Central Administrative Tribunal - Delhi
Shri Suresh Chand vs Delhi Transport Corporation on 23 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2637/2012 Order Reserved on: 08.05.2013 Order Pronounced on: 23.05.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Mr. Sudhir Kumar, Member (A) Shri Suresh Chand, Ex-Conductor, B. No.22210, House No, B-344, Gali No.2, Ashok Nagar, Mandoli Road, Shahdara, Delhi-110093. -Applicant (By Advocate: Shri Rajesh Srivastava) Versus Delhi Transport Corporation, Through its Chairman and its Managing Director DTC Headquarters IP Estate, New Delhi. -Respondent (By Advocate: Ms. Manisha Tyagi) O R D E R Honble Mr. Sudhir Kumar, Member (A):
The facts of this case lie in a brief compass. The applicant is aggrieved by the order of punishment dated 29.06.2011 (Annexure/A colly), removing him from the services of the respondent-Corporation, after the rejection of his appeal by the Competent Appellate Authority. He had earlier filed an OA No.3507/2011, challenging the order of his removal from service with the Corporation dated 19.08.2011. His Mercy Petition dated 23.12.2011, addressed to Chairman-cum-Managing Director of the Corporation, had also been rejected on 29.06.2011 (sic-2012). Later, on the basis of the above-cited order on his earlier OA No.3507/2011 dated 15.03.2012, a further speaking order has now been passed by the respondent-Authorities and communicated to him, which he has sought to assail through this OA, in view of the opportunity given to him by the Tribunal while disposing of his earlier OA. It seems that before passing this present impugned order, the applicant was also given a personal hearing on 09.05.2012 in regard to his representation.
2. On 18.06.2009 the applicant, a Conductor, was on duty on Bus route No.5513 from Delhi to Anup Shahar. At a place called Shibali after Buland Shahar, the respondent Corporations checking staff checked the bus and found that two passengers were travelling without ticket, who, on being asked, as reflected in the charge-sheet, had informed the checking staff that they had boarded the bus for going from Buland Shahar to Anup Shahar, and that they had given the full fare Rs.50/-, (i.e. Rs.25 for each passenger), but even after demanding the ticket, the Conductor had not issued them the tickets. As per the charge-sheet, on being confronted with the passengers, the applicant had accepted his mistake, and had issued unpunched tickets, two tickets of Rs.20/- each and two tickets of Rs.5/-each for the total amount of Rs.50/-.
3. As per page-18 of the paper-book (Annexure/D) even the applicant had himself admitted that the two passengers had just boarded his Bus, before the checking staff entered the bus, and that the checking staff had taken the handbook from his hands, and tore off the unpunched tickets, and had said that now they would give the passengers the tickets, and he had, therefore, prayed that he should be acquitted of the charge-sheet dated 10.07.1999 (sic-2009) issued to him. However, the respondent-Department instituted a formal disciplinary enquiry, and the enquiry was conducted, witnesses were examined, and the enquiry report was submitted thereafter. A copy of the enquiry report was furnished to the applicant through Annexure/H dated 14.06.2010, and the applicant was allowed to inspect the documents of reliance available on record, and to represent his case within 10 days. The applicant submitted his reply dated 19.07.2010 through Annexure/I, submitting that he had been given a letter proposing his removal from service in the cheating case, but since in his family there is no other earning member except him, and recently his father has also died, and that he has three small children who are school going, and besides because his wife is always ill, and due to his removal from service she remains in tension, he had prayed that instead of removing him from service, any other punishment may be imposed upon him, so that he may maintain his family and may be saved from starvation.
4. Four days later, on 23.07.2010, he followed up with another representation stating that checking workers had prepared his charge-sheet deliberately, in which they had made two bus passengers as witnesses, and during enquiry the two passengers were called after sending letters thrice but those witnesses did not come, and since without evidence no case can be decided, and since false and concocted allegations have been framed to convict an innocent person like him, he may be acquitted from the charges so that he may maintain his family. However, the Depot Manager had, through the above mentioned order dated 19.08.2010, ordered for the applicants removal from the respondent Corporation, which was challenged by him in the earlier OA also. He gave another representation against that on 1.9.2010, through Annexure/K, submitting that he had been serving the Corporation as Conductor since 1984, and his date of retirement is in 2018, and during the last 10 years of his service, from 1999 to 2009, there has been no adverse entry in his service record, and that the charge-sheet issued to him was false. He had also submitted that the enquiry was not conducted properly, and that against the principles of natural justice, he was not given a proper opportunity to defend himself and that even the alleged passengers from whom he had allegedly collected the fare were found to be fictitious, as they never appeared as witnesses, the allegations against him are totally unsubstantiated and frivolous, and he had requested for reconsideration of his case, and for being reinstated in service.
5. The applicant has challenged the impugned order on the ground that the appeal was dismissed by the Appellate Authority by a cryptic order, without assigning any reason, and without any application of mind, which is contrary to the ratio laid down by the Honble Apex Court in East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors. with K. Surekha vs. Mahadev Appa Rao & Ors. 2010 (7) SCC 678, Oryx Fisheries Private Limited vs. Union of India and Ors. 2010(13) SCC 427, North Delhi Power Limited vs. Govt. of National Capital Territory of Delhi & Ors. with BSES Rajdhani Power Limited & Anr. vs. Govt. of National Capital Territory of Delhi & Ors. 2010 (6) SCC 278; S.N. Mukherjee vs. Union of India 1990 (4) SCC 594; Kranti Associates Pvt. Ltd. & Anr. vs. Masood Ahmed Khan & Ors. 2010 (9) SCC 496, and Assistant Commissioner, Commercial Tax Department, ORKS Contract & Leasing, Kota vs. M/s Shukla & Brothers 2010 (4) SCC 785.
6. The applicant had further taken the ground that the order of dismissal has been passed by the respondents on the basis of the enquiry report without actually producing the relevant witnesses to prove their case against him, and further that the checking party had not followed the proper procedure at the time the surprise check was conducted, and that when the applicant had raised allegations of malafide against the checking party in writing, it was incumbent upon the Enquiry Officer to summon the independent witnesses. Applicant has also taken a ground that the Enquiry Officer, and the Disciplinary and Appellate authorities have not considered the case of the applicant on merits, and have passed the order, rejecting his appeal in a mechanical manner, which shows non-application of mind.
7. The applicant had further assailed the speaking order now passed by the respondent-Corporation, and had stated that it was not a speaking order, and had prayed for the following relief:
Set aside the orders dated 19.08.2010 and order dated Nil, by which the appeal of the applicant has been rejected.
AND ALSO Pass such other and further orders as this Honble Court deems fit and proper in the facts and circumstances of the case.
8. In their counter reply the respondents had stated the facts on the same lines, and it was further mentioned that even the past record of the applicant also showed that there were several entries, including a case of N.I.O.T. (non-issue of tickets), for which he had been awarded punishments in the past. It was also submitted that it appears that the applicant has been habitual to commit such type of irregularities deliberately, and that he was not handling the Corporations business honestly. It was further submitted that he was given full opportunity of hearing during the enquiry proceedings, and the enquiry was conducted in a proper and fair manner, and that this is a well settled principle of law that no passenger witness is required to prove the case against the applicant. It was submitted that it was wrong to state that the appeal of the applicant has been dismissed by the Appellate Authority by a cryptic order without assigning any reasons, and it was further submitted that the judgments cited by the applicant in support of his contentions in the grounds taken by him were not applicable, as the facts of the case are distinguishable in the case of the applicant. It was submitted that the Appellate Authority has given reasons for rejecting the appeal now, and that the Honble Apex Court and the Delhi High Court have also held in many cases that the passenger witness is not required to form a case against a delinquent employee of the Respondent-Corporation. It was submitted that he was given full opportunity to cross-examine the other prosecution witnesses, but he refused to ask any questions, and, therefore, it was prayed that the OA is without substance, and should be dismissed.
9. Applicant also filed a rejoinder, more or less reiterating his contentions as in the OA, and submitted that the Appellate Authority had failed to consider all the facts before passing the order, which is under challenge. He also submitted that serious lapses were conducted by the Vigilance Team which had conducted the raid, vitiating the whole proceedings, and violating the procedure to be followed, and in the absence of material witnesses having been examined, the punishment of removal from service could not be imposed upon him. It was, therefore, prayed that the OA be allowed, since the respondents have failed to give any reply to the specific grounds raised by the applicant, and they had not followed the procedure, as laid down in law.
10. Heard. During arguments the learned counsel for the applicant vehemently argued on facts as narrated in the OA and discussed above. Learned counsel for the applicant also took shelter behind the Delhi High Courts judgment in Delhi Transport Corporation v. Shri Pratap Singh dated 23.03.2007 (AIR 2007 Delhi 0) in which the observations of this Tribunal that non-checking of cash by the checking staff in violation of the mandate of the executive instructions dated 13.06.1996, and non-issuance of the challan in the prescribed proforma were fatal to the departmental proceedings has been upheld. In this judgment the Delhi High Court had observed as follows:-
This Court in the case of State of Haryana and Anr. v. Rattan Singh which is also a case arising out of non-issuance of ticket by a conductor held thus:
In a domestic inquiry all the strict and sophisticated rules of Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though 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 Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence " not in the sense of the technical rules governing court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.
xxxxxxxxxxxxxxx 3. Counsel for the petitioner has also submitted that the passengers who gave their statements were summoned during the enquiry proceedings but they did not appear and the petitioner DTC could not enforce the presence of the passengers. The counsel has also submitted that the workman had fully participated during the course of the enquiry proceedings and he himself had cross-examined the witnesses and at no stage he had insisted for the supply of the documents. On the other hand, counsel for the respondent has stated that the enquiry against the workman has not been conducted in accordance with the principles of natural justice as there was no corroboration of the evidence of an enquiry officer by any independent witness. He has also submitted that during the enquiry proceedings on 04.11.1991 he had requested for the supply of documents comprising of copy of way bill, copy of challan, copy of the statement of passengers with their addresses and vouchers blank and print ticket copies etc., but, none of these documents were supplied to the workman. Counsel for the respondent further submitted that the petitioner had failed to follow the mandatory procedure as laid down in Circular No. AdmI-3(1)/52 dated 29th July, 1954 and, therefore, the enquiry proceedings became bad and illegal. Clause (iv) of the said Executive instructions also mandates supply of copy of challan form to the conductor but, admittedly, no challan form was supplied to the workman in the present case. The workman in the present case had died during the pendency of the proceedings before the Labour Court, i.e., on 30.11.2001. Under these circumstances, the Labour Court had directed the Management to pay full back wages with consequential benefits from 24.04.1992 to 30.11.2001 to the respondent workman - widow of the deceased workman Smt. Angrejo Devi. The Tribunal in the impugned judgment has clearly held that the procedure adopted by the enquiry officer is unknown to the criminal jurisprudence and there has been a serious breach of the principles of natural justice. The deceased workman was a permanent employee of the petitioner management and the Tribunal had arrived at certain findings of facts, inter alia such as, the Management did not appoint any presenting officer and enquiry officer acted as a Judge as well as a prosecutor, enquiry officer did not record the statement of Raj Singh, T.I and Kanhaiyalal, T.I in the presence of workman, no summoning of 12 passengers as witnesses, although, the workman had expressed his intention to summon them, non-checking of cash by the checking staff in violation to the mandate of the executive instructions dated 13.06.1996 and non-issuance of the challan in the prescribed proforma. It would be relevant to reproduce the following observations from the impugned Award:
11. After hearing AR of the parties, I find that there is no dispute that the deceased workman was a permanent employee of the management. Admittedly on the file there is no letter appointing Shri. Sumeet Mudgal as the enquiry officer. Admittedly there is no letter on the file vide which the workman was intimated that Mr. Sumeet Mudgal has been appointed as Enquiry officer. It has been admitted by MW1 in his cross examination that before start of the enquiry proceedings the workman was not supplied the documents relied upon by the management. This is contrary to the principles of natural justice. In the present case, the management did not appoint any presenting officer and enquiry officer acted as a judge as well as prosecutor which is violative principles of natural justice. It will not be out of place to mention here that the enquiry officer did not record the statement of Raj Singh T.I. and Kanhaiyalal T.I. in the presence of workman. This procedure adopted by the enquiry officer is unknown to the criminal jurisprudence. It may be further submitted that the workman expressed his intention that all the 12 passengers be summoned as is mentioned at page 33 of enquiry proceedings Ex. WW1/7 in spite of said request made by the workman none of the 12 said passengers have been examined by the enquiry officer. The checking staff also did not check the cash as is mandatory vide circular dated 13.06.1996 the challan has also not been issued in the prescribed proforma annexure 'C' of the management. The above discussion leads may to believe that the enquiry has not been conducted in a fair and proper manner and is also violative of principles of natural justice.
4. Based on the said findings the Tribunal reached to the conclusion that the domestic enquiry conducted by the management was neither fair nor proper. It is no more res integra that the adequacy and reliability of the evidence, as led before the domestic enquiry, is not to be deeply probed into by the Tribunal and the case before the enquiry officer is also not to be proved beyond reasonable doubt like any criminal case. It is only the preponderance of probabilities and some evidence on record may be sufficient to prove charges against the delinquent employee. It is also well settled law that enquiry officer and disciplinary authority are the sole Judges of facts and due weightage should be given to the findings arrived at by the enquiry officer. However, in the present case the pre-dominant question is not that how the enquiry officer proceeded during the enquiry, but the vital question is whether there was a violation of principles of natural justice right at the very inception. It would be worthwhile to refer to the cross-examination of the witness produced by the management, who entered the witness box as MW-1. He in his cross-examination has stated as under:
There is no separate order of entrustment of this case to act as an Enquiry Officer in the present case. I have not supplied any documents to the workman concerned before starting the enquiry such as report of the inspecting officers, statement of passengers. It is correct that the workman had moved an application on 4.11.1991 to the Depot Manager for supplying certain documents. It is correct that no passenger was examined during the enquiry.
5. This admission on the part of the management witness in no uncertain terms clearly gives an indication that the management had seriously breached the principles of natural justice by withholding the documents although specifically demanded by the respondent workman vide his application dated 4th November, 1991. The non- examination of passengers during the enquiry may not in itself prove fatal to hold the enquiry as illegal, but to deny the delinquent workman copies of statement of passengers as recorded at the time of raid certainly is fatal and such an act on the part of the management is in clear breach of the principles of natural justice. The documents, which were admittedly in the possession of the petitioner management and formed basis of the chargesheet against the respondent workman have to be mandatorily supplied to the delinquent workman facing the charges. The delinquent employee, who is facing the charges must know as to what case he has to met with during the course of enquiry and the petitioner management in the present case has failed to give any explanation as to why the documents demanded by the respondent workman were not supplied to him. In a recent judgment of the Hon'ble Supreme Court reported in South Bengal State Transport Corporation v. Sapan Kumar Mitra and Ors. the issue before the Hon'ble Supreme Court was that whether the enquiry as held by the enquiry officer was bad and invalid in law as the documents relied by the enquiry officer neither feature in the list of documents annexed to the chargesheet nor the copies of the same were supplied to the delinquent employee. The Supreme Court after placing reliance on various judgments including Managing Director, ECIL v. B. Karunakar of the Constitution Bench made the following observations .................Not reproduced here.
(Emphasis supplied)
11. In his reply arguments, the learned counsel for the respondents relied upon the Delhi High Courts judgment in the case of Delhi Transport Corporation vs. Shree Kumar and Another 2004 V AD (DELHI) 597, to submit that it is not essential for the passengers necessarily to be produced as witnesses in such departmental enquiry. Para-11 of the judgment reads as follows:-
11. In the present case, there was evidence before the enquiry officer in the form of statements of the six passengers which were also signed by the respondent No. 1, the unpunched tickets and also the evidence of the checking staff. In my considered opinion, there being independent evidence like the evidence of the checking staff and unpunched tickets to link the respondent No. 1 with the charge levelled against him, the Tribunal did not appreciate the issues in the right perspective and on the basis of settled position of law and, therefore, it committed an error. The Tribunal also committed an error in holding that there was violation of the principles of natural justice in conducting the enquiry. I am also of the considered opinion that this is not a case where it could be said that there was violation of the principles of natural justice or where the enquiry was vitiated as was held by the Tribunal inasmuch as there was definitely legal evidence before the enquiry officer having nexus with the events that were being enquired into. The guilt of the respondent No. 1 was correctly established in the domestic enquiry proceedings and the Tribunal fell into an error in holding that the domestic enquiry was vitiated. In that view of the matter both the orders of the Tribunal are liable to be set aside.
(Emphasis supplied)
12. The learned counsel for the respondents also filed a copy of the fare sheet showing that the fare for the journeys from Buland Shahar to Anup Shahar was Rs.25/- per passenger, which was actually denied by the applicants counsel in the OA and in the pleadings earlier, but could not be met with, once the fare-table had been produced during the arguments.
13. Heard. We have given our anxious consideration to the facts of this case. As has been held by the Honble Apex Court in M/s Apparel Export Promotion Council Vs. A.K. Chopra : AIR 1999 SC 625, the adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court (and, by extrapolation, before this Tribunal), since the High Court (or this Tribunal) does not sit as an Appellate Authority over the factual findings recorded during the departmental proceedings, while exercising the power of judicial review. It was further laid down by the Honble Apex Court that the High Court cannot normally speaking substitute its own conclusion with regard to the guilt of the delinquent, for that of the departmental authorities. It was further laid down that judicial review is not directed against the decision of the administrative authorities, but is confined to the examination of the decision-making process only.
14. In the case of Chief Constable of the North Wales Police vs. Evans : (1982) 3 All E R 141, Lord Haltom observed as follows:-
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court.
15. In the case of Union of India vs. Sardar Bahadur : (1972) 4 SCC 618, it was held by the Honble Apex Court that it was not the function of the High court to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court (and, by extrapolation, before this Tribunal also).
16. In the case of Union of India vs. Parma Nanda (1989) SC 1185, the Honble Apex Court held to the effect that The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that. the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority..
(Emphasis supplied)
17. The ratio laid down by the Honble Apex Court in the case State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao: AIR 1963 SC 1723: (1964) 3 SCR 25 was as follows:-
7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.
(Emphasis supplied)
18. In the case State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya : (2011) 4 SCC 584 the Honble Apex Court has once again summarized its ratio in various cases as follows:-
7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463: 1997 SCC (L&S) 1806, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762: 1999 SCC (L&S) 1036, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416: 2000 SCC (L&S) 144.
(Emphasis supplied).
19. The same view has also been reiterated by the Honble Apex Court in the State Bank of India vs. Ram Lal Bhaskar & Anr. : 2012 (1) AISLJ 108 Full Bench judgment, stating in Para-8 as follows:-
8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct.
(Emphasis supplied)
20. In the similar/parallel case of punishment meted out to a Conductor for non-issuance of tickets, U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal : JT 2006 (12) SC 412, the Honble Apex Court has held as follows :-
7. Short question for our consideration in the present case is whether the punishment which has been modified by the learned Single Judge is justified or not? The learned Single Judge found that the punishment awarded in the present case is disproportionate to the guilt of the delinquent. So far as, the guilt of the petitioner is concerned, in the domestic enquiry it has been found that the petitioner is guilty of not issuing tickets to the twenty passengers and the same finding of the domestic enquiry has been upheld by the Labour Court & High Court. The petitioner was a conductor and holding the position of trust. If incumbent like the petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then this is a serious misconduct. It is unfortunate that the petitioner was appointed in 1988 and in the first year of service he started indulging in practice then what can be expected from him in the future. If this is the state of affair in the first year of service and if such persons are allowed to let off to the light punishment then this will be a wrong signal to the other persons similarly situated. Therefore, in such cases the incumbent should be weeded out as fast as possible and same has been upheld by the Labour Court. We are firmly of the view that such instances should not be dealt with lightly so as to pollute the atmosphere in the Corporation and other co-workers.
8. Normally, courts do not substitute the punishment unless they are shockingly disproportionate. If the punishment is interfered or substituted lightly in the punishment in exercise of their extraordinary jurisdiction then it will amount to abuse of the process of court. If such kind of misconduct is dealt with lightly and courts start substituting the lighter punishment in exercising the jurisdiction under Article 226 of the Constitution then it will give a wrong signal in the Society. All the State Road Transport Corporations in .the country have gone in red because of the misconduct of such kind of incumbents, therefore, it is the time that misconduct should be dealt with iron hands and not leniently.
(Emphasis supplied)
9. Learned counsel for the appellant invited our attention to a decision of this Court in the case of Regional Manager, U.P.S.R.T.C., Etawah & Ors. v. Hoti Lal & Anr., reported in [2003] 3 SCC 605 wherein, this Court has very categorically held that a mere statement that it is disproportionate would not suffice to substitute a lighter punishment. This Court held as under:
"The court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper."
10. In view of the above observation made by this Court there remains nothing more to be added.
11. Learned counsel tor the respondent has invited attention to a decision of this Court in the case of U.P. S.R.T.C.. & Ors. v. Manesh Kumar Mishra & Ors., reported in [2000] 3 SCC 450. In that case this Court in peculiar facts took lenient view of the matter and upheld the order of the High Court whereby the punishment of dismissal was found to be shockingly disproportionate and justified in interfering with the quantum of punishment and directing reinstatement as against dismissal. It was also a case of U.P. State Road Transport Corporation. Be that as it may, each case has its own peculiar facts but in the present case we are satisfied that the petitioner has been found squarely guilty of misconduct of not issuing tickets to the passengers as found in the domestic enquiry. The High Court also found that the inquiry is correct and the petitioner has been rightly found to be guilty but the learned Single Judge has substituted a lighter punishment. (Emphasis supplied)
21. The Honble Delhi High Court also has in the case Ct. Arvind Kumar v. GNCT of Delhi & Ors., 2010 (175) DLT 511 held on 01.11.2010 as follows:
19. Suffice would it be to state that even at a criminal trial, deficiencies during investigation are rendered meaningless, if otherwise the prosecution is able to sustain the indictment. Thus, even at a domestic inquiry, deficiencies in the investigation have to be ignored. We clarify that unless it is established that the deficiencies pertained to matters of serious consequences and if evidence relatable thereto was brought on record the innocence of the accused could have surfaced, only then the deficiencies have to be used for the benefit of the defence. This principle of law at a criminal trial is based on the requirement of law that at a criminal trial the prosecution must bring on record not only evidence which points towards the guilt of the accused but even rules out the innocence.
20. We have noted herein above that the Tribunal has relied upon the decision of the Supreme Court in Ratan Singh's case (supra). In said case it was observed by the Supreme Court that at a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act have no application and that all evidence which have a logical probative value for a prudent mind are admissible evidence and that there is no allergy to admitting hearsay evidence at a domestic inquiry provided it has reasonable nexus with the incident and is credible. The only caution is that one must be careful in evaluating such material and should not lead oneself into gullibly swallowing what is strictly speaking not rel evant and admissible evidence under the Indian Evidence Act.
21. Thus, we may say that fair-play is the basis at a domestic inquiry and only bias or surrender of independence of judgment vitiates the conclusions reached. The simple point would be whether there is enough material where from a logical and a prudent mind, dealing with the probative weight of evidence, conclude one way or the other.
22. In the instant case the applicant has not been able to pin point and prove as to whether any procedural irregularities had been committed by the respondents in the departmental enquiry conducted by them against him. Now, when in compliance of the previous orders of this Tribunal dated 15.03.2012 in his earlier OA No.3507/2011, the impugned speaking order has been passed, and that order takes into account the grievance of the applicant that non-production of the passenger witnesses amounts to fabrication of the case, and not receiving the challan, which were not raised by him during the course of the enquiry proceedings, he cannot now be allowed to raise those grounds in these proceedings, through his pleadings.
23. In view of the case law as cited above, particularly the Delhi High Court judgment in DTC vs. Shri Pratap Singh (supra), and the Honble Apex Courts judgments in U.P.S.R.T.C., Dehradun vs. Suresh Pal (supra) & Regional Manager, U.P.S.R.T.C, Etawah & Ors. vs. Hoti Lal & Anr. (supra), we find no basis to interfere with the findings of the Disciplinary Authority and the Appellate Authority. Therefore, the OA is dismissed, but there shall be no order as to costs, (Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.