Bijender Singh vs Delhi Jal Board

Heard learned counsel for the applicant.

By filing this OA, the applicant is seeking the following reliefs:-

"a) set aside the order No.84, vide No.DJB/Vig/Disp/RDA-33/Minor/11/2016/2704 dated 29.03.2016 passed by Chief Executive Officer of respondent alongwith order No.103 in Ref. No.DJB/ Vig./disp./RDA- 33/Minor/11/2015/2706 dated 20.03.2015 passed

b) Cost of the proceedings may be awarded to the applicant.

c) grant such other and further relief as may be just on the facts and circumstances of the case."

In this OA, applicant's grievance is against the order dated 29.3.2016 passed by the respondents vide which the order of penalty of reduction to a lower stage in the time scale of pay by two stage for a period of two years without cumulative effect and no adversely affecting his pension vide Order dated 20.3.2015 has been confirmed by the appellate authority.

The relevant facts of the case are that the applicant while working as Head Clerk was issued a manor penalty charge sheet vide Memo dated 23.9.2014, which reads as under:-

"1. He has reached his office i.e. ZRO(NW)-IV on 25.09.2013 at about 9.40 a.m. in drunken state and abused most of the staff present in the office. Thereafter, he abused the TCS employee namely Sh. Pankaj Kumar, HH Staff on the said date. Sh. Bijender Singh, Head Clerk indulged in such type of activity earlier also.

The incident came to the knowledge of the department when a reference from A.C.(D) was received in Vigilance on 01.01.2014 regarding initiating disciplinary proceedings against Sh. Bijender Singh, Head Clerk."

The applicant submitted his reply to the said chargesheet on 27.9.2014. The disciplinary authority after considering the reply of the applicant imposed the penalty of reduction to a lower stage in the time scale of pay by two stages for a period of two years without cumulative effect and not adversely affecting his pension vide order dated 20.3.2015 upon the applicant. The applicant filed an appeal and also requested for personal hearing, which was allowed and accordingly the applicant was called on 18.2.2016 at 11.00 am by the appellate authority and heard. Thereafter the appellate authority after perusing the record of the case and the case against the applicant which has been made out by the Director (Revenue) on the basis of several complaints of the staff on various occasions and the statement of the ZRO about his misbehaviour and the compliant of the police. He also found that he had refused to undergo any medical test on the day of the occurrence of the incident, for which he has been charge sheeted and hence, his MLC was not conducted. As per record, he has also apologized for his mistake/misbehaviour Thereafter the appellate authority passed an order and rejected the appeal of the applicant.

Being aggrieved by the aforesaid orders of the disciplinary authority as well as appellate authority, the applicant has filed this OA seeking the reliefs as quoted above.

The subject matter of this case is disciplinary proceedings initiated against the applicant by the respondents on the basis of charge sheet and the applicant has himself given an apology with regard to the allegations levelled against the applicant in the chargesheet. The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. 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 eye of the Court. When an inquiry is conducted on charges of a 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 be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

7 Also in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. i. the finding of fact is based on no evidence."

In view of the facts of the case discussed above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that no procedural lapses or violation of principles of natural justice was substantiated by the applicant, there is no ground for interference in the impugned orders, especially having regard to applicant's his own written apology as annexed at page 82 of the paperbook.

So far as the contention of applicant that punishment awarded is not commensurate with the gravity of misconduct alleged against him is concerned, it is well settled proposition of law, as held by the Hon'ble Apex Court in catena of cases, that it is only in those cases where the punishment is so disproportionate that it shocks the conscience of the court that the matter may be remitted back to the authorities for reconsidering the question of quantum of punishment. In Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad reported in 2010 (3) ALSLJ SC 28 it has been held by Hon'ble Supreme Court as under:-

"The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised 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".

Having regard to the gravity of the contents of the chargesheet and the fact that applicant has himself given his written apology in relation to the said incident, the punishment awarded by the disciplinary authority vide impugned order dated 20.3.2015 and the same was confirmed by the appellate authority vide Order dated 29.3.2016, we are of the considered view that punishment imposed by the aforesaid impugned orders is not so disproportionate that it shocks the conscience of the court, therefore, we do not find any case is made out for interference by the Tribunal even on the question of quantum of punishment.

Accordingly, the OA being devoid of merit is dismissed. No order as to costs.