IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2175   OF 2011 (arising out of SLP (C) No. 1314 of 2008)

UNION OF INDIA & ORS.                …. APPELLANTS

   Versus

MANAB KUMAR GUHA         …. RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. In this Special Leave Petition, the Union of India and its  

functionaries assail 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.  

2. Leave granted.

3. Short facts giving rise to the present  appeal  are that the  

writ  petitioner-respondent  (hereinafter  referred  to  as  ‘writ  

petitioner’)  was a constable in the Railway Protection Force and  

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 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  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.  ¾  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 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  

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 :  

“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  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 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  

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-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  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 statement about incident  except of course that he has not 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  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  

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  

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 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 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 High Court while  

exercising the power of judicial review do not act as a Court of  

appeal, appreciate evidence and records findings.

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 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  

submissions  and  we  find  substance  in  the  submission  of  Mr.  

Kaushik.

11. True it is that 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  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  

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  

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 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 of appeal and  

appraise evidence. It interferes with the finding of enquiry officer  

only  when the finding is  found to  be  perverse.   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  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.

……….………………………………..J.                               ( HARJIT SINGH BEDI )

..........………………………………..J.                                           (  CHANDRAMAULI KR. PRASAD )

NEW DELHI, FEBRUARY  28, 2011.