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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.