UNION OF INDIA AND ORS.versusMANAS KUMAR GUHA

                         [2011] 3 S.C.R. 272


A                   UNION OF INDIA AND ORS.
                                  v.
                       MANAS KUMAR GUHA
                  (Civil Appeal No. 2175 of 2011)
                        FEBRUARY 28, 2011
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

         Service Law - Disciplinary proceedings - Findings
C   recorded by Enquiry officer - Interference by High Court in
    exercise of its ppwer of judicial review - Scope - Complaint
    against appellant-railway constable that he alongwith another
    constable jointly dragged and assaulted a passenger and
    snatched money from his possession - Enquiry officer held
o   the appellant guilty - Disciplinary authority ordered removal
    of appellant - Appellate Authority, however, substituted the
    punishment of removal to that of compulsory retirement -
    High Court quashed the order of compulsory retirement on
    ground that the complainant-passenger was not examined -
E   Justification - Held: Not justified - The enquiry officer took
    all pains to call the complainant from his native place but he
    did not appear during the enquiry - Nevertheless, the written
    complaint supported the charges levelled against the
    respondent - Further, respondent, in his defence, had
F   accepted the detention of the complainant and his release,
    though he denied the allegation of money snatching - The
    High Court, while exercising the power of judicial review from
    the order of the disciplinary authority does not act as a Court
    of appeal and appraise evidence - It interferes with the finding
G   of enquiry officer only when the finding is found to be perverse
    - On facts, the finding recorded by the enquiry officer was
    based on materials on record and on proper appreciation of
    evidence, which cannot be said to be perverse, calling for


H                                272
   UNION OF INDIA AND ORS. v. MANAS KUMAR            273
                    GUHA
interference by the High Court in exercise of its power of A
judicial review.

      The respondent, a Constable in the Railway
Protection Force, was served with a memo of charge
containing the allegation that while on duty at the Railway 8
Station he alongwith another Constable jointly caught
hold of a passenger at the Railway platform, dragged and
assaulted him and snatched money and the key of a
tractor from his possession. The enquiry officer held the
respondent guilty and the disciplinary authority agreeing C
with the same inflicted upon him the punishment of
remQval from service. The Appellate Authority, however,
::>et aside the order of removal on various grounds
including the ground of non-examination of the
complainant-passenger and directed for de novo enquiry.
De novo enquiry was held, however, the complainant did D
m>t appear. Nonetheless the respondent was again held
guilty and r~mPYec! from sery!ce in terms of the order of
the disciplinary aut'1ority. The Appellate Authority,
however, substituted the punishment of removal from
service to that of compulsory retirement. The order was E
affirmed by a Single Judge of the High Court. The Division
Bench of the High Court, however, set aside the order of
the Single Judge and quashed the order of compulsory
retirement on the ground that the complainant was not
examined.                                                   F

    Allowing the appeal, the Court
     HEL0:1. The Appellate Authority while setting aside
the order of removal and directing for de-novo enquiry
earlier had found the same bad in law on account of G
various grounds including the ground of non-
examination of the complainant. Thereafter in the de novo
enquiry, the enquiry officer had taken pains to call the
complainant from his native place but he did not appear
                                                           H
    274     SUPREME COURT REPORTS             [2011] 3 S.C.R.


A during the enquiry. It is not the case of the respondent
   that the disciplinary authority purposely withheld the
  complainant from appearing in the departmental enquiry.
  A copy of the written complaint was produced during the
  course of enquiry which supports the charge levelled
B against the respondent. Further the respondent !n his
  defence had accepted the detention of the complainant
  and his release. However, he denied the allegation of
  snatching of money from him but from his own defence,
  it is evident that he had accepted the incident except that
c he had not snatched the money. On the basis of the
  materials on record, the enquiry officer held the
  respondent guilty with which the disciplinary authority as
  also the appellate authority agreed. It is well settled that
  High Court while exercising the power of judicial review
0 from the order of the disciplinary authority does not act
  as a Court of appeal and appraise evidence. It interferes
  with the finding of enquiry officer only when the finding
  is found to be perverse. The Division Bench of the High
  Court erred in setting aside the order of Single Judge and
E quashing the order of compulsory retirement. The finding
  recorded by the enquiry officer was based on the
  materials on record and on proper appreciation of
  evidence which cannot be said to be perverse, calling for
  interference by the High Court in exercise of its power of
  judicial review. [Para 11] [278-D-H; 279-A-B]
F
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2175 of 2011.
      From the Judgment & Order dated 06.03.2007 of the High
G Court at Calcutta in FMA No. 74 of 2004.
         Naresh Kaushik, Sadhna Sandhu, A.K. Sharma, 8.
    Krishna Prasad for the Appellants.


H
   UNION OF INDIA AND ORS. v. MANAS KUMAR                    275
                    GUHA
    Asha Jain Madan, Mukesh Jain Madam for the                       A
Respondent.

     The Judgment of the Court was delivered by

     CHANDRAMAULI KR. PRASAD, J. 1. In this Special
Leave Petition, the Union of India and its functionaries assail      B
the judgment and order dated 6th of March, 2007 passed by
the Division Bench of the Calcutta High Court whereby while
allowing the appeal preferred by the writ petitioner-respondent
it had set aside the order of the learned Single Judge and
quashed the order of his compulsory retirement.                      C

     2. Leave granted.

      3. Short facts giving rise to the present appeal are thatthe
writ petitioner-respondent (hereinafter referred to as 'writ
petitioner') was a constable in the Railway Protection Force and     D
on 5th June, 1995 deployed for duty at Asansol Railway Station.
One Harish Chandra Ram made a complaint that the writ
petitioner alongwith another constable dragged him to the yard,
assaulted him and robbed Rs.400/- and key of a tractor from
his possession. He was put under suspension and on                   E
28.6.1995 served with the memo of charge containing the
following allegation:

          "On 5.6.95 while he was deployed for duty at Down
    Marshalling Post/Asansol alongwith Const. Nil Rameshwar          F
    from 16/00 Hrs. to 24/00 Hrs. they jointly caught hold of a
    passenger namely Harish Chandra Ram who had gone at
    the west end of Platform No. % of Asansol Rly. Station at
    about 19/00 Hrs. to ease himself, dragged him to the yard,
    assaulted him and robbed Rs.400/- and the key of a tractor       G
    from his possession. On search 2 Nos. of 100 rupee notes
    and key of a tractor were recovered from Const.
    Rameshwar."

    4. The enquiry officer held him guilty of the charge and the
                                                                     H
    276       SUPREME COURT REPORTS                 [2011] 3 S.C.R.

A disciplinary authority agreeing with the same inflicted the
  punishment of removal from service. The writ petitioner
  preferred appeal and the Appellate Authority allowed the
  appeal, set aside the order of removal and directed for de novo
  enquiry and while doing so, observed as follows :
B         "2. However, I find that there were some gross irregularities
          in the course of the proceeding enquiry. First, from the very
          beginning of the proceeding the delinquent should have
          been given the option to engage a "friend" for defending
          his case and thereafter in presence of his "friend" the
c         enquiry should be started. Secondly, the complainant was
          not examined during the course of proceeding enquiry.
          Thirdly, the complainant's story of disposal/delivery of a
          tractor at Burdwan and boarding a train from Asansol after
          that required further examination by E.O. and cross
D         examination by the delinquent."
        5. Thereafter a de novo enquiry was held in which the writ
  petitioner was allowed to engage a friend. However, Harish
  Chandra Ram, the victim was not examined. Nonetheless the
E enquiry officer held the writ petitioner guilty of the charge. A
  copy of the enquiry-report was made available to the writ
  petitioner and he submitted his reply. The disciplinary authority
  considered the report of enquiry officer and reply of the writ
  petitioner and passed the order of removal from service. As
  regards the plea of the writ petitioner regarding non-
F examination of Harish Chandra Ram, the disciplinary authority
  observed as follows:
                 " ...... In the 3rd para, he has alleged that the
          complainant Sri Harish Chandra Ram could not be
G         presented in the enquiry and hence the complaint is false.
          But this defence of Shri Guha cannot be accepted because
          the fact of the matter is that Harish Chandra Ram was
          illegally detained and released by const./Guha alongwith
          C/Rameshwar and C/Guha has clearly accepted in his
H
      UNION OF INDIA AND ORS. v. MANAS KUMAR                277
        GUHA [CHANDRAMAULI KR. PRASAD, J.]

      statement about incident except of course that he has not    A
      snatched money. So, one cannot deny the complaint as
      false just because in the later date the complainant could
      not come before. It is evident from the case file that the
      E.O. has taken all pains to call Shri Harish Chandra Ram
      from his native place many times but it appears that under   B
      fear in mind complainant could not dare to attend
      departmental enquiry which was conducted at RPF Post.
      However, written complaint which is duly supported by
      seizure list cannot be denied as such."

      6. Writ Petitioner preferred appeal and the Appellate        C
Authority partly allowed the appeal and substituted the
punishment of removal from service to that of compulsory
retirement.

     7. Writ petitioner assailed the aforesaid order before the    D
Calcutta High Court which dismissed the writ petition by order
dated 10th of April, 2002. On appeal by the writ petitioner, the
Division Bench of the Calcutta High Court set aside the order
of the learned Single Judge and quashed the order of
compulsory retirement and that is how the appellants are before    E
US.

      8. Mr. Naresh Kaushik, learned Counsel appearing on
behalf of the appellants submits that every effort was made to
examine the victim Harish Chandra Ram and only on the ground       F
that he was not examined, the order of compulsory retirement
ought not to have been set aside. He points out that the xerox
copy of the complaint filed by the victim was placed on record
and the enquiry officer on appraisal of the materials had
recorded the finding of guilt which ought not to have been
interfered by the High Court in appeal. He points out that the     G
High Court while exercising the power of judicial review do not
act as a Court of appeal, appreciate evidence and records
findings.

                                                                   H
       278       SUPREME COURT REPORTS.                  [2011] 3 S.C.R.


/i..   9. Ms. Asha Jain Madan, learned Counsel, however,
  appearing on behalf of the respondent points out that the
  Appellate Authority while setting aside the order of removal
  earlier had found it bad on account of non-examination of the
  victim Harish Chandra Ram and the story put by him that after
B disposal of the tractor, he came to board a train at Asansole
  required further cross-examination. She submits that in the de
  novo enquiry, Harish Chandra Ram did not appear and as such
  the order of removal suffers from the same vice.

      10. We have bestowed our consideration to the rival
C submissions and we find substance in the submission of Mr.
  Kaushik.

             11. True it is that the Appellate Authority while s~tting aside
       the order of removal and directing for de-novo enquiry earlier
D      had found the same bad in law on account of various grounds
       including the ground of non-examination of the victim Harish
       Chandra Ram. Thereafter in the de novo enquiry, the enquiry
       officer had taken pains to call Harish Chandra Ram from his
       native place but he did not appear during the enquiry. It is not
E      the case of the writ petitioner that the disciplinary authority
       purposely withheld Harish Chandra Ram from appearing in the
       departmental enquiry. Harish Chandra Ram had given a written
       complaint, a copy of which was produced during the course of
       enquiry which supports the charge levelled against the writ
F      petitioner. Further writ petitioner in his defence had accepted
       the detention of Harish Chandra Ram and his release. However,
       he has denied the allegation of snatching of money from him
       but from his own defence, it is evident that he had accepted
       the incident except of course that he had not snatched the
G      money. On the basis of the materials on record, the enquiry
       officer held the writ petitioner guilty with which the disciplinary
       authority as also the appellate authority agreed. It is well settled
       that High Court while exercising the power of judicial review
       from the order of the disciplinary authority do not act as a Court
H      of appeal and appraise evidence. It interferes with the finding
   UNION OF INDIA AND ORS. v. MANAS KUMAR                    279
     GUHA [CHANDRAMAULI KR. PRASAD, J.]

of enquiry officer only when the finding is found to be perverse.   A
We are of the opinion that the Division Bench of the High Court
erred in setting aside the order of learned Single Judge and
quashing the order of compulsory retirement. The finding
recorded by the enquiry officer is based on the materials on
record and on proper appreciation of evidence which cannot          B
be said to be perverse calling for interference by the High Court
in exercise of its power of judicial review.

     12. In the result, the appeal is allowed, impugned order is
set aside but without any order as to costs.                        c
B.B.B.                                         Appeal allowed.