Bhupendra Singh vs U.P. State Road Transport Corporation

Hon''ble Anil Kumar, J.—Heard Sri Rajesh Singh, learned counsel for petitioner, Sri Ritesh Singh, learned counsel appearing on behalf of respondents and perused the materials on record.

Facts of the present case, in brief, are that the petitioner who was working as Conductor in the Faizabad Depot of U.P. State Road Transport Corporation, was absent from duty for more than fourteen months without any information to the authorities concerned, as such the charge-sheet dated 27.1.2005 had been issued to him by Assistant Regional Manager, Faizabad Depot (Opposite party No.3) inter alia, levelling charges that he has been absent from duty with effect from 27.5.2004 and informing that the Assistant Regional Manager, Sultanpur Depot (opposite party No.4), was appointed as enquiry officer in the matter.

On 11.8.2005, a notice was issued to him by the opposite party No.4 to the effect that he in the matter in question had not submitted his reply as yet.

In response to the said notice, petitioner submitted his reply to the notice dated 11.8.2005. Thereafter, enquiry proceeding had been conducted by the enquiry officer providing the petitioner opportunity of cross-examination, which he availed. Subsequently, the enquiry officer concluded the enquiry on the basis of the material available on record and submitted the enquiry report to the punishing authority.

On 24.2.2006, punishing authority/ Assistant Regional Manager, Pratapgarh (Opposite party No.4), issued a show-cause notice to the petitioner along with enquiry report to submit his reply that why he should not be removed from service. Petitioner submitted his reply on 16.3.2006. After considering the same and other materials on record, the punishing authority/opposite party No.4 by way of a speaking and reasoned order removed the petitioner from service.

Aggrieved by the said facts, petitioner approached this Court by filing Writ Petition No. 6666 (MS)/06, Bhupendra Singh v. U.P.S.R.T.C., decided by order dated 04.8.2006 with the direction to the petitioner to file an appeal/representation to the appellate authority.

In pursuance to the same, petitioner filed a representation before the appellate authority (opposite party No.2) on 21.8.2006. who by order dated 03.11.2006, after considering the appeal filed by the petitioner and other materials on record, held that the order dated 25.4.2006 passed by the Punishing Authority removing the petitioner from service is perfectly valid and need no interference. Hence, the present writ petition has been filed challenging the said orders.

Sri Rajesh Singh, learned counsel for petitioner, submits that during the course of enquiry proceedings, the petitioner has not been given opportunity to put forward his case and the material which has been relied by the enquiry officer during the course of enquiry proceedings, have not been given to him, as such the entire enquiry proceeding as well as the order of removal passed thereafter are arbitrary in nature, without jurisdiction and liable to be set aside.

Learned counsel for petitioner further submits that the petitioner is not guilty of the charges levelled against him and the same has not been proved during the course of enquiry. Even otherwise, if the petitioner has remained absent from service, he cannot be removed from service in view of the law laid down by this Court in the cases of State of U.P. & ors. v. Suryaveer Singh & anr. (2008 (2) LBESR 109 (All) (LB)), Surya Narain Shukla v. U.P. Cooperative Processing & Cold Storage Federation Ltd. & anr. (2010 (2) LBESR 534 (All) (LB)) and Girwar Singh Tomar v. Union of India (2007 (3) LBESR 185 (All)). Thus, the punishment which has been awarded to the petitioner, is disproportionate in comparison to the gravity of offence, which has been committed by him in the instant matter, so excessive in nature, liable to be set aside.

Sri Ritesh Singh, learned counsel appearing on behalf of U.P.S.R.T.C., as per the direction given by this Court, has produced the relevant records and on the basis of the same as well as the pleadings made in the counter affidavit, he submits that in the instant case, as the petitioner was absent from duty for more than fourteen months without any reason and information, so a charge-sheet has been given to him, submitted reply thereafter, the enquiry proceeding has been conducted in which the petitioner has been given ample opportunity to prove his case, but he failed to do so and the enquiry officer submitted his report after completion of enquiry in accordance with law. Accordingly, a show-cause notice along with enquiry report has been issued by the punishing authority/opposite party no.3, to which petitioner submitted his reply and after taking into consideration the same, order of removal has been passed and upheld by the appellate authority, hence the present writ petition has no merit and is liable to be set aside.

I have heard learned counsel for parties and gone through the records.

In view of the above said facts, the question which is to be examined in the present case is whether the reasonable opportunity had been given to the petitioners before passing the order of removal from services and what is the effect of not giving the documents as alleged by them.

The Constitution Bench in Khem Chand Vs. The Union of India (UOI )and Others, has held that the reasonable opportunity means and includes

(a) an opportunity to deny his guilt and establish his innocence....

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witness in support of his defence; and finally

(c ) an opportunity to make his representation as to why the purported punishment should not be inflicted on him....

In the case of Transmission Corporation of A.P. Ltd. V. Shri Rama Krishna Rice Mill 2006 SCC (L&S) 467, Hon''ble Supreme Court while considering the meaning of reasonable opportunity had interpreted the said word in Advance Law Lexicon by P. Ramanatha Aiyar, 93rd ED., Vol. 4, pp. 3959 and 3968 and has held as under:

(i) (What is) fair, proper, or moderate under the circumstances....

(ii) The expression ''reasonable'' is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances.

(iii) There is no point on which a greater amount of decision is to be found in courts of law and equity than as to what is reasonable. It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstances. Lord Romilly, M.R. Labouchere V Dawson (1872) LR 13 Eq : 25 LT 894.

Accordingly, reasonable opportunity means:

(a) an opportunity to deny guilt and establish innocence; which as government servant can only do if he is told what the charges leveled against him are and the allegations on which such charges are based.

(b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence what he can effectively do if he was supplied the copies of the documents relied upon and the depositions of witnesses, and finally,

(c) an opportunity to make his representation as to why no 8 punishment should be inflicted on him which he can only do if the competent authority, after the enquiry is over tentatively proposes to inflict one of the scheduled punishments and communicates his tentative decision along with a copy of the inquiry report to the Government servant.

In the present case, petitioner was admittedly given ample opportunity to prove that he was not guilty of the charges, as levelled against him by charge-sheet dated 27.1.2005 and thereafter during the course of enquiry he was also afforded opportunity by the enquiry officer to prove his case as well as the opportunity of cross-examination also given to him, but he failed to establish by any cogent evidence or material that he is not guilty of the charges which were imposed on him by the charge-sheet dated 27.1.2005. Rather, the enquiry officer on the basis of the enquiry proceedings has held that the charge levelled against the petitioner has been proved. Thereafter, the enquiry report submitted by the enquiry officer along with show-cause notice given to the petitioner, who submitted his reply. Considering the same, the punishing authority/opposite party No.3 has passed the removal order, which was upheld by appellate authority, so I am of the opinion that there is neither any illegality nor infirmity in the impugned orders, which are under challenge in the present writ petition. Because in the case of State of Tamil Nadu Vs. Thiru K.V. Perumal and others, Hon''ble Supreme Court has held as under:

The Tribunal seems to be under the impression that the enquiry officer/ disciplinary authority is bound to supply each an every document that may asked for by delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/ employee. In this case respondent has asked for certain documents. The Registrar, to whom the request was made, called upon him to specify the relevance of each and every document asked for by him. The respondent did not do so. It was the duty of the respondent to point out how each and every documents was relevant to the charges or to the enquiry being held against him and whether and how their non-supply has prejudiced his case. Equally, It is the duty of the Tribunal to record the finding whether any relevant documents were supplied and whether such non-supply has prejudiced the defendant''s case.

In the instant case, the petitioner had made a bald and vague statement that the relevant documents were not supplied to him and further he had not stated that in what manner he is being prejudiced for non-supply of the said documents and the copies of all the relevant documents and he was given an opportunity of cross-examination during enquiry proceeding, so on the basis of the said fact it is totally incorrect on the part of the petitioner to say that the relevant documents were not supplied to him by the respondent, accordingly, the submission made by the learned counsel for the petitioner in this regard is misconceived and the same is rejected having no force. Accordingly, sofar as the case cited by the petitioner namely State of U.P. & ors. v. Suryaveer Singh & anr.(2008 (2) LBESR 109 (All) (LB)) and Surya Narain Shukla v. U.P. Cooperative Processing & Cold Storage Federatin Ltd. & Anr. 2010 (2) LBESR 534 (All) (LB) are concerned, in the said matter, petitioners were dismissed without holding any departmental enquiry and straightway after giving the reply to the charge-sheet they were dismissed from service. As such, the said judgments are not applicable to the facts and circumstances of the present case, as in the instant case, charge-sheet has been issued to the petitioner, to which he submitted his reply and thereafter, detailed domestic/departmental enquiry has been conducted, so the petitioner cannot derive any benefit from the said judgments.

Moreover, from the perusal of the removal order dated 25.4.2006 passed by opposite party no.3 and the appellate order dated 3.11.2006 passed by the appellate authority, the same are reasoned and well discussed orders passed by the authorities concerned.

It is settled law that the reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ''inscrutable face of the sphinx'', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, speaking out. The inscrutable face of the sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance.

Further, if the said principles is applied in the present case and the order of removal from services are tested on the said scale, the submission made by the learned counsel for the petitioner will definitely fail in the test. As in the present case, the orders of removal passed by the punishing authority are reasoned one indicating the reasons on the basis of which the same have been passed, accordingly the submission which has been made by the learned counsel for the petitioners in this regard is wholly misconceived and rejected.

Last submission made by the learned counsel for the petitioner that the impugned orders under challenge are arbitrary in nature as the punishment awarded to him does not commensurate with the gravity of charges, as such the same is in the violation of principles of natural justice. This argument is not tenable as it is the sole prerogative and domain of the punishing authority to impose the punishment on an employee taking into consideration the material documents and evidence on record and misconduct committed by him.

In the case of B.C. Chaturvedi Vs. Union of India and others, , Hon''ble Supreme Court has held as under:

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment. Keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of th High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

In the case of V. Rajarathinam Vs. State of Tamilnadu and another 1997 SCC (L&S) 90, the Court has held as under:

that if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence established misconduct against a public servant, the disciplinary authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be 14 imposed is for the disciplinary authority to consider.

In the case of State of Karnataka and Others Vs. H. Nagaraj, Hon''ble Apex Court after relying earlier judgment in the case of Union of India Vs. Parma Nanda (1989) 2 SCC (L&S) 303 held as under:

That 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.

In the case of Union of India (UOI) and Another Vs. S.S. Ahluwalia, the Hon''ble Apex Court had held as under :

8.... The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved.

In the case of State of Meghalaya and Others Vs. Mecken Singh N. Marak, the Hon''ble Supreme Court had held as under :

The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gratuity misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquents holds, previous penalty,if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.

Secondly, the Tribunal failed to notice that the respondent was holding an important position as Land Reforms Officer during the relevant period having been conferred with various powers and duties under the Regulations. As a Land Reforms Officer, the respondent possessed the official authority for grant of occupancy rights under the Regulations. The co-delinquents were only his subordinates and they carried out his instructions. In the facts and circumstances, therefore, the respondent and the two co-delinquents cannot be said to have been similarly placed.

Recently, in the case of The Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad, the Hon''ble Supreme Court has held as under :

Para 14 : The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the disciplinary or appellate authority is dependent of host of factor such as gravity of misconduct, past conduct the nature of duties assigned to delinquent, responsibility of position that the delinquent holds, previous penalty, if any, and the discipline required to maintain in the department or establishment he works. Ordinarily the court or Tribunal would not substitute it''s opinion on reappraisal of facts.

In view of the above said facts, the petitioner cannot derive any benefit from the judgment which has been cited on his behalf by the learned counsel for petitioner reported in 2007 (3) LBESR 185 (All) Girwar Singh Tomar v. Union of India in this regard, rather, the same is not applicable in the facts and circumstances of the case.

For the foregoing reasons, I do not find any infirmity or irregularity in the impugned order of removal dated 25.4.2006 or the appellate order dated 03.11.2006 passed by the appellate authority, hence the present writ petition lacks merit and is dismissed.

No order as to costs.