Allahabad High Court
U.P. State Road Transport Corporation ... vs Abdul Gafoor Son Of Manzoor Elahi on 10 January, 2006
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT
S. Rafat Alam and Sudhir Aqarwal, JJ.
1. This is an intra court appeal under the Rules of the Court against the judgment of the Hon'ble Single Judge of this Court in Writ Petition No. 21069 of 1990 allowing the writ petition of the petitioner respondent.
2. It appears that a disciplinary proceeding was initiated against the petitioner respondent in respect of charge of negligence constituting misconduct on account of which the appellant No. 1 has suffered a loss of Rs. 95000/-. Consequently, he was placed under suspension vide order dated 7.9.1989 and was served with a charge sheet, a copy whereof is enclosed as Annexure-1 to the affidavit filed in support of the stay application. From a perusal thereof it is evident that the allegations against the petitioner respondent, in brief, that when he was working as Junior Foreman (Electrical) in Garh Depot, tyre of Bus No. UGL 841 of Bareilly Depot burst while going to Delhi. The driver, therefore, brought the bus to the workshop at Garh at about 10.30 PM and requested the petitioner respondent to take remedial steps, but he instead of taking any step, directed the driver to take help from Bareilly Depot. The driver, therefore, left the bus in the workshop in Garh and went to Bareilly. However, in the workshop the tyre of the bus, on account of heat, caught fire. By the time fire was extinguished, damage to the extent of Rs. 95000/- had caused to the bus. The petitioner respondent refuted allegations vide reply dated 28.9.1989 claiming to be not guilty of charges stating that the bus of Bareilly Depot came in the night at about 10.30 PM on 31.8.1989. The driver of the bus reported that its two tyres are burst. His further defence was that the bus in question being Leyland Bus, its tyres were not available in the depot and, therefore, he entered the fact in the register and instructed the driver to take help from Bareilly Depot. The instruction was also mentioned in the duty slip of the driver. The bus was thereafter parked in the depot and the petitioner respondent left the depot at about 2 AM after his duty time was over. It has also been said that so long he was on duty till 2 AM, the bus did not caught fire nor there was any smell of burning of tyre. The enquiry officer found that the petitioner respondent is partly guilty of charges. However, the disciplinary authority disagreed with the opinion of the enquiry officer, hence issued show cause notice which was replied by the petitioner respondent. The disciplinary authority thereafter passed the order dated 26.7.1990 holding him guilty of negligence constituting misconduct on account of which the Corporation has suffered loss of Rs. 95000/- and ordered for recovery of half of the amount of loss, i.e. Rs. 47,500/- from the salary of the petitioner respondent. It is this order which was impugned in the writ petition.
3. The Hon'ble Single Judge having perused the record and having heard learned Counsel for the parties, found that the finding of the disciplinary authority is based on irrelevant consideration, imagination and not on relevant material on record, hence based on surmises and conjectures, and thus, being perverse, cannot be accepted. It has further been held by the Hon'ble Single Judge that the loss caused to the Corporation cannot be directly attributable to the alleged negligence of the petitioner-respondent and, therefore, he cannot be held guilty of such negligence amounting to misconduct.
4. Sri Samir Sharma, learned Counsel appearing for the appellant vehemently contended that the respondent was negligent in discharge of official duty which resulted into loss of Rs. 95000/- to the Corporation and thus, there was no scope for interference under the writ jurisdiction of this Court. It is submitted that had the petitioner-respondent checked the bus immediately, the fire could have been avoided and the corporation would not have suffered loss. It is submitted that there was sufficient evidence to establish the guilt of the petitioner respondent, but the Hon'ble Single Judge did not appreciate the same in its truer perspective.
5. In our view, the contentions made are bereft of merit. It is true that in the matters of departmental proceeding, judicial review is not akin to adjudication on merit by appreciating evidence as an appellate authority and the scrutiny is only confined to find out as to whether the order suffers from any error of law or procedural error, which has resulted in manifest miscarriage of justice, or the order impugned is in violation of principle of natural justice. However, the finding of the disciplinary authority and the inquiry officer must be based on some evidence and where the conclusion or finding reached by the disciplinary authority is based on no evidence or no reasonable person would have ever reached to such conclusion, the same can be interfered with. In the case of Syed Rahimuddin v. Director General, CSIR , the Hon'ble Apex Court held as under:
It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man.
6. Therefore, no doubt, in a departmental proceeding the departmental authorities are the sole judge of the facts and if there is some legal evidence on which their findings can be based, adequacy or reliability of that evidence is not the matter which can be permitted to be canvassed in a judicial proceeding, but at the same time there should be some evidence which may reasonably support the guilt of the delinquent and where no prudent person would have ever reached on the basis of material available, such finding cannot be approved. In the case in hand, the inquiry officer though found that the petitioner respondent is not responsible for the fire which had taken place in the bus, however, the disciplinary authority disagreed with the finding with regard to the liability of the petitioner in respect of catching of fire and held him liable for the said charge also without recording any reason for his disagreement while issuing show cause notice to the petitioner respondent. The Hon'ble Single Judge has also found that there is no evidence to support such allegation and observed in the judgment under appeal as under:
From a perusal of impugned order dated 26.7.1990 passed by Disciplinary Authority it appears that no cogent reasons has been recorded for disagreement with the aforesaid findings of enquiry officer. Besides this, it is also nowhere mentioned that on the basis of statement of any witness or statement of any expert witness it was found that fire caught to the bus only on account of its driving in defective condition of bursting of tyres and due to which after 4-5 hours when the bus was parked in depot, the fire caught to bus. In absence of such concluded opinion based on statement of expert witness in this regard it cannot be authoritatively held that fire caught to the bus only on account of its driving in the defective condition and petitioner can be held responsible for the negligence in not checking the bus otherwise the incident causing loss/damage to the Nigam would have been avoided.
Thus in view of the aforesaid discussion I am of the considered opinion that in absence of cogent material on record, the findings of the Disciplinary Authority in this regard is based on irrelevant considerations and based on imaginations, inasmuch as surmises and conjectures not on relevant materials on record hence perverse and cannot be accepted. Further unless it is found that loss caused to Nigam can be directly attributable to the alleged negligence as a natural consequence of it, the petitioner cannot be held guilty of such negligence amounting misconduct levelled against him. In other words unless it is found that fire caught to the bus as a natural consequences of driving of Bus in defective condition of bursting of tires of the bus the petitioner cannot be held responsible for the same. In absence of such material it cannot be said at all that it is on account of negligence of the petitioner only the Nigam has suffered such a loss.
7. The record no where shows that there was any evidence whatsoever to co-relate the fire which took place at about 2.20 A.M. in the night due to any act or negligence of the petitioner-respondent It is also apparent that after the petitioner-respondent left his duty the person who joined in his place at that time did not found any thing wrong and pointed out the same to the petitioner respondent when he was leaving the depot. Without there being any evidence whatsoever co-relating the fire and the loss caused to the bus to be alleged act or omission on the part of the petitioner-respondent, it cannot be said that he was guilty of any misconduct and in the absence of any evidence the petitioner-respondent could not have been punished.
8. Besides, the bus was brought to the depot with burst tyre and there is no evidence that despite tyre being available in the depot, was not replaced by the petitioner respondent. Thus, in the absence of the required kind of tyre for replacement, the petitioner respondent had no option but to instruct the driver to get the tyre from Bareilly Depot. Admittedly, the fire took place when the duty time of the petitioner respondent was over and he was not present in the depot. The allegations in the charge sheet is that the bus arrived at depot at 10.30 in the night and fire was caught at 2.20 AM, i.e., approximately 4 hours after the arrival of the bus. No material has been placed on record to show that because of any deliberate or intentional act or omission of the petitioner-respondent fire took place in the bus in question.
9. Moreover, every act of negligence cannot be held to be misconduct unless it has direct bearing with the damage/loss suffered because of negligence and such damage or loss has been caused on account of wrongful intention and is not caused due to mere error of judgment. Where the alleged loss or damage is not directly attributable to the negligent discharge of duty of the delinquent employee, it cannot be held to be misconduct. The Hon'ble Single Judge rightly relying on the judgment of the Hon'ble Apex Court in the case of Union of India v. J. Ahmad , found that the negligence attributed to the petitioner cannot be regarded of such nature which has direct link or evidence with the damage caused to the Corporation and, therefore, found that the finding of the disciplinary authority based on no cogent material, is perverse and is based on surmises and conjectures.
10. Explaining the meaning of the word 'misconduct' the Hon'ble Apex Court in the case of Union of India and Ors. v. J. Ahmed (supra) has held as under: -
It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty.
Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur and Satubha K. Vaghela v. Moosa Raza (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -
Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik , in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India , the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.M. Kalyani v. Air France, Calcutta , wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd. (1978) 19 Guj LR 108 at p. 120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
11. Again in the case of State of Punjab and Ors. v. Ram Singh Ex-Constable the Hon'ble Apex Court has held as under: -
Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.
Misconduct in office has been defined as:
Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act.
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.
Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
12. Recently, explaining the term misconduct the Hon'ble Apex Court in the case of M.M. Malhotra v. Union of India and Ors. had observed as under: -
19. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edition) (at page 63) is "comprised positive acts and not mere neglects or failures". The definition of the work as given in Ballentine's Law Dictionary (148th Edition) is "A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.
13. In the present case, the allegation against the petitioner respondent is that he did not check the bus in question when it came to the Depot at 10.30 PM. The fire admittedly took place four hours after arrival of the bus, i.e. At about 2.20 AM. It is not disputed that when the bus was brought to depot by the driver it was attended by the petitioner-respondent and finding that the bus tyre of the bus were not available in Garh depot, he advised him to take help from Bareilly depot. There is nothing to show that the bus driver noticed anything exceptional with the condition of the tyre which may have caused some further damage and needs immediate attention. Thus, it is difficult to hold that the petitioner-respondent is guilty of misconduct of non-checking of the bus in question and his inaction or failure of duty was main cause for the fire in the bus, as a result of which the appellant suffered loss. Possibility of any other cause for catching fire in the bus can also not be ruled out in the absence of evidence showing otherwise. Thus, in the facts of the case and in view of the material on record, we do not find any reason to differ with the view taken by the Hon'ble Single Judge.
14. The appeal being devoid of merit, is hereby dismissed without any order as to costs.