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Dadhi Baban Lenka Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1106 of 1975
Judge
Reported inAIR1977Ori187; 43(1977)CLT316
ActsConstitution of India - Articles 226 and 311
AppellantDadhi Baban Lenka
RespondentState of Orissa and ors.
Appellant AdvocateM.R. Panda, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Cases Referred(State of Andhra Pradesh v. S. Sree Rama Rao
Excerpt:
.....the heading 'charge no. 1'.all necessary details and particulars have been clearly mentioned in connection with each item of the said charges. 605/-.that note in the above-quoted manner in one sentence appended at the end of the charge-sheet is not the charge by itself, for the charges in detail have been clearly stated in separate paragraphs in the main body of the charge-sheet. the petitioner at the relevant time was working directly under the divisional forest officer who drew up the charges, and so the said divisional forest officer was actually the person who was well acquainted with the affairs and the facts in question. true it is that whenever the tribunal wants to adopt any charge it should better record, an order to that effect. but merely on the failure of the tribunal to..........passed by the chief conservator of forests were communicated to the petitioner by the divisional forest officer, puri division, under whom the petitioner was working at that time. the petitioner accordingly handed over charge of his office to another forest ranger with effect from 12-4-74 forenoon. the petitioner has filed this writ petition challenging (i) the findings of the tribunal; and (ii) the legality of the departmental proceeding initiated against him and consequently the order compulsorily retiring him from government service.2. mr. panda, the learned counsel for the petitioner, at first contended that the findings and conclusions of the tribunal could not be maintained and were liable to be set aside as the said findings were not based on proper and convincing evidence, and.....
Judgment:

S. Acharya, J.

1. The petitioner was posted as Deputy Ranger in the district of Bolangir from 1953 to 1957. While he was working as such the Divisional Forest Officer, Bolangir framed six charges against the petitioner, as contained in Annexure 2, and asked him to show cause why a disciplinary proceeding in respect of the said charges should not be started against him. The petitioner filed his representation against the same and thereafter the said charges with the representation of the petitioner were sent to the Chief Conservator of Forests. After the Chief Conservator of Forests approved the said charges, the disciplinary proceeding against the petitioner was referred to to the Administrative Tribunal as per the Government direction dated 9th March, 1963 to all its departments contained in Annexure A. The Tribunal, after recording evidence adduced by both the parties and on giving them a hearing, found the petitioner guilty only in respect of the three items of charge No. 1 and of charge No. 3 to a limited extent. On the said findings the Tribunal as a measure of punishment recommended for the compulsory retirement of the petitioner from Government service. Government accepted the report tentatively and the petitioner was asked to show cause against the proposed punishment. The petitioner again filed his representation against the same, and Government, on a consideration of the Tribunal's report and the petitioner's representation, by their order dated 6th April, 1974 (a part of Annexure 1) accepted the finding and the punishment recommended by the Tribunal. In pursuance of the said Government order the Chief Conservator of Forests, by his order dated 10th April, 1974 (last part of Annexure 1), compulsorily retired the petitioner with effect from 12-4-74 forenoon. On the direction of the Chief Conservator of Forests, the aforesaid Government order and the order passed by the Chief Conservator of Forests were communicated to the petitioner by the Divisional Forest Officer, Puri Division, under whom the petitioner was working at that time. The petitioner accordingly handed over charge of his office to another Forest Ranger with effect from 12-4-74 forenoon. The petitioner has filed this writ petition challenging (i) the findings of the Tribunal; and (ii) the legality of the departmental proceeding initiated against him and consequently the order compulsorily retiring him from Government service.

2. Mr. Panda, the learned counsel for the petitioner, at first contended that the findings and conclusions of the Tribunal could not be maintained and were liable to be set aside as the said findings were not based on proper and convincing evidence, and no reasonable man could find the petitioner guilty of the charges framed against him on the evidence on record.

3. Before assessing the merit of the above contention of Mr. Panda, I should at first advert to the scope and ambit of the writ jurisdiction of this Court to interfere with the findings of fact of the Tribunal. Law is well settled that in matters of this nature the High Court, in exercise of its powers under Article 226 of the Constitution, is not a court of appeal over the decisions of the disciplinary authority holding departmental enquiries against public servants. Their Lordships of the Supreme Court in the case reported in AIR 1975 SC 2151 (State of Andhra Pradesh v. Chitra Venkata Rao) have observed as follows:--

'23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64: (AIR 1964 SC 477).'

From the above observations of the Supreme Court it is quite clear that this Court in exercise of its powers under Article 226 of the Constitution can interfere with the finding of fact of the Tribunal if it is shown that in recording the said finding the Tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence which has influenced the impugned finding, and if a finding of fact is based on no evidence. A finding of fact cannot be challenged on the ground that the relevant and material evidence en record is insufficient or inadequate to sustain a finding. Adequacy or sufficiency of evidence supporting the finding of the Tribunal or any inference of fact drawn by it therefrom are not matters for the High Court to weigh or reassess, and the High Court cannot supplement its own inference or finding on the evidence on record if the Tribunal's finding and inference of fact are based on evidence on record. Their Lordships of the Supreme Court in the above-mentioned case expressly deprecated the effort and the action of the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, in reassessing the entire evidence on record and then, after rejecting some evidence as no evidence, to give its own conclusion on a particular matter not in consonance with the findings of the Tribunal. Previous to the said decision, quite a number of decisions of the Supreme Court have laid down the scope and jurisdiction of the High Court in matters of this nature.

In Muralidhar Jena's case (AIR 1963 SC 404) it has been held as follows:--

'.............. It is common ground that in proceedings under Articles 226 and 227 the High Court cannot sit in appeal over the findings recorded by a competent tribunal in a departmental enquiry so that if we are satisfied that in the present case the High Court has purported to reappreciate the evidence for itself that would be outside its jurisdiction. It is also common ground that if it is shown that the impugned findings recorded by the Administrative Tribunal are not supported by an evidence the High Court would be justified in setting aside the said findings .........'

The other relevant observations of their Lordships in that judgment are:--

'............ It is necessary to bear in mind that the enquiry held by the Tribunal is not governed by the strict and technical rules of the Evidence Act..........'

X XX X

'Whether or not, the evidence on which the Tribunal relied was satisfactory or sufficient for justifying its conclusion would not fall to be considered in a writ petition. The question to be considered is whether the said conclusions (the conclusions of the Tribunal) could be set aside on the narrow ground that they are not supported toy any evidence.'

In the case reported in AIR 1963 SC 1723 (State of Andhra Pradesh v. S. Sree Rama Rao) it has been observed:--

'(7). There is no warrant for the view expressed toy the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of Appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole Judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.'

There are decisions of this Court and of other High Courts on this point, but in view of the above-mentioned authoritative decisions of the Supreme Court, it is needless for me to refer to the said other decisions cited by both the parties.

4. Item No. (i) of Charge No. 1 is as follows:--

'That Shri Dadhibaban Lenka, Deputy Ranger, while in charge of Muribhal Range, detected illicit removal of 3 logs of timber from the reserve forests on 30-5-56 by Shri Pabana Hati and others of village Sirol. P. S. Titilagarh. He realised a total sum of Rs. 1,000/- from the victims within a period of two months to compound the case. He gave plain paper receipts of Rs. 500/- on 23-7-55 and subsequently the cases were compounded by the Divisional Forest Officer and official receipts were issued on 19-1-56 for Rs 192, on 29-3-56 for Rs. 133/- and Rs. 175/-. Thereby he has misappropriated Rs. 500/- in the 3 cases.'

The Tribunal has found the petitioner guilty of the said charge on a consideration of the evidence of P. Ws. 1 to 8, 15, 27 and 34 and that of D. Ws. 3 and 8. On a perusal of the evidence on record and its discussion in the report submitted by the Tribunal it cannot be said that the finding of the Tribunal, that the petitioner is guilty of this charge, is not supported by relevant evidence.

P. Ws. 1 to 4 were the persons who were accused of illicit removal of timber by the petitioner from Patahari reserve forest on a particular date. All of them depose that the alleged case of illicit removal was compounded by the petitioner for Rs. 1000/- and that although the said amount was paid to the petitioner by instalments on different dates the petitioner gave a receipt only for Rs. 500/-. P. Ws. 5 & 6 were the bailors for the payment of the said compounded amount of Rs. 1000/-. They have also deposed that on the detection of illicit removal of timbers from the said reserve forest, the petitioner compounded the said offence with the persons accused of the said offence for Rs. 1000/-, and that amount was paid to the petitioner on different dates by instalments, but the petitioner gave a receipt only for Rs. 500/- although he actually received the aforesaid amount of Rs. 1000/-. It is in evidence that only Rs. 500/- was deposited by the petitioner in the Government accounts on the above score. There are of course some discrepancies in their evidence, but such discrepancies are bound to occur when persons depose about matters which took place long ago.

The rule followed in criminal trials that the charge is to be established beyond reasonable doubt does not apply to such an enquiry. On the discussion of the evidence in the enquiry report I am satisfied that the finding of the Tribunal on this charge is based on relevant evidence, and it is not for me to scan the evidence afresh to see if another finding is possible on such evidence.

5. Item No. (ii) Charge No. 1 is as follows:--

'On 27-12-53 Shri D. B. Lenka, Deputy Ranger, detected removal of 8 cart-loads of fire-wood at village Dangabanie under Titilagarh P. 3. from the reserved forest. He realised a sum of Rs. 460/- from the victims on the day after and did not issue any receipt. He started two cases against the victims Makar Ghivela and Sabaran Nag and 5 others. As the victims did not receive the money receipts they created a row and sent registered petitions to the Chief Minister in April, 1954. The cases were compounded by the Divisional Forest Officer for Rs. 100/- and Rs. 320/- on 6-5-54. It appears from the records that Rs. 420/- has been credited towards the compounding fees and the rest of Rs. 40/- has been misappropriated by him.'

The Tribunal has held the petitioner guilty of the said charge on a discussion and consideration of the evidence of P. Ws. 9 to 14, 16 to 21 and 28 and that of D. W. 8. P. Ws. 9 to 14, 16 and 17 depose to the fact that a sum of Rs. 460/- was realised from them by the petitioner in connection with an alleged case of removal of 8 cart-loads of fire-wood from the reserve forest, From the relevant records it is established that only Rs. 420/- was credited towards the compounding fees in respect of the said removal of fire-wood. There is adequate evidence on record regarding payment of Rs. 460/- to the petitioner for the said matter. The finding of the Tribunal on this charge has been arrived at on a proper discussion and consideration of the evidence on record, and the said finding is founded on relevant and convincing evidence,

6. Item No. (iii) of Charge No. 1 is as follows:--

'That he, Shri D. B. Lenka, Deputy Ranger, on 9-1-55 detected 3 logs of timber buried in the courtyard of one Bagu Bag of village Dengapadar. He realised Rs. 200/-towards compounding the case but actually the official records show that Rs. 135/- only has been credited towards the compounding fees. In this case he has misappropriated a sum of Rs. 65/-.'

The Tribunal, in holding the petitioner guilty of the said charge, has relied upon the evidence of P. Ws. 8, 27 and 34 and has also taken into consideration the evidence of D. Ws. 3 and 8. Apart from other evidence, P. W. 27, who was the Forest Guard during the relevant time, has testified to the fact that Rs. 200/- was settled with Bagu Bag, P. W. 11, as the compounding fee for illegally possessing 3 logs of timber, as mentioned in the aforesaid charge. From the relevant records it is established that in respect of the said matter only Rs. 135/- was credited towards the compounding fees. Thus, the finding of the Tribunal in respect of the said charge is also supported by evidence and materials on record.

7. On a perusal of the evidence on record and its discussion in the impugned report of the Tribunal, I am satisfied that the finding of the Tribunal in respect of all the three items of Charge No. 1 is based on relevant evidence on record; and that the evidence on record reasonably supports the conclusion of the Tribunal that the petitioner is guilty of the said charges. The Tribunal is the sole judge of facts, and there being adequate evidence to support the conclusion of the Tribunal on the aforesaid charges, it is not for this Court in this case under Article 226 of the Constitution to reassess, sift and review the evidence in the manner it is done in criminal cases to examine if the charges are proved beyond reasonable doubt or not.

8. The Tribunal has completely absolved the petitioner of charge No. 3 so far as it relates to despatch of one wagon of seized timber and teak wood through forest contractor Shri Rama Chandra Agarwala from Muribahal to Tapang Railway Station in 1956. With regard to the other part of the said charge, namely that some packages of furniture and some rice and pulses were sent by the delinquent officer, the Tribunal finds that the fact of despatch of these consignments has been proved though there is no evidence to show the cost of the furniture or the value of the rice and pulses so sent by the petitioner, nor is there any evidence that the delinquent officer has made unlawful gain in the said matter. Thus, there is actually no finding of guilt in respect of the last-mentioned charge. The Tribunal's finding at the end of its report that charge No. 3 has been proved to the limited extent refers only to its finding to the above extent, and so there is actually no finding of guilt against the petitioner. So it is not necessary to examine the correctness of Mr. Panda's above submission in respect of charge No. 3.

9. The petitioner has been completely exonerated of all the other charges.

10. Mr. Panda next urged that charge No. 1 being simply as follows-

'Charge No. 1: Misappropriation of Government money amounting to Rs. 605/-.'

the petitioner was seriously prejudiced as the said charge was vague, V misguiding and factually incorrect. The charge against the petitioner is not in the above-quoted form as urged by Mr. Panua. In the charge-sheet served on the petitioner at first three specific items of misappropriation in three different paragraphs, as quoted previously in this judgment, have been clearly stated one after the other under the heading 'Charge No. 1'. All necessary details and particulars have been clearly mentioned in connection with each item of the said charges. So there is no ambiguity or vagueness in the said charges.

Mr. Panda further urges that the said charge is misguiding and factually incorrect, as it mentions about misappropriation of Government money though no such case is made out on the facts alleged against the petitioner, and so it has seriously prejudiced the petitioner in the proceeding before the Tribunal. In all the three items of charge under Charge No. 1 the petitioner is accused of misappropriating certain amounts out of the money collected by him as compounding fees in respect of some forest offences. If the said amounts had not been misappropriated then the same would have gone to the Government coffers. So, the person drafting the charge while summing up Charge No. 1 in one sentence, mentioned that the said charge related to misappropriation of Government money amounting to Rs. 605/-. That note in the above-quoted manner in one sentence appended at the end of the charge-sheet is not the charge by itself, for the charges in detail have been clearly stated in separate paragraphs in the main body of the charge-sheet. Merely because of the said note, I am sure, the petitioner was not misguided, and he was not prejudiced in any way in the proceeding against him before the Tribunal.

11. Mr. Panda's contention, that the Divisional Forest Officer was not competent to frame the charges against the petitioner and so the disciplinary proceeding against the petitioner on the charges framed by the Divisional Forest Officer was illegal, is without any substance. In this case, on the facts on record, it is not necessary to decide as to whether the Divisional Forest Officer was not competent to frame the charges against the petitioner. In paragraph 12 of the affidavit filed on behalf of the opposite parties it has been stated that though the said charges were drawn up by the Divisional Forest Officer, they were duly approved by the Chief Conservator of Forests as per his office Memo. No. 6365 dated 27-4-61, and only thereafter, with the approved charge-sheet, the matter was referred to the Administrative Tribunal, The above assertion on affidavit has not been controverted by the petitioner. As the said charges were approved by the Chief Conservator of Forests and the proceeding against the petitioner in the real sense started only thereafter before the Tribunal, one cannot say that the disciplinary proceeding against the petitioner proceeded with charges framed by the Divisional Forest Officer. The charges for a disciplinary proceeding need not actually be framed by the pen or on the dictation of the competent authority. If the charges are drafted by some one in the department and the same are actually and ultimately approved or adopted by the competent authority, it can be deemed that the charges were framed by the competent authority. So, the legal formality of framing the charges by the competent authority was thus complied with. The petitioner at the relevant time was working directly under the Divisional Forest Officer who drew up the charges, and so the said Divisional Forest Officer was actually the person who was well acquainted with the affairs and the facts in question. Moreover, the said charges were drafted by the Divisional Forest Officer on the basis of the vigilance report against the petitioner. On the above facts one cannot find any fault or defect in the framing of the charges against the petitioner, and one cannot also find fault with those charges merely because some other person at the initial stage applied his mind to the said charges.

12. The learned counsel for the petitioner, relying on the provisions of Rule 7 of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951, has contended that in this case the Member, Administrative Tribunal, did not himself frame the charges against the petitioner, nor did he specifically adopt the charges referred to him, and so he was not competent to proceed with the disciplinary proceeding against the petitioner. The above point was not raised before the Administrative Tribunal. As stated above, the charges after being drawn up by the Divisional Forest Officer were sent to the petitioner to have his explanation on the same. After the petitioner submitted his explanation by way of a representation against the said charges and after the said charges were approved by the Chief Conservator of Forests, the matter was referred to the Tribunal for holding an enquiry on the said charges, and the Tribunal proceeded to hold the enquiry only in respect of the said charges. So, if the Tribunal did not frame any charge or did not specifically adopt those charges by a written order to that effect, that did not cause any prejudice to the petitioner in the said proceeding. Mr. Panda also could not show that any prejudice was actually caused to the petitioner on the above account. Apart from the above, in paragraph 6 of the counter affidavit filed on behalf of the opposite parties it has been stated that the Tribunal in the said proceeding adopted the charges referred to it. Mr. Panda of course states that there is nothing on record to indicate that the Tribunal adopted the charges referred to it. True it is that whenever the Tribunal wants to adopt any charge it should better record, an order to that effect. But merely on the failure of the Tribunal to record an order to that effect, the proceeding cannot be declared as illegal, if from the facts and circumstances of the case it is gathered that the Tribunal actually adopted the charges referred to it and then proceeded to hold the enquiry against the delinquent officer on the said charges. In this case, as stated above, the charges had been served earlier on the petitioner; the same charges after being approved by the Chief Conservator of Forests were referred to the Tribunal and the enquiry against the petitioner proceeded only on the selfsame charges. The petitioner, therefore, had sufficient notice of the fact that the enquiry against him before the Tribunal was being held only on the charges which had been served earlier on him. On the above facts and circumstances of this case, it can be said that the Tribunal adopted the charges referred to it by Government. I, therefore, do not see any merit in the above-mentioned contention of Mr. Panda.

13. On the above discussions and consideration, I do not find any merit in this writ petition, and it is accordingly dismissed. But on the facts of this case there will be no order for costs.

B.K. Ray, J.

I agree.


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