Yashbir Singh vs Regional Manager

S.N.Terdal, J

We have heard Mr. Lalta Prasad counsel for applicant and Mrs. Arati Mahajan Shedha, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"8.1. Quash & set aside the punishment order No. RHN-1/AI(T)/CS-18/2013/5038 dt. 18.11.2013 and order No. RHD-II/AI (T)/2014/ 2421 dated 11.7.2014 passed by Appellate Authority.

8.2. Direct the Respondents to reinstate to applicant in service with all consequential benefits.

8.3. Impose exemplary cost of Rs.100000/- upon the respondent for their illegal, predetermined action.

8.4. Pass any such order which deems fit and proper."

The relevant facts of the case are that for remaining wilfully and un-authorisedly absent for more than 146 days and he having been habitual in wilful and unauthorized absent in the past, a charge sheet was served on him on 31.05.2013. Alongwith the charge sheet, as per the relevant rules, statement of imputation of misconduct, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the charge, an Inquiry Officer was appointed. The Inquiry Officer after conducting the department enquiry as per rules and also giving reasonable opportunity to the applicant following the principles of natural justice came to the conclusion that the charges levelled against the applicant were proved. As per rules, the applicant was served with the inquiry report. The applicant submitted his representation against the inquiry report. The disciplinary authority after perusing the entire enquiry report and carefully considering the representation filed by the applicant imposed a penalty of removal from service from the Corporation w.e.f. 18.11.2013 vide order dated 18.11.2013. The applicant filed an appeal. The applicant was informed that the appellate authority rejected his appeal by an intimation dated 11.07.2014.

The respondents in their counter affidavit at para 4.1 further stated that the applicant was warned censures twice and imposed penalty also on several occasions in the past. The relevant portion of the reply is extracted below:

"The applicant was on earlier occasions first suspended and punished with stoppage of next due one increment without cumulative effect. Due to removal of air from the type during duty and wrongful lodging of report in the control room regarding breakdown of bus and carelessness towards duty and causing financial loss to the Corporation. In 1996 he was punished with a token penalty of Rs.300/- due to damage to bus no. 6345. In 1997 "warning" was given to him to damage of tyre on 22.5.1997. Again he was punished with token penalty of Rs.80-/- due to tyre damage in 2004. Again he was punished with a token penalty of Rs. 250/- due to damage of bus in 2004. A 'warning' was issued to him in September 2004 due to missing of a trip. Again in 2006 he was punished with a token penalty of Rs.75/- for tyre puncture of bus no. 2608. Once again 2006 he was punished with a token penalty of Rs.30/- due to tyre damage. On 22.12.09 he was "reprimanded" due to misc. assay damage of bus no. 2243. In Aug 2010 the applicant was suspended for deliberate late out shedding by 20 minutes of the bus, deliberately delaying the bus by help an hour at Avantika Terminal for eating food and for missing the Mori Gate. In November 2010 he wa "censured" for the above said misconduct. In January, 2011 he was suspended for causing accident with the car No. DL-IC 2-6244 while driving he bus under the influence of liquor. In the said case he was punished with stoppage of next due two increments with cumulative effect in July 201. In May 2011 he was punished with token penalty of Rs.100/- due to breaking of LHS Panel No. 3 and 4 in bus. In March 2012 he was 'censured' due to unauthorized absence w.e.f. 13.12.2011 to 22.1.2012 (total 41 days). He was again in October 2012 punished with full penalty of Rs.956 due to missing of fire extinguisher of bus no. 1937."

The counsel for the applicant vehemently and strenuously contended that it is a case of no evidence and that the applicant remained absent because of his health condition and because of personal difficulty in the family. The counsel for the respondents equally vehemently contended that as stated above there is no violation of principles of natural justice nor violation of any rules governing the conducting of departmental enquiry and in view of the past service and misconduct established against the applicant the impugned orders passed by the disciplinary authority and the appellate authority do not call for interference.

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 authorityaccepts 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, uponconsideration 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".Recently 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. the finding of fact is based on no evidence."

In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice, the OA is devoid of merit.

Accordingly, OA is dismissed. No order as to costs.