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Judgment
Anil Kumar, J.—This is a petition under Article 226 of the Constitution of India seeking quashing of order dated 10th April, 1989 imposing a penalty of stoppage of one increment without cumulative effect for the misconduct committed by the petitioner and for refund of Rs. 3,998/- falsely claimed as LTC expenses and for quashing of order dated 11th September, 1990 of the Appellate Authority and order dated 21st March, 1991 of the reviewing authority.
The brief facts to comprehend the controversies are that the petitioner was posted as Assistant Engineer in Kahalgaon, Super Thermal Power Project in Bihar and he went on leave travel concession to Bombay on 8th May, 1983 and returned from Bombay to New Delhi on 13th May, 1983. The petitioner alleged that he purchased first class ticket for himself and his six family members dependant on him for both sides of the journey. The plea of the petitioner is that for the journey to Bombay their tickets were not confirmed and they could not get proper berths, however, they were accommodated and they travelled sitting throughout the journey. While returning from Bombay on 13th May, 1983 the tickets of the petitioner were not confirmed and they were wait- listed and consequently the petitioner and his family members boarded the train at night in second class. The petitioner alleged that the Railway Traveling Ticket Examiner had assured that the petitioner and his family members shall be accommodated at Surat. Since no accommodation was available in first class, he was left with no choice but to travel in second class up to Surat and thereafter they sat in first class compartment unreserved upto New Delhi.
The assertion of the petitioner is that he submitted his LTC claim bill on 12th August, 1983 amounting to Rs. 3,998/- towards his claim for both onward and inward journeys undertaken by the petitioner and the members of his family against an advance of Rs. 4020/- and a refund of Rs. 22/- of travelling allowance advance was also made. The claim of Rs. 3,998/- was allowed and passed by the competent authority.
Almost three years after his LTC bill was approved and passed the petitioner was charge sheeted on 11th November, 1986 on the allegation of filing a false LTC claim. It was alleged against the petitioner that while travelling, the petitioner did not travel by first class and his two children namely son Master Arun Kain and daughter Ms. Pinky were minor. However, the petitioner claimed full ticket for his son and half ticket for his daughter Ms.Pinky, though she was below 5 years of age and, therefore, no ticket was required. The petitioner contended that the chargesheet was issued 2'' years after the LTC claim was settled and in the meantime all the records of reservation etc. maintained by the Railways had been destroyed as according to Railway procedure and practice the record is maintained for six months only. The petitioner also asserted that his promotion was due on 1st July, 1986 and his case was processed and he also appeared for test and interview. His next promotion was for S-4/E-1 grade and his name was approved by the DPC after the petitioner appeared for test and interview in July, 1986 and his name was included in the panel according to his information, however, he was not promoted and an undertaking for posting outside Delhi/Dadri was taken from the petitioner.
Regarding the enquiry conducted, petitioner has contended that the principles of natural justice were not complied with as the enquiry officer at many stages had assumed the role of a prosecutor. It was pleaded that while conducting cross examination of prosecution witness Sh.K.A.Hanfi, many relevant questions put to him in the cross examination were not allowed in as much as the report of the investigating vigilance inspector was allowed to be referred to but was not shown to the petitioner. It is alleged that the report of investigating vigilance inspector was the basis of the chargesheet, however, the same was not shown to the petitioner which was also submitted 2'' years before the chargesheet was issued to the petitioner.
The petitioner also challenged the enquiry proceedings on the ground that day to day enquiry proceedings were not supplied to him and even the statements of prosecution witnesses as well defence witnesses and the order- sheets were not given to him.
The petitioner also relied on a letter dated 23rd May, 1987 addressed to disciplinary authority seeking change of enquiry officer on the ground that he is prejudiced and biased and the petitioner lacks confidence in him. However, his request was declined and communicated to the petitioner by letter dated 29th July, 1987 from Senior Superintendent, Mr.N.P.Singh. The enquiry officer gave a report dated 1st November, 1988 holding the petitioner liable for the misconduct which was accepted by the disciplinary authority and the penalty of stoppage of one increment without cumulative effect and a direction for refund of Rs. 3998/- was passed by order dated 10th April, 1989.
An appeal was filed against the order of the disciplinary authority dated 10th April, 1989 which was also dismissed by General Manager (B), Appellate Authority by order dated 11th September, 1990. A revision was filed by the petitioner against the dismissal of his appeal by order dated 11th September, 1990 which was also dismissed by the reviewing authority by his order dated 21st March, 1991.
The petitioner has challenged his punishment on the ground that the chargesheet was vague; copies of the documents were not furnished; report of investigating inspector was not shown to him; additional witnesses and documents were not allowed; day to day proceedings were not given to him; copies of the statements of witnesses recorded were not given; the enquiry officer was prejudiced and biased, however, his request for change was not accepted; cross examination of defence witnesses was done by the enquiry officer; the findings of the enquiry officer are cryptic and without any rational basis; the order imposing punishment is a non speaking order and the orders passed by the appellate and reviewing authority were also cryptic and without application of mind.
10 The petitioner has also challenged the imposition of penalty on the ground that same tantamount to double jeopardy in as much as his promotion in 1986 was also withheld on account of disciplinary proceedings and the policy of promotion in the circumstances is not in accordance with the statutes of the company and deserves to be struck down. It is also alleged that there is an undue delay in issuing chargesheet 2'' years after his bills for LTC were passed and approved. It is also contended that the petitioner has been singled out though there had been similar cases of LTC claims of other staff members. The petitioner has also relied on birth certificate dated 4th August, 1987 of Pinki issued by Pradhan, Gaon Sabha Nangal Raya under the Registration of Birth and Deaths showing the date of birth of baby Pinky as 1st January, 1978. The reliance has also been placed on the birth certificate dated 4th August, 1987 of the son namely Arun Kain showing his date of birth as 22nd July, 1970.
The petitioner has relied on Mohanbhai Dungarbhai Parmar v. Y.B.Zala and Anr. 1980 All India Services Law Journal page 477 to contend that non compliance of the conduct and discipline rules of National Thermal Power Corporation Ltd. will vitiate the penalty imposed upon the petitioner. In order to substantiate the plea of the petitioner that the disciplinary, appellate and reviewing authority have passed the orders mechanically without dealing with the contentions of the petitioners, the reliance has also been placed on R.P. Bhatt v. Union of India and Ors. A.T.R 1986 SC 149 and Ram Chander v. Union of India and Ors. A.T.R.1986(2) SC 252. The petitioner has also relied on the judgment of a Single Judge of Madras High Court M. Vishwanathan v. Government of Tamil Nadu and Ors. 1989 Lab.I.C.1567 to contend that though the petitioner was entitled for promotion in 1986the petition filed by the petitioner in 1993 for his promotion was maintainable and the promotion could not be denied to him.
The petition is contested by the respondent contending inter-alia that in exercise of its jurisdiction under Article 226 of Constitution of India, this Court will not re-appreciate the evidence and draw different inferences than the inferences drawn by the enquiry officer. It is asserted that the enquiry was conducted in accordance with the principles of natural justice. It is contended by the respondent that the punishment imposed on the petitioner is of a mild nature considering the charges framed against him as he had involved himself in an act unbecoming of a Government servant. The plea of the respondents is that petitioner indulged in an act unbecoming of a Government servant by fraudulently claiming the LTC for the block year 1980-81. The respondents also pleaded that the chargesheet reflects various ingredients of different charges and even if one of the charge stood proved against the petitioner, it was enough for the disciplinary authority to impose the punishment. The respondent specifically contended that the petitioner travelled from Bombay to New Delhi in second class and not upto Surat as was alleged by the petitioner. According to the respondents the petitioner has concocted the story and as per his own statement at the time of admission of his children in Central School the date of birth of his son was disclosed as 22nd June, 1974 and the date of birth of his daughter was disclosed as 1st January, 1979. The date of birth certificates produced by the petitioner showing the date of birth of son as 22nd July, 1970 and 1st January, 1978 are stated to be after thoughts. It is stated that the petitioner has manipulated the subsequent certificate alleged to have been issued by some Pradhan of a village. Regarding the delay in initiating the proceedings, it is stated that the investigation took time and thereafter the approval from the authorities was required and considering the facts and circumstances there is no such delay which will entail the consequence of quashing of disciplinary proceedings against the petitioner.
I have heard the learned Counsel for the parties in detail and have also perused the files of the disciplinary proceedings and the precedents cited by the parties. Perusal of the case law on the issue of the scope of interference in a domestic enquiry and applicability of the strict and sophisticated rules of evidence to the domestic enquiry clearly establishes that once a domestic tribunal based on the evidence arrives at a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. Thus if an enquiry held is consistent with the rules and in accordance with the principles of natural justice and the misconduct is proved, then the Tribunal has no power to substitute its own discretion for that of the said disciplinary authority, unless it is mala fide, arbitrary or the findings are quite perverse. If an enquiry is properly conducted, then the departmental authorities are held to be the sole judges of the facts and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be argued upon or disputed before the Tribunal. The following judgments rendered by the Supreme Court fortify the aforesaid conclusion:
(i) Martin Burn Ltd. Vs. R.N. Banerjee, .
(ii) State of Orissa Vs. Bidyabhushan Mohapatra,
(iii) State of Andhra Pradesh Vs. Sree Rama Rao,
(iv) State Bank of India and Others Vs. Samarendra Kishore Endow and Another,
(v) The Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal etc.,
(vi) Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate,
(vii) Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane,
(viii) Employers, Mgmt., M. Colliery, BCCL Ltd. Vs. Bihar Colliery Kamgar Union through Workmen,
(ix) V. Ramana Vs. A.P.S.R.T.C. and Others,
(x) Hombe Gowda Edn. Trust and Another Vs. State of Karnataka and Others,
(xi) L.K. Verma Vs. H.M.T. Ltd. and Another,
From the ratio of these judgments it is apparent that this Court in exercise of its jurisdiction under article 226 of Constitution of India is not to substitute with the inferences drawn by the disciplinary authority and Appellate authority with its own inferences. In Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, the Supreme court had held:
By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority.
Thus it is a settled position of law that in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is not to interfere with factual findings of the disciplinary authorities and should restrain itself from re-appreciating evidence while exercising powers of judicial review. Writ court is not to interfere with the orders of an inferior tribunal or subordinate court unless their order suffers from an error of jurisdiction or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. The objective of judicial review is that a person receives a fair treatment and objective is not to re- appreciate the entire pleas and evidence and draw inferences again. 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 the eye of the court.
The misconduct which has been alleged against the petitioner is that though he did not travel first class from Mumbai to New Delhi, however, he claimed the LTC expenses for first class fare and he claimed the fare for his minor son and minor daughter not according to their age. The Enquiry Officer has considered the pleas and contentions of the parties, especially the explanations given by the petitioner. The disciplinary authority has also considered the pleas raised by the petitioner. While disposing of the appeal dated 20th April, 1989 against the order dated 10th April, 1989 the pleas and contentions on behalf of the petitioner has been considered.
The Enquiry Officer did not give any credence to birth certificates dated 4th August, 1987 issued in respect of the minor daughter, Ms.Pinky as the same pradhan who had issued the certificate on 4th August, 1987 had issued another certificate giving another date of birth. It was noticed that the petitioner himself had stated the date of birth of his son Master Arun Kain as 22nd June, 1974 in a letter addressed by him to Senior Personnel Officer on 7th July, 1983 and in another declaration he had given the date of birth of his daughter, Ms. Pinky as 1st January, 1979 and just a few days after the said declaration, the petitioner had filed his claim on 13th August, 1983 and the amounts were claimed which were not in consonance with the ages as declared. The certificates which have been relied by the petitioners in the enquiry proceedings were issued almost 4 years after the claim for LTC was filed which have not been accepted by the authorities. The disciplinary authority and the Enquiry Officer have considered these aspects. The appellate authority and reviewing authority have concurred with the inferences drawn. In the circumstances, it is not possible for this Court to draw different inferences.
The learned Counsel for the petitioner has very emphatically argued that competent authority accepted the findings of the Enquiry Officer without application of mind and without appreciating the facts. It is also contended that the Enquiry Officer was biased and did not allow the petitioner to cross examine the witnesses of the respondent on some material aspects. Perusal of the record and the representations made by the petitioner to the respondent, however, reveals that no such allegation that the petitioner was not allowed to cross examine on certain aspect, was made against the Enquiry Officer. The learned Counsel for the petitioner has pointed out a letter dated 23rd May, 1987 written by the petitioner to Sh.N.P.Singh, Sr.Superintendent, Appellate Authority. Perusal of the copy of the said communication, however, reveals that the allegations are regarding the alleged help rendered by the Enquiry Officer by showing the documents on record to the witnesses of the respondent before recording their answers. The allegations were also made that in some instances the enquiry was conducted in the absence of presenting officer and the copies of the statements of the witnesses and proceedings were not given and consequently he had lost faith in the Enquiry Officer. In the circumstances, the plea now raised by the petitioner that the witnesses were not allowed to be cross examined on some material aspect, is apparently an afterthought. The learned Counsel for the petitioner is unable to show from the grounds of appeal filed before the Appellate Authority that such a ground was taken that the petitioner wanted to cross examine the witnesses of the respondents 2 to 4 on some material aspect which was declined without any justification. Consequently, the plea of the petitioner in this respect also cannot be accepted.
The other grievance of the petitioner is that he was not allowed to summon certain witnesses. The Enquiry Officer has dealt with the plea of the petitioner regarding such witnesses and has held that he did not have jurisdiction to summon an external agency or documents especially because the petitioner could have obtained the copies of these documents from the concerned offices. Nothing has been produced by the petitioner to show that the copies of the documents which he wanted to produce had been destroyed. On the contrary on the basis of the record of the Railway Authorities, a document was produced by the respondents 2 to 4 which has not been challenged by the petitioner. No suggestion was given to the witness who had obtained the said document from the Railways authorities that the document produced by him was not in consonance with the Railway record. In the circumstances on the grounds as has been raised by the petitioner there does not appear to be any manifest error or such illegality which will require interference by this Court by re-appreciating all the evidence and reaching different inferences than as has been drawn by the disciplinary authority and the Enquiry Officer. The inferences drawn by the Enquiry Officer, disciplinary authority, appellate authority and reviewing authority are feasible in the facts and circumstances and in exercise of its jurisdiction under Article 226 of the Constitution of India, this Court does not have to substitute the inferences drawn by the authorities with its inferences. In any case this Court does not find any reason to differ from the inferences drawn by the authorities.
In R. P. Bhatt (Supra) relied on by the petitioner, the Supreme Court considered whether the order of Director General, Border Roads Organization was in conformity with Rule 27 (2) of Central Civil Service (C.C.A) Rules. The order impugned was a mechanical reproduction of the phraseology of Rule 27(2) and only stating that the punishment imposed was just and in accordance with rules. In these circumstances it was held that the appellate authority has not only not given a proper hearing to the Government servant concerned but had also not passed a reasoned order dealing with the contentions raised by him in the appeal. The precedent relied on by the petitioner is clearly distinguishable in the facts and circumstances as the appellate authority and reviewing authority passed the orders after giving hearing to the petitioners and their orders cannot be construed to be mechanical. In Mohanbhai (supra) relied on by the petitioner, a constable was removed from service on account of his absence from morning parade and the disciplinary proceedings were started against him after one and a half year of his absence from morning parade. In those circumstances, it was held that there was delay in initiating the disciplinary proceedings as no valid reason was given for not taking disciplinary action immediately after he was found absence in the morning parade. Apparently the case relied on by the petitioner is distinguishable. The LTC claim which was filed by the petitioner could be found to be incorrect only after considerable investigation and after sending an official to the concerned cities and obtaining a document from the Railway authorities and thereafter taking approval from the concerned authorities. It is no more res integra that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , the Supreme Court had held as under:
There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.
In State of Maharashtra Vs. Kalu Shivram Jagtap and Others, it was observed as under:
The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases.
In the circumstances on the basis of the ratio of the above decisions it cannot be said that there is non-compliance of rules of the respondent and the penalty imposed upon the petitioner is vitiated. In Ram Chander (supra) the Apex Court had interfered and set aside the order passed under Rule 22 (2) of the Railways Servants (Discipline and Appeal) Rules, 1986 which was passed without marshalling the evidence on record and giving reasons. In contradistinction, in the case of the petitioner the orders have been passed after considering the evidence and pleas and contentions of the parties and the orders record the reasons. Another judgment relied on by the petitioner, M. Viswanathan (supra) is also distinguishable as in the case relied on by the petitioner, no disciplinary proceedings were pending. If the petitioner was not given promotion, he ought to have challenged the same. On the basis of the said precedent the petitioner is not entitled to claim that the disciplinary proceedings against him imposing the penalty of stoppage of one increment and refund of Rs. 3,998/- claimed by him in 1983, is liable to be quashed.
Therefore, in the circumstances, there are no grounds to differ with the findings of the authorities below imposing a penalty of stoppage of one increment without cumulative effect for misconduct of the petitioner and directing him for refund of Rs. 3, 998/- falsely claimed by him as LTC expenses in 1983. In the circumstances, the orders dated 10th April 1989 of the disciplinary authority, 11th September, 1990 of the appellate authority and order dated 21st March, 1991 of the reviewing authority are not liable to be set aside. The writ petition is without any merit. The writ petition is, therefore, dismissed with a cost of Rs. 10, 000/- payable by the petitioner to the respondent Nos. 2 to 4.