead, it was directed that the respondent would be entitled to be reinstated in

service along with full back wages from the date of his dismissal. The Disciplinary

Authority was further directed to issue a fresh order of punishment in respect of the

respondent that should commensurate to his negligence and dereliction of duty, other

than a punishment of dismissal, removal from service or compulsory retirement.

10.Questioning the aforesaid judgment, the present appeals have been filed by the

appellants – Union of India. The respondent has also preferred Petitions for Special

Leave to appeal being aggrieved by the directions issued by the High Court calling upon

the Disciplinary Authority to issue a fresh order of punishment qua him upon

reinstatement on a plea that there was no occasion for the Division Bench to have

interfered with the order passed by the learned Single Judge whereby the punishment of

removal from service had been set aside and the respondent was directed to be

compulsorily retired from service.

11.Appearing for the appellants – Union of India, Ms. Aakanksha Kaul, learned

counsel has argued that the impugned judgment is unsustainable for the reason that the

High Court has acted as an Appellate Authority by directing reinstatement of the

respondent, which runs contrary to the law laid down by the Supreme Court in B.C.

Chaturvedi v. Union of India and Others

3

; that the High Court while exercising the

powers vested in it under judicial review, ought not to have stepped into the shoes of the

3 (1995) 6 SCC 749

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Appellate Authority and reappreciated the evidence to arrive at independent findings on

the evidence adduced; that no grievance was raised by the respondent that the rules of

natural justice had been violated or the inquiry had not been conducted in a proper

manner or that the findings arrived at by the Disciplinary Authority were based on no

evidence. Learned counsel asserted that in the instant case, the inquiry was conducted

by a competent officer, rules of natural justice were duly complied with and the findings

arrived at by the Inquiry Officer were based on sufficient evidence. Stating that having

regard to the fact that the charges against the respondent had been proved in a properly

conducted departmental inquiry after giving a reasonable opportunity to the respondent

to defend himself, there was no good reason for the learned Single Judge to have

converted the punishment of dismissal from service imposed by the Disciplinary

Authority and upheld by the Appellate Authority, to compulsory retirement and for the

Division Bench to have further interfered by reassessing the evidence and directing

reinstatement of the respondent in service with full back wages and only thereafter, pass

a fresh order of punishment.

12.Citing the decision in State of Orissa and Others v. Bidyabhushan

Mohapatra

4

, it was contended that keeping in mind the gravity of the established

misconduct, the Disciplinary Authority has the power to impose a punishment on the

delinquent officer and such a punishment is not open for review by the High Court under

Article 226 of the Constitution of India. It was also sought to be urged on behalf of the

appellants that the past conduct of the respondent can be taken into consideration while

4 AIR 1963 SC 779

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awarding penalty, subject to the condition that the same is made a part of a separate

charge, as was done in the instant case. In support of the said submission, learned

counsel cited Central Industrial Security Force and Others v. Abrar Ali

5

.

13.The only submission made by Mr. Ranjan Mukherjee, learned counsel for the

respondent is that the learned Single Judge having directed reinstatement of the

respondent with full back wages, the Division Bench was not justified in passing an

order directing that a fresh order be passed by the Disciplinary Authority commensurate

to the negligence and dereliction of duty on the part of the respondent. Instead, the

appeals preferred by the appellants – Union of India ought to have been dismissed

outright in which event, the punishment of compulsory retirement imposed by the

learned Single Judge would have been restored and attained finality thereby entitling the

respondent to claim his retiral benefits.

14.The point that arises for our consideration is whether in the given facts of the

case, the learned Single Judge and the Division Bench ought to have interfered with the

punishment imposed on the respondent by the Disciplinary Authority and upheld by the

Appellate Authority as also by the Revisional Authority.

15.It is well settled that courts ought to refrain from interfering with findings of facts

recorded in a departmental inquiry except in circumstances where such findings are

patently perverse or grossly incompatible with the evidence on record, based on no

evidence. However, if principles of natural justice have been violated or the statutory

5 (2017) 4 SCC 507

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regulations have not been adhered to or there are malafides attributable to the

Disciplinary Authority, then the courts can certainly interfere.

16.In the above context, following are the observations made by a three-Judge

Bench of this Court in B.C. Chaturvedi (supra) :

“12. 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 reappreciate 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.

13. The disciplinary authority is the sole judge of facts. Where appeal is

presented, the appellate authority has coextensive power to reappreciate

the evidence or the nature of punishment. In a disciplinary inquiry, the

strict proof of legal evidence and findings on that evidence are not relevant.

Adequacy of evidence or reliability of evidence cannot be permitted to be

canvassed before the Court/Tribunal. In Union of India v. H.C. Goel

6

this Court

held at p. 728 that if the conclusion, upon consideration of the evidence reached

by the disciplinary authority, is perverse or suffers from patent error on the face of

the record or based on no evidence at all, a writ of certiorari could be issued.

xxx xxx xxx

xxx xxx xxx

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.

6 (1964) 4 SCR 718

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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.”

[Emphasis laid]

17.In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya

7

, a two Judge

Bench of this Court held as below :

“7. It is now well settled that the courts will not act as an appellate

court and reassess the evidence led in the domestic enquiry, nor

interfere on the ground that another view is possible on the material

on record. If the enquiry has been fairly and properly held and the

findings are based on evidence, the question of adequacy of the

evidence or the reliable nature of the evidence will not be grounds

for interfering with the findings in departmental enquiries. Therefore,

courts will not interfere with findings of fact recorded in

departmental enquiries, except where such findings are based on no

evidence or where they are clearly perverse. The test to find out

perversity is to see whether a tribunal acting reasonably could have

arrived at such conclusion or finding, on the material on record. The courts

will however interfere with the findings in disciplinary matters, if principles

of natural justice or statutory regulations have been violated or if the order

is found to be arbitrary, capricious, mala fide or based on extraneous

considerations. (Vide B.C. Chaturvedi v. Union of India

8

, Union of

India v. G. Ganayutham

9

, Bank of India v. Degala Suryanarayana

10

and High Court of Judicature at Bombay v. Shashikant S. Patil

11

).

[Emphasis laid]

18.In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri

Prabhakara Hari Babu

12

, a two Judge Bench of this Court referred to several

7 (2011) 4 SCC 584

8 (1995) 6 SCC 749

9 (1997) 7 SCC 463

10 (1999) 5 SCC 762

11 (2000) 1 SCC 416

12 (2008) 5 SCC 569

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precedents on the Doctrine of Proportionality of the order of punishment passed by the

Disciplinary Authority and held that :

“21. Once it is found that all the procedural requirements have been complied

with, the courts would not ordinarily interfere with the quantum of punishment

imposed upon a delinquent employee. The superior courts only in some cases

may invoke the doctrine of proportionality. If the decision of an employer is found

to be within the legal parameters, the jurisdiction would ordinarily not be invoked

when the misconduct stands proved.”

19.Laying down the broad parameters within which the High Court ought to exercise

its powers under Article 226/227 of the Constitution of India and matters relating to

disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others

v. P. Gunasekaran

13

held thus :

“12. Despite the well-settled position, it is painfully disturbing to note that

the High Court has acted as an appellate authority in the disciplinary

proceedings, reappreciating even the evidence before the enquiry officer.

The finding on Charge I was accepted by the disciplinary authority and was

also endorsed by the Central Administrative Tribunal. In disciplinary

proceedings, the High Court is not and cannot act as a second court of first

appeal. The High Court, in exercise of its powers under Articles 226/227 of the

Constitution of India, shall not venture into reappreciation of the evidence. The

High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the

proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion

by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or

extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious

that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible

and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence

which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

13 (2015) 2 SCC 610

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(ii) interfere with the conclusions in the enquiry, in case the same has been

conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its

conscience.”

20.In Union of India and Others v. Ex. Constable Ram Karan

14

, a two Judge

Bench of this Court made the following pertinent observations :

“23. The well-ingrained principle of law is that it is the disciplinary authority, or the

appellate authority in appeal, which is to decide the nature of punishment to be

given to the delinquent employee. Keeping in view the seriousness of the

misconduct committed by such an employee, it is not open for the courts to

assume and usurp the function of the disciplinary authority.

24. Even in cases where the punishment imposed by the disciplinary authority is

found to be shocking to the conscience of the court, normally the disciplinary

authority or the appellate authority should be directed to reconsider the question

of imposition of penalty. The scope of judicial review on the quantum of

punishment is available but with a limited scope. It is only when the penalty

imposed appears to be shockingly disproportionate to the nature of misconduct

that the courts would frown upon. Even in such a case, after setting aside the

penalty order, it is to be left to the disciplinary/appellate authority to take a call

and it is not for the court to substitute its decision by prescribing the quantum of

punishment. However, it is only in rare and exceptional cases where the court

might to shorten the litigation may think of substituting its own view as to the

quantum of punishment in place of punishment awarded by the competent

authority that too after assigning cogent reasons.”

21.A Constitution Bench of this Court in State of Orissa and Others (supra) held

that if the order of dismissal is based on findings that establish the prima facie guilt of

great delinquency of the respondent, then the High Court cannot direct reconsideration

of the punishment imposed. Once the gravity of the misdemeanour is established and

the inquiry conducted is found to be consistent with the prescribed rules and reasonable

opportunity contemplated under the rules, has been afforded to the delinquent

14 (2022) 1 SCC 373

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employee, then the punishment imposed is not open to judicial review by the Court. As

long as there was some evidence to arrive at a conclusion that the Disciplinary Authority

did, such an order becomes unassailable and the High Court ought to forebear from

interfering. The above view has been expressed in Union of India v. Sardar

Bahadur

15

.

22.To sum up the legal position, being fact finding authorities, both the Disciplinary

Authority and the Appellate Authority are vested with the exclusive power to examine the

evidence forming part of the inquiry report. On finding the evidence to be adequate and

reliable during the departmental inquiry, the Disciplinary Authority has the discretion to

impose appropriate punishment on the delinquent employee keeping in mind the gravity

of the misconduct. However, in exercise of powers of judicial review, the High Court or

for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its

own conclusion in respect of the penalty imposed unless and until the punishment

imposed is so disproportionate to the offence that it would shock the conscience of the

High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P.

Gunasekaran (supra). If the punishment imposed on the delinquent employee is such

that shocks the conscience of the High Court or the Tribunal, then the

Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed.

Only in exceptional circumstances, which need to be mentioned, should the High

Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent

reasons therefor.

15 (1972) 4 SCC 618

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23.Applying the law laid down above to the instant case, we are of the view that the

High Court ought not to have interfered with the findings of fact recorded by the

Disciplinary Authority. Charge-1 levelled against the respondent pertained to negligence

and dereliction of duty attributed to him for having failed to prevent theft of 800 kgs of

copper wires lying at Alif Nagar scrap yard under his security cover while performing

duty in the late hours of 7

th

November, 2007 upto the early hours of 8

th

November, 2007.

Records reveal that the Disciplinary Authority has minutely examined the entire evidence

brought on record including the deposition of eight prosecution witnesses each of whom

have corroborated the charges levelled against the respondent, duly supported by

documentary and circumstantial evidence for arriving at the conclusion that the Articles

of Charge-I stood proved against the respondent. Pertinently, the respondent did not

produce any defence witness and the documents produced by him did not prove

anything in his favour.

24.The contention of the respondent that the FIR registered against him mentioned

the time of the occurrence as 15:30 hours on 8

th

November, 2007, when he was not on

duty, was also analyzed in depth by the Disciplinary Authority, who referred to the fact

that the FIR was lodged suo moto by the West Port Police Station on the basis of a

complaint submitted by the Office-Incharge of the Police Station who had recovered the

copper wires loaded in a commercial vehicle which was brought to the police station and

kept at the police station compound. The complaint recorded that recovery of copper

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wires was made by the complainant at 15:15 hours on 8

th

November, 2007 whereas, the

FIR showed the time of the information received as 22:00 hours on 8

th

November, 2007,

and the time of the occurrence of the theft as 15:30 hours. Noting the discrepancies in

the FIR which were in contradiction with the depositions of PW1, PW2 and PW8 who

had stated that the information of the theft was received long before 22:00 hours on 8

th

November, 2007, the Disciplinary Authority discarded the version of the respondent as

unacceptable and went on to hold that the evidence fairly established that the theft of

the copper wires had occurred in the intervening night of 7

th

/8

th

November, 2007, during

the duty hours of the respondent. Accordingly, the Disciplinary Authority concluded that

Charge-I was proved against the respondent.

25.As for Charge-II, the Disciplinary Authority noted the statement of SI/Min. A.K.

Dua (PW-4) who was working as incharge of the Document Section of the Unit and had

been summoned to prove copies of the service documents related to the respondent

and on going through the said documentary evidence, noted that the respondent had

been awarded eight punishments over a period of thirteen years of service for various

delinquencies but he had not reformed himself. In view of his continuous misconduct in

the past coupled with the serious offence of theft of 800 kgs. copper wires, subject

matter of Charge-I, the Disciplinary Authority opined that the respondent was unfit to be

retained in a disciplined force and therefore, directed his dismissal from service.

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26.We have noted above that the findings of the Disciplinary Authority had met with

the approval of the Appellate Authority and the Revisional Authority. However, the

learned Single Judge overturned the order of dismissal from service and converted the

same to compulsory retirement on the sole ground of non-availability of the original

record, more specifically, the Beat Book, while giving a go-by to the extract of the Beat

Book that was produced before the Inquiry Officer and the fact that the respondent had

admitted the said document. The learned Single Judge also ignored the fact that the

Beat Book was not the only piece of document produced before the Inquiry Officer.

There were depositions of other witnesses produced by the department to prove the

charges levelled against the respondent and the said witnesses had corroborated the

version of the Department. At no stage, did the learned Single Judge observe that the

departmental inquiry was vitiated on account of violation of the rules of natural justice or

that the inquiry had been conducted in gross violation of the statutory rules.

27.The Division Bench went a step further and proceeded to reappreciate the

evidence and observed that it was not persuaded to conclude that such a major theft of

800 kgs comprising of 42 bundles of copper wires could have happened “in the blink of

an eyelid” despite holding that the view of the learned Single Judge regarding non-

production of the original Beat Book was unsustainable. The Court held that the

allegation of connivance in the theft levelled against the respondent was presumptive

and there wasn’t enough evidence to conclude that theft of such a magnitude could

have happened during the duty period of the respondent alone, yet charge-I pertaining

to negligence and dereliction of duty on the part of the respondent was sustained. At the

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same time, the order passed by the learned Single Judge directing substitution of the

punishment of dismissal with that of compulsory retirement was set aside and the

respondent was directed to be reinstated in service with full back wages, while giving

liberty to the Disciplinary Authority to issue a fresh order of punishment commensurate

to the negligence and dereliction of duties on his part, except for punishment of

dismissal or removal from service or compulsory retirement.

28.We are unable to commend the approach of the learned Single Judge and the

Division Bench. There was no good reason for the High Court to have entered the

domain of the factual aspects relating to the evidence recorded before the Inquiry

Officer. This was clearly an attempt to reappreciate the evidence which is impermissible

in exercise of powers of judicial review vested in the High Court under Article 226 of the

Constitution of India. We are of the opinion that both, the learned Single Judge as well

as the Division Bench, fell into an error by setting aside the order of dismissal from

service imposed on the respondent by the Disciplinary Authority and upheld by the

Appellate Authority.

29.We find ourselves in complete agreement with the findings returned by and

conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate

Authority and upheld by the Revisional Authority in respect of both the Articles of Charge

levelled against the respondent and the punishment imposed on him. The respondent

being a member of the disciplined force, was expected to have discharged his duty

diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs.

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copper wires from the spot where he was performing his duty. Further, the records

reveal that the respondent did not mend his ways during thirteen years of service

rendered by him and was awarded eight punishments for various delinquencies out of

which, three punishments included stoppage of increment on two occasions for one year

without cumulative effect twice and stoppage of increment for two years without

cumulative effect on one occasion. In such circumstances, the desirability of continuing

the respondent in the Armed Forces is certainly questionable and the Disciplinary

Authority could not be expected to wear blinkers in respect of his past conduct while

imposing the penalty of dismissal from service on him.

30.Therefore, it is deemed appropriate to quash and set aside the impugned

judgment and order dated 9

th

September, 2021 passed by the Division Bench of the High

Court of Calcutta in FMA No.679 of 2019 and FMA No. 680 of 2019 and the order dated

25

th

June, 2018 passed by the learned Single Judge in WP No.14102 (W) of 2009, while

restoring the findings and the conclusion arrived at by the Disciplinary Authority, as

elaborated in the order dated 27

th

November, 2008, duly upheld by the Appellate

Authority, vide order dated 3

rd

February, 2009 and endorsed by the Revisional Authority,

vide order dated 19

th

May, 2009. In our view, the penalty of dismissal from service

imposed on the respondent is commensurate with the gross negligence and dereliction

of duty on his part.

31.As a result, both the appeals preferred by the Union of India (arising out of

Petitions for Special Leave to Appeal (C) Nos. 3524-25/2022) are allowed and appeals @

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Petitions for Special Leave to Appeal (Civil) Nos. 11021-22/2022 filed by the private

respondent are dismissed, while leaving the parties to bear their own expenses.

.

……………................................CJI

[Dr. Dhananjaya Y. Chandrachud]

………..........................................J

[Hima Kohli]

NEW DELHI,

NOVEMBER 23, 2022

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