Gujarat High Court
Gujarat State Road Transport Corp. Ltd. vs Karsandas Narsi Trambadia on 13 July, 1992
Equivalent citations: (1992)2GLR1393, (1994)ILLJ40GUJ
JUDGMENT C.K. Thakkar, J.
1. This appeal is filed by the Gujarat State Road Transport Corporation ("Corporation" for short), against a decree passed by the trial Court and confirmed by the Appellate Court directing reinstatement of the plaintiff in service with full back wages.
2. To appreciate the controversy in question, a few relevant facts may now be stated. The respondent is the original plaintiff and the appellant is the original defendant. The defendant is a statutory Corporation created under the Road Transport Act, 1950, and can be said to be "State" within the meaning of Article 12 of the Constitution of India. The plaintiff was serving as a Conductor at Junagadh Depot. He was served with a charge-sheet dated August 19, 1974, inter alia, alleging therein that while he was on duty on July 4, 1974 on Manavadar-Koylana route, his bus was checked by the checking staff of the Corporation near village Mandodara and certain irregularities were found. It was alleged that 8 passengers travelling from Manavadar to Koylana were found without tickets. Though they had paid the amount of fare, the plaintiff had not issued tickets to them. Similarly, 7 passengers travelling from Manavadar to Mandodara were found without tickets. According to those passengers, they had also paid the fare but the plaintiff did not issue tickets to them. Likewise, two passengers going from Mithadi to Koylana were found without tickets, though they had paid necessary amount to the plaintiff. Finally, two passengers travelling from Mithadi to Mandodara were also not supplied tickets by the plaintiff, though he had recovered amount of fare from them. Thus in all, according to the allegation of the department, the plaintiff did not issue tickets to 19 passengers even after receiving the amount of fare from them. The plaintiff also violated the departmental instructions by making road-booking even though it was not permitted. The plaintiff thereby violated Articles 7 (a) and 12 (b) of Schedule 'A' of the Discipline and Appeal Procedure of the Corporation. In view of those allegations, the plaintiff was asked to show cause as to why appropriate action should not be taken against him. The plaintiff filed his reply on September 12, 1974 controverting the allegations levelled against: him. He did not specifically deny the allegation of road- booking but he rather tried to justify the said action explaining that in doing so, there was no mala fide intention or oblique motive on his part but as the bus was late, with a view to avoid any hardship to the passengers, instead of adhering to the letter of law, he adopted practical way so that the inconvenience to the passengers could be avoided. He repudiated the allegation of misappropriation and asserted that he had not indulged in any activity which was prejudicial to or against the interest of the Corporation. He therefore, prayed for revocation of the charge-sheet issued against him.
Since the department was not satisfied with the explanation submitted by the plaintiff, a regular departmental enquiry was instituted against him. It may be mentioned that when the bus was checked and certain passengers were found without tickets, statements of some of them were recorded by the reporters in presence of the plaintiff and all of them without exception, categorically stated that they had paid the amount of fare to the plaintiff but tickets were not issued to them. Those statements were signed by the passengers and countersigned by the plaintiff. When the departmental enquiry was held against the plaintiff, the reporters, namely, Mr. Rajyaguru and Mr. Sarvaiya were examined by the department and they supported the case of the department. They stated that they had recorded the statements of the passengers in presence of the plaintiff. Those passengers had stated that even though the amount of fare was collected by the plaintiff, he did not issue tickets to them. The reporters were also cross-examined by the next friend of the plaintiff. In a reply to a question they denied that the statements of the passengers were not recorded in presence of the plaintiff or that the signature of the plaintiff was taken subsequently. It is an admitted fact that copies of the statements were supplied to the plaintiff. It is also an admitted fact that the department did not examine any of the passengers at the regular enquiry but two passengers, namely, Thakarshi Virji and Maganbhai Lakhmanbhai, whose statements were recorded, were examined by the plaintiff as defence witnesses. It is clear from the deposition of these witnesses that they sticked to their earlier version that no tickets were issued to them by the plaintiff. They however, resiled from their earlier statements regarding payment of fare. At the enquiry, they had modified their earlier version and stated that they had neither paid fare nor were given tickets. The disciplinary authority on which power is conferred appreciated the evidence of both the reporters, as also the evidence of two passengers, in the light of their earlier statements recorded by the checking staff and came to the conclusion that the charges levelled against the plaintiff were established. Regarding the inconsistency and modification of the statements and substantive evidence of Thankershi Virji and Maganbhai Lakhmanbhai, the disciplinary authority observed that looking to the facts and circumstances of the case the subsequent explanation and modification was an after-thought and was, therefore, not acceptable. Regarding road-booking also, the disciplinary authority considered the facts on record and found that it did not appear from the documentary evidence on record that the bus was late as contended by the plaintiff. Firstly, it was not stated by the plaintiff why the bus was late. Secondly, there was inconsistency regarding the time of departure in reply to the show cause notice and in personal hearing. Thirdly, the way bill No. 526590 of that date reflected that the bus left Manavadar at a scheduled time. The disciplinary authority also considered a material circumstance that as admitted by the plaintiff himself, the bus was 'local bus' and that as per the rules of the Corporation, it could not have started before the plaintiff issued tickets to the passengers, the amount of fare was shown in the way bills and the way bills were closed. Thus, road booking by the plaintiff was not justified. The disciplinary authority also rejected the contention of the plaintiff that the statements of the passengers were not recorded in presence of the plaintiff or that his signature was taken under duress or threat. On the contrary, a positive finding is recorded by the disciplinary authority that all these contentions were after-thought. According to the disciplinary authority, the way bill was closed by the plaintiff from Manavadar itself, only with mala fide intention to misappropriate the amount of fare received by him from 19 passengers and, therefore, he did not issue tickets to them. Thus, the misconduct was duly proved for which he was required to be dismissed from service and accordingly an order of dismissal was passed.
It is undisputed that an order of dismissal passed by the disciplinary authority was subject to first appeal to the Divisional Controller and second appeal to the Chairman-cum-Managing Director. Even in the dismissal order, it was slated that if the plaintiff was aggrieved by the order of the competent authority, he could file an appeal to the Divisional Controller, State Transport Corporation, Junagadh within a period of one month from the date of the receipt of the order. It is an admitted fact that the plaintiff did not file an appeal. Instead, he invoked the jurisdiction of the Civil Court by filing Regular Civil Suit No. 787 of 1975, praying therein that the order of dismissal passed by the Corporation was null and void and the proceedings were ultra vires and violative of the principles of natural justice. He sought a declaration that he should be treated as continued in service and be granted full back wages and other consequential benefits.
The Corporation filed a written statement at Exh.7 inter alia contending that the suit filed by the plaintiff was not maintainable at law; that the relationship of the defendant and plaintiff was of 'Master and Servant' pure and simple and no relief of reinstatement in service could be granted. On merits, it was contended that the order passed by the disciplinary authority was legal, valid and in accordance with the law. It was denied that the principles of natural justice were not observed. It was stated that the copies of the statements of passengers recorded at the time of checking of the bus were supplied to the plaintiff. Regular enquiry was instituted and the allegations were held proved. It was asserted that it was not necessary to examine the passengers at the enquiry. It was denied that there was "no evidence" or the findings recorded by the disciplinary authority were perverse or unreasonable. It was, therefore, prayed that the suit filed by the plaintiff should be dismissed.
Necessary issues were framed by the trial Court and by judgment dated July 13, the trial Court decreed the suit of the plaintiff, holding the order of dismissal illegal, null and void. It is pertinent to note that even according to the trial Court, the plaintiff failed to prove that the bus was late. It also observed that plaintiff was not justified in resorting to road-booking. The trial Court observed as under:
"Looking to the facts and circumstances of the case, it is clear that the plaintiff is not at all justified in doing road-booking. He has also not led sufficient and satisfactory evidence to show that the Bus in question was late or that he acted in the interest of the passengers".
At another place also, the Court observed that "there appeared to be mala fide intention on the part of the plaintiff in not issuing tickets to as many as 15 passengers who had boarded the bus from Manavadar. it may be mentioned that 8 passengers were going from Manavadar to Koyalana and 7 passengers to Mandodara. If the plaintiff has no dishonest intention then, he would have certainly issued tickets to the said 15 passengers."
The trial Court in spite of the above findings decreed the suit mainly on the ground that the passengers whose statements were recorded by the checking staff at the time of checking of the bus were not examined by the department at the enquiry and thereby the principles of natural justice were violated.
Being aggrieved by the decree passed by trial Court, the Corporation preferred Regular Civil Appeal No. 122 of 1977 in the Court of District Judge, Junagadh. The learned District Judge, by a judgment dated September 10, 1979 dismissed the appeal filed by the appellant- Corporation and confirmed the decree which is challenged by the Corporation in the present appeal.
3. At the time of admission of the appeal, following substantial questions of law were framed by this Court:
1. Whether act committed by the respondent amounts to misconduct as provided under Rules 7 (a) and 12 (b) of Schedule appended to Discipline and Appeal Procedure Rules?
2. Whether the dismissal order was legal and valid?
3. Whether the inquiry held against the respondent is legal and valid?
4. Whether the Court below has erred in law in granting relief to the respondent as prayed for by him?
4. Mr. S.P. Sen for Mr. G.N. Desai learned Counsel for the appellant- Corporation contended that the decree passed by the Courts below is contrary to law since the Civil Court has no jurisdiction to sit over the findings recorded by the disciplinary authority. He submitted that when the evidence was appreciated by the departmental authorities and a finding was recorded, the Civil Court cannot substitute its finding for the finding recorded by the disciplinary authority. He conceded that if the principles of natural justice were violated or there was 'no evidence' or the decision was unreasonable, the same can be set aside by the Court. He, however, submitted that in the instant case,it cannot be said that there was no evidence or the decision was perverse or unreasonable.
5. Mr. Sen also submitted that when alternative remedy of appeals was available to the plaintiff, he ought to have resorted to the statutory remedy and should not have rushed to the Civil Court. The Civil Court also, in view of the availability of equally efficacious remedy, should not have entertained the suit filed by the plaintiff.
6. Mr. Sen further submitted that the Courts below have committed an error of law in holding that the principles of natural justice were violated. He submitted that administrative tribunals and departmental authorities are not bound by the strict rules of evidence and procedure and when statements of the passengers were recorded in the presence of the plaintiff and countersigned by him, copies of which have been supplied to him, there was no necessity to examine those passengers at the enquiry.
7. Finally, Mr. Sen submitted that before the disciplinary authority, there was evidence of two reporters Shri Rajyaguru and Sarvaiya. To what extent reliance should be placed on it and the probative value of that evidence is indeed in the discretion of the disciplinary authority and it was not open to the Court to interfere with the exercise of that power.
8. Mr. P.M. Thakkar, learned Counsel for the respondent-plaintiff, on the other hand supported the decree passed by the trial Court and confirmed by the appellate Court. He submitted that at the time of admission of appeal, certain questions were considered as substantial questions of law by this Court and no new point can now be permitted to be argued by the appellant at the stage of final hearing of the appeal.
9. Mr. Thakkar submitted that the action impugned in the present proceeding is of a 'civil nature' and a Civil Court can decide whether it is in violation of the principles of natural justice, improper or otherwise not in accordance with law.
10. Mr. Thakker further submitted that even if alternative remedy was available to the plaintiff as per well settled principles of law, the question is of discretion of the Court and not of "jurisdiction". He submitted that if there is violation of the principles of natural justice, the Court may grant relief. Again, it is not proper on the part of the instrumentality of the State covered by Article 12 of the Constitution of India to take such technical objection.
11. The Counsel also contended that the statements of passengers cannot be said to be evidence. It was incumbent on the part of the department to call them as witness at the enquiry so that the delinquent had an opportunity to cross-examine them. In the instant case the department had not examined any passenger at the enquiry. On the contrary, the delinquent examined two passengers as his witness and none of them supported the case of the department. Regarding the evidence of the two Reporters, it was argued that admittedly, they had no personal knowledge and they relied upon bald statements of passengers recorded at the time of checking. It was an admitted fact that the cash was not checked by the Reporters which could link the plaintiff with the illegality/irregularity alleged against him.
12. Finally Mr. Thakkar submitted that the defendant-Corporation is an instrumentality of the "State" covered by Article 12 of the Constitution and when the order was held to be null and void, the Court had power to grant consequential relief of reinstatement and back wages.
13. Having given anxious and thoughtful consideration to the arguments advanced by the learned Counsel for the parties, in my considered opinion, the decree passed by the trial Court and confirmed by the appellate Court should be reversed and the suit filed by the plaintiff should be dismissed. It seems to me clear that the disciplinary authority in undoubted exercise of powers conferred on it appreciated the evidence on record and came to the conclusion that the plaintiff had committed irregularities and illegalities as alleged against him.
14. So far as road-booking is concerned, from the extracted portion of the judgment of the trial Court, it is clear that the Court was satisfied that the plaintiff had committed breach of the relevant rules. It was not proved that the bus was late. It was not proved that the plaintiff acted in the interest of the passengers. On the contrary, there was dishonest intention on his part in not issuing tickets to as many as 15 passengers from Manavadar itself.
15. The question then remains whether it was obligatory on the part of the department to examine at regular inquiry those passengers whose statements were recorded at the time when the bus was checked by the checking staff of the Corporation. Now it cannot be denied that Administrative Tribunals have inherent powers to regulate their own procedure subject to statutory requirements. Generally, such tribunals are invested with powers conferred on Civil Courts by the Code of Civil Procedure as well as by the Evidence Act. However, they are not bound by strict and technical rules of procedure and evidence. In the case of State of Mysore v. Shivabasappa AIR. 1963.SC.375=1964-I-LLJ-24 and in a number of other cases, the Supreme Court has held that technical rules of evidence do not apply to the proceedings before the Administrative Tribunals and they can rely on what is called 'hearsay' evidence and can decide all questions arising before them exercising discretionary powers.
16. Mr. Thakkar, however placed strong reliance on the decision of this Court in State of Bombay (Now Gujarat) v. Raojibhai, AIR 1961 Guj.130. In that case, a civil servant covered by the provisions of Article 311 of the Constitution of India was sought to be dismissed from service relying on certain statements of witness who were not examined at the enquiry. The Division Bench, relying upon the decision of the Hon'ble Supreme Court in Parshotamlal Dhingra v. Union of India AIR.1958.SC.36 =1958-I-LLJ-544 and in Khem Chand v. Union of India AIR.1958.SC.300 = 1959-I-LLJ-167 held that even though strict rules of Evidence Act were not applicable to departmental enquiries, right to cross-examine witnesses at the enquiry was "an important safeguard" and if the witnesses were not examined at the enquiry and their statements were relied upon by the Enquiry Officer, it was a vital flaw and the proceedings were vitiated.
17. In my opinion, the ratio laid down by the Division Bench of this Court in Raojibhai's case (supra) would not be applicable in the instant case, in view of the fact that it was a case of a civil servant governed by Article 311 of the Constitution. The Division Bench also was conscious of that position and decided the case on that basis which becomes clear from the following observations:
"It is also not possible for us to accept the suggestion that the Inquiry Officer was entitled to use the statement of a witness, which witness has not been examined before him : and in regard to whom an opportunity of cross-examining is not given to the delinquent. This is one of the essential requirements of the provisions of Article 311(2) of the Constitution, as has been referred to by us in a previous part of this judgment. It is an important right guaranteed by the Constitution to a civil servant against whom disciplinary action is taken and against whom evidence is recorded that he should be given an opportunity of cross-examining the witnesses, who have given evidence against him".
18. It may be conceded that if the principles of natural justice require that a person whose statement is recorded must be examined at the inquiry, the contention should be upheld. In my judgment, however, that is not the requirement of law. Neither in England nor in India, it is. considered a part and parcel of natural justice that a person whose statement is recorded prior to holding of enquiry should also be examined at departmental enquiry. In my opinion, therefore, the ratio laid down in Raojibhai's case (supra) must be restricted to the facts of that case.
19. Another judgment on which reliance was placed is the case of Mohanlal v. Gujarat State Road Transport Corporation, Gujarat 1977 (1) SLR 30. According to the learned Counsel, Mohanlal's case (supra) squarely covers the present case in favour of the plaintiff. In Mohanlal's case(supra), a conductor was dismissed from service since he was held guilty of misappropriation of amount. In that case also, a contention was taken on behalf of the conductor that though statements of passengers were recorded, they were not examined at the regular inquiry and the principles of natural justice was violated. Upholding the contention and observing that the principles of natural justice were violated, this Court granted reinstatement.
20. I am of the view that the ratio laid down in Mohanlal's case (supra) would not be of any assistance to the plaintiff and cannot be pressed into service. In that case, an "oral statement" was made by one Mr. Gohel. It was 'behind the back' of the delinquent and he knew nothing about it. On the basis of the oral statement attributed to Mr. Gohel, the delinquent was found guilty of misconduct and dismissed from service. Again, according to the Division Bench, a serious illegality was committed by the enquiry officer in relying upon a statement contained in a letter alleged to have been written by one Dharamshi Patel, MLA at the material time. There was no other evidence on record, on the basis of which the impugned action was taken. In these circumstances, the Court held that it was a case of 'no evidence' and the inquiry was vitiated and the order of dismissal was null and void.
21. Mr. Sen on the other hand, heavily relied upon the decision of the Supreme Court in State of Haryana v. Rattansingh 1982-I-LLJ-46 and submitted that in view of the law laid down therein, the point no longer remains res Integra and such statements can be relied upon by the disciplinary authority in coming to a conclusion one way or the other. In Rattan Singh's case (supra) also, certain passengers were found without tickets, when the flying squad undertook inspection of the bus and proceedings were initiated against the conductor. In spite of departmental instructions to the checking Inspectors to record statements of passengers, the statements could not be reduced into writing by the flying squad, in view of the fact that though all of them had stated orally that they had paid the amount of fare but were not issued tickets, they refused to give statements in writing. None of them was examined at the inquiry. Yet an order of termination from service was passed against the delinquent which was challenged by him by filing a civil suit. Dealing with the contention of admissibility of oral statement of the passengers, Krishna Iyer, J. observed: (p.47) "It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrarines, bias or surrender of independence of judgement vitiate the conclusion reached, such finding, even though of a domestic tribunal, cannot be held good. However, the Courts below misdirected themselves perhaps in insisting that passengers who had come in and gone out should be chased and broughtbefore the tribunal before a valid finding could be recorded. The 'residium' rule to which Counsel for the respondent referred, based upon certain passage from American Jurisprudence, docs not go to that extent nor does the passages from Hals-bury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular Court proceedings but in a fair common sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on the ground".
22. In view of this unequivocal and clear proposition of law set out in Rattan Singh 's case (supra), it seems to me very clear that there is no legal bar on the disciplinary authority in placing reliance on the statement of passengers recorded at the time when the bus was checked by the checking staff of the Corporation. Since strict and technical Rules of evidence and procedure do not apply to departmental enquiries, the connotation "evidence" cannot be understood in a narrow, technical sense as to include only that evidence adduced in a regular Court of law when a person is examined as a witness by administering oath. There should not be any allergy to "hearsay evidence" provided it has reasonable nexus and credibility.
23. In my judgment, the correct principle of law is found in the following observations of Diplock, J in R. v. Dy. Industries Commissioner, ex parte Moore 1965 (1)ALL ER 21:
"These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but that he must lake into account any material which as a matter of reason, has some probative value. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his".
24. From the above case law, it becomes clear that it is open to the adjudicating authority to accept, rely and evaluate any evidence having probative value and come to its own conclusion, keeping in mind judicial approach and objectivity, exclusion of extraneous material and observance of the rule of natural justice and fair play. In short the essence of the doctrine is that fair opportunity should be afforded to the delinquent at the enquiry and he should not be hit below the belt.
25. Moreover, according to me, the jurisdiction of Civil Court in such cases is indeed limited. The Court cannot exercise appellate powers and substitute its findings for the findings recorded by the disciplinary authority. It is no doubt true that if there is 'no evidence' or the decision is "so unreasonable that no reasonable man could have ever come to it", or the decision is "so outrageous" in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it "or that it is so absurd that one is satisfied that the decision-maker must have taken leave of his senses", it calls for interference by a competent Court of law.
26. The question, however, is, can it be said that the decision impugned in the present proceedings is of such a nature? I have no hesitation in holding that it is not. After considering the oral and documentary evidence the disciplinary authority held that the plaintiff had committed breach of rules by resorting to road- booking. The disciplinary authority also recorded a finding that the plaintiff could not show that the bus was late. In fact, from the evidence on record, it was proved that the bus was not late and the contention was an after-thought. The authority also observed that since the bus was "local bus", the plaintiff was not justified in closing way bill before giving tickets to all passengers. Again, there was evidence of two witnesses, viz., Reporters S/Shri Rajyaguru and Sarvaiya. There was substantive evidence of two passengers, Thakersi Virji and Maganbhai Lakhmanbhai who were examined by the plaintiff as defence witnesses. To what extent reliance should be placed on the evidence of those witnesses is in the jurisdiction of the disciplinary authority and Civil Court cannot interfere with the said jurisdiction and to reappreciate, review or substitute its finding for the finding recorded by the disciplinary authority. Therefore, in the instant case, over and above the evidence in the form of statements of passengers recorded by the checking staff who were not examined at the inquiry, there was other evidence also. Ultimately, before a decision can be termed as unreasonable, one has to bear in mind that it has been rightly said that "two reasonable persons can perfectly come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable". Therefore, even if it may be assumed that had the Court exercised the power of disciplinary authority, it might have taken a view different than the one taken by the disciplinary authority, it cannot be said to be a sufficient ground to interfere with the decision arrived at by that authority. The scope of judicial review in such matters cannot be equated with the appellate powers. The Court has jurisdiction to decide the correctness of the decision- making process. It has, however, no jurisdiction to decide the correctness of the decision itself. If the judicial process adopted by the disciplinary authority is in accordance with law, the said process cannot be said to be vitiated even if the ultimate decision is wrong in fact or even in law. The Court cannot decide whether the evidence was or was not adequate or sufficient or that on the same set of facts and evidence, a contrary conclusion was also possible.
27. In my opinion, therefore, the Courts below have really exceeded their jurisdiction in re-appreciating the evidence and in setting aside the order of dismissal passed by the disciplinary authority. The said action is clearly wrong in law and the decree requires to be reversed. In the result, the appeal is allowed. The decree passed by the trial Court and confirmed by the appellate Court is hereby set aside and the suit filed by the plaintiff is ordered to be dismissed, however, in the facts and circumstances of the case, with no order as to costs.