2015 (3) TMI 1433 - HC - Indian Laws

Revisional jurisdiction - Re-appreciation of evidence revisional authority, to arrive at a conclusion which was different from that of the appellate authority - whether the revisional authority in exercise of its suo moto powers under Rule 23 could have re-appreciated the evidence and taken a different view in contradiction to the view taken by the appellate authority in the given facts and circumstances? - HELD THAT - The revisional authority disagreed with the appellate authority merely for the reason that the negligence on the part of the petitioner was not required to be established by an independent witness as the attack on the camp and consequently the constables running for their lives, was accepted by the delinquent employee in his statement. The revisional authority was in agreement with appellate authority that the petitioner as well as the constable Sanjai Kumar Rai, though posted as Guards, were assigned the work of cooking food on the direction and order of the Commander. The required number of constables were not posted at the camp nor were the followers. In the aforesaid admitted position, the revisional authority, took a different view, that despite non availability of the followers and the assignment of cooking work, the petitioner being a constable should have been alert while performing his duties even while he was cooking the food. Therefore, the revisional authority opined that at the time of attack the petitioner was negligent in performance of his duties. The revisional authority, finally concluded, that considering the overall facts and circumstances and the conduct of the constables posted at the camp, the petitioner being a constable and deputed for the protection of the camp was negligent in performance of duty because at the time of the attack the petitioner and the other constables had escaped, consequently, the naxalites were successful in destroying the Government property and looting the arms and armaments. The impugned order would reflect that the revisional authority had drawn inference on the same material and facts, but the revisional authority had taken distinct and different view from that of the appellate authority. The scope of appeal and revision , discussed herein above, would not permit the revisional authority to re-appreciate the evidences to come to a different conclusion, save and except, when the revisional authority records a categorical finding regarding the legality and propriety of such order under revision. The revisional authority had exceeded his jurisdiction by taking upon himself the role of a second authority of appeal which is not permissible under the Rules. The allegation against the petitioner is primarily of a general nature of not defending the camp at the time of the naxal attack. The appellate authority had noted the background in which the petitioner alongwith other constables acted at the relevant time. The guard strength was inadequate, seven guards against eleven, of which two guards, including the petitioner, were assigned the work of a cook. The Commander was not available when approximately fifty naxals attacked the camp. In these circumstances the first reaction of the guards was to take shelter to save their lives. The appellate authority in these circumstances and on considering the material, evidence and statements of the guards was of the view that the petitioner was wrongly held guilty by the Disciplinary Authority. The revisional authority failed to record as to how the charges of misconduct was not identical to that of Sanjai Kumar Rai or the petitioner was foisted with more serious charges. In this background the revisional authority exceeded his jurisdiction in interfering with penalty proposed by the appellate authority. The impugned order is not sustainable - petition allowed.

Summary

Issues Involved:
1. Dereliction of duty by the petitioner during a naxalite attack.
2. Adequacy of police force and camp conditions.
3. Disciplinary proceedings and penalties imposed.
4. Appellate authority's decision and its review by the revisional authority.
5. Legality and propriety of the revisional authority's jurisdiction under Rule 23.
6. Quantum of punishment and consistency with co-delinquents.

Issue-wise Detailed Analysis:

1. Dereliction of Duty by the Petitioner During a Naxalite Attack:
The petitioner, a constable in the Provincial Armed Constabulary (P.A.C.), was charged with dereliction of duty when naxalites attacked the camp he was posted at, resulting in the looting of weapons and destruction of government property. The petitioner argued that the inadequate police force and lack of proper camp conditions contributed to the incident.

2. Adequacy of Police Force and Camp Conditions:
The petitioner highlighted that the camp was undermanned with only two head constables and seven constables against the required strength of eleven. Additionally, no follower was posted, forcing the petitioner to cook meals, which diverted attention from security duties. The naxalites disguised as laborers were not identified as a threat by the sentry, leading to the attack.

3. Disciplinary Proceedings and Penalties Imposed:
The Enquiry Officer recommended dismissal, which was imposed by the disciplinary authority on 12 June 2002. The petitioner's appeal and revision were rejected by higher authorities, maintaining the dismissal.

4. Appellate Authority's Decision and Its Review by the Revisional Authority:
The State Public Services Tribunal set aside the dismissal, directing a fresh enquiry. The disciplinary authority, however, dismissed the petitioner again, which was later reduced by the appellate authority to a minor penalty, citing the same treatment given to co-delinquent Sanjai Kumar Rai. The revisional authority, however, reinstated the dismissal, arguing the petitioner's responsibility was different.

5. Legality and Propriety of the Revisional Authority's Jurisdiction Under Rule 23:
The court examined whether the revisional authority could re-appreciate evidence under Rule 23. The revisional authority's role is limited to checking the legality and propriety of the appellate order, not to act as a second appellate body. The revisional authority must identify flagrant irregularity or miscarriage of justice to justify its interference.

6. Quantum of Punishment and Consistency with Co-delinquents:
The court noted the disparity in punishment between the petitioner and co-delinquent Sanjai Kumar Rai, who received only a censure entry. The Supreme Court's principles on punishment consistency were cited, emphasizing equal treatment for co-delinquents unless justified by conduct or acceptance of charges.

Conclusion:
The revisional authority exceeded its jurisdiction by re-appreciating evidence and imposing a harsher penalty without identifying specific legal or procedural errors in the appellate authority's order. The court quashed the revisional authority's order, reinstating the appellate decision with all consequential benefits to the petitioner.