Allahabad High Court
State Of U.P. And Another vs Bharat Ratna Ashok And Another on 10 July, 2013
Bench: Rakesh Tiwari, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 21 Case :- WRIT - A No. - 54564 of 2006 Petitioner :- State Of U.P. And Another Respondent :- Bharat Ratna Ashok And Another Counsel for Petitioner :- P.B. Pradhan,R.B. Pradhan,S.C.,Subhash Rathi Counsel for Respondent :- Vishwaratna Dwivedi,Alhilesh Kr. Pandey,Chandan Sharma,S.C. Hon'ble Rakesh Tiwari,J.
Hon'ble Bharat Bhushan,J.
(1) Heard Sri C.K. Rai, learned standing counsel for the petitioners and Sri Chandan Sharma, learned counsel for respondents.
(2) The petitioners have preferred this writ petition challenging the validity and correctness of the order dated 20.12.2005 passed by the State Public Services Tribunal, Lucknow (hereinafter referred to as Tribunal), whereby Claim Petition No. 1931 of 1998 of respondent no. 1 was allowed, quashing impugned punishment order dated 2.8.1993 and appellate order dated 5.2.1997. By the order dated 20.12.2005, respondent no. 1 was declared entitled for consequential service benefits admissible to him under the Rules.
(3) Petitioners have stated that respondent no. 1 Sri Bharat Ratna Ashok was working in district Etawah as Excise Inspector. During the relevant period, arrested one Ram Das Gupta under Section 15 of Narcotic Drugs and Psychotropic Substances Act (In short NDPS Act) for possession of 32 kgs of poppy straw. He unauthorizedly released him on bail. The sample of recovered article was also taken in contravention of statutory provisions of NDPS Act and rules framed therein.
(4) Respondent no. 1 was placed under suspension by means of an order dated 23.2.1993 and an inquiry was instituted. Initially charges were framed on two counts but later on a supplementary charge was also added against the delinquent employee. An inquiry was conducted against the respondent no. 1. After conducting the inquiry in accordance with principles of natural justice, a detailed inquiry report dated 16.6.1993 was submitted exonerating respondent no. 1 from the charges. The then Excise Commissioner/punishing authority did not agree with the conclusions of the inquiry officer as in his opinion charge nos. 1 and 2 were proved against the respondent no. 1. However, he agreed with the conclusion of inquiry officer with regard to the charge no. 3 that it could not be proved against the delinquent officer, consequently a show cause notice dated 14.7.1993 was issued to the petitioner and after considering all material on record following two punishments were imposed on respondent no. 1:-
vr,o Jh Hkkjr jRu v'kksd ds fo:) vkjksi la[;k 1 iw.kZr;k fl) ikrk gwWA bl xEHkhj fu;eksYya?k ds fy, bUgsa fuEufyf[kr n.M fn;s tkus dk vkns'k nsrk gwW%& 1& Jh Hkkjr jRu v'kksd dks rhu o"kksZ ds fy, vkcdkjh fujh{kd in ds osrueku 1400&2600 ds ewy osru 1400@& ij izR;kofrZr fd;k tkrk gSA bl vof/k esa budks dksbZ osru o`f) ns; ugh gksxhA rhu o"kZ ckn Jh v'kksd dks ogh osru ns; gksxk tks bl vkns'k dh frfFk ds iwoZ ik jgs FksA 2& Jh v'kksd dh pfj= iaftdk esa fuEukafdr HkRlZukRed izfof"V vafdr dh tk; %& Jh Hkkjr jRu v'kksd us fnukWd 1&2&93 dks jkenkl iq= j?kquUnu yky tkfr xqIrk fuoklh yksgke.Mh Fkkuk fc/kwuk tuin bVkok dks 32 fdyks xzke voS/k iksLr r`.k lfgr /kkjk 15 ,u0Mh0ih0,l0 ,DV ds vUrxZr fxjQ~rkj fd;k ijUrq ,u0Mh0ih0,l0 ih0,l0 ,DV dh /kkjk 37 ds izkfo/kkuksa dk vfrdze.k djds Jh v'kksd }kjk vfHk;qDr jkenkl mijksDr dks tekur ij fjgk dj fn;k x;kA A ,slk djds Jh v'kksd us vf/kfu;e ds izkfo/kkuksa dk mYya?ku rFkk drZC;ksa dh vogsyuk djus ,oa lafnX/k vkpj.k dk ifjp; fn;k gS ftlds fy, mudh ?kksj HkRlZuk dh tkrh gSA lEiw.kZ izdj.k esa budh lR;fu"Bk lafnX/k ik;h tkrh gSA (5) Respondent no.1 preferred a departmental appeal on 10.11.1993 which on consideration by the then Special Secretary, State of Uttar Pradesh as Appellate authority deleted the punishment no. 2 vide his order dated 5.2.1997, but did not pass any order regarding punishment no. 1 reverting respondent no. 1 to his basic pay of Rs.1400 in pay scale of Rs.1400-2600 for a period of three years.
(6) The relevant extract of order of appellate authority reads:-
2- ^^ bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd Hkkjr jRu v'kksd] vkcdkjh fujh{kd {ks=&izFke bVkok ds izR;kosnu@vihy fnukWd 15&9&97] 7&10&97 o iwoZ izR;kosnu@vihy ij fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd vihydrkZ }kjk vfHk;qDr dks tekur ij NksM+us dk vf/kdkj ugha FkkA ijUrq vihydrkZ ds le{k tks ifjfLFkfr;kW fo|eku Fkh tSls fd vfHk;qDr jkenkl ds iq= }kjk fnukWd 1&2&93 dks izLrqr izkFkZuk&i= esa mfYyf[kr ;g rF; fd mldk firk g`n; jksx ls ihfM+r gS] ;g fd mlds ?kj esa 22 o"khZ; dqekjh Nk;k dk vkdfLed fu/ku gks x;k gS bR;kfn ,sls rF; gSa fd dksbZ vugksuh ?kVuk u ?kV tk; ftl gsrq mls mRrjnk;h gksuk iM+s ftlls vihydrkZ }kjk vfHk;qDr dks NksM+ fn;k x;k rFkk mDr okn dks izFke vij U;k;/kh'k] bVkok us vius fu.kZ; fnukWd 14&10&97 esa pyus ;ksX; ugha ik;kA vr% vk;qDrky; ds n.Mkns'k fnukWd 2&8&93 }kjk iznRr ds fuEufyf[kr va'k dks foyqIr fd;s tkus dk fu.kZ; fy;k x;k gS%& Jh v'kksd dh pfj+= iaftdk esa fuEufyf[kr HkRlZukRed izfof"V vafdr dh tk;%& Jh Hkkjr jRu v'kksd us fnukWd 1&2&93 dks jkenkl iq= j?kquUnu yky tkfr xqIrk fuoklh yksgke.Mh Fkkuk fo/kwuk tuin bVkok dks 32 fdyksxzke voS/k iksLr&r`.k lfgr /kkjk&15 ,u0Mh0ih0,l0,DV ds vUrxZr fxjQ~rkj fd;k ijUrq ,u0Mh0ih0,l0,DV dh /kkjk&37 ds izkfo/kkuksa dk vfrdze.k djds Jh v'kksd }kjk vfHk;qDr jkenkl mijksDr dks tekur ij fjgk dj fn;k x;kA ,slk djds Jh v'kksd us vf/kfu;e ds izkfo/kkuksa dk mYya?ku rFkk drZC;ksa dh vogsyuk djus ,oa lafnX/k vkpj.k dk ifjp; fn;k gS] ftlds fy, budh ?kksj HkRlZuk dh tkrh gSA lEiw.kZ izdj.k esa budh lR;fu"Bk lafnX/k ik;h tkrh gSA^^ (7) Aggrieved by the order dated 5.2.1997 aforesaid, respondent no. 1 preferred a claim petition no. 1931 of 1998 before the State Public Services Tribunal, Lucknow which allowed the petition of respondent no. 1 holding:-
"....The appellate authority did not mention anything about other part of the punishment order as to why it was not quashed. During the course of argument, the concerned departmental file was summoned and perused by this court and it was revealed that there is a mention for quashing the entire order. Therefore, in our view, the impugned punishment order as well as appellate order was highly arbitrary and illegal. The punishment order should have been quashed in toto not in part, therefore, in our opinion the impugned punishment order as well as the appellate order are liable to be quashed. There is enough force in the claim petition and it deserves to be allowed."
(8) In the circumstances, the petitioners have preferred the present writ petition challenging the order dated 20.12.2005 as stated above.
(9) The case of respondent no. 1 in his counter affidavit is that he had indeed arrested one Ram Das for possession of poppy straw whom he had released on bail. He has justified the grant of bail to him saying that he conducted raid at the house of Ram Das pursuant to an information received by him but no incriminating material was recovered from his house; that search party came out of the house and searched nearby open space and it was there that was accessible to all, 32kgs. poppy straw was recovered for which Ram Das was arrested. However, considering the physical condition of Ram Das and the fact that his 22 years old daughter had died, he was enlarged on bail on the request of his son.
(10) Counsel for respondent no. 1, Bharat Ratna Ashok submits that a detailed inquiry was conducted in which he was exonerated on all three counts of charges and that subsequent to investigation, no charge sheet was filed against the accused Ram Das in NDPS case hence on the recommendation of District Government Counsel (Criminal) a final report was submitted in the trial court. Respondent no. 1 also claimed that competent authority punished him despite his exoneration by inquiry officer eventhough no additional material was available on record before the competent authority and entire exercise subsequent to show cause notice was, therefore, arbitrary, mala fide and illegal. He has drawn the attention of this Court to letter dated 1.5.1998 written by Excise Commissioner to the Principal Secretary (excise) recommending complete exoneration of respondent no. 1 who had also brought on record the notings of departmental file relating to this dispute from Excise Department obtained by him under the Right to Information Act.
(11) The petitioners have disputed the claims of the respondent stating that departmental appeal was partly allowed whereby censure entries were deleted from his record but his punishment by which respondent no. 1 had been reverted to his basic grade of Rs.1400 in the pay scale of Rs.1400-2600/- for three years continued to be in existence. It appears that the disciplinary authority had imposed two punishments on the delinquent employee. First part of the punishment relates to the reversion of petitioner at basic pay for three years. The appellate authority considered the mitigating circumstances and ordered deletion of second punishment of censure entries from the record of the delinquent employee, however the appellate authority did not accept his representation in so far as first part of punishment order is concerned whereby the employee had been reverted to the basic pay for three years.
(12) Tribunal on judicial review does not hear appeal from the decision but reviews the manner in which the decision is made. It is duty of Tribunal to ensure that delinquent employee receives fair treatment and inquiry on the charges of misconduct is conducted by observing principles of natural justice and prevailing rules. Tribunal should also be concerned whether findings and conclusion are based on some evidence and whether the authority conducting the inquiry, had jurisdiction to conduct such inquiry. Sufficiency of evidence and reliability of evidence is not within the domain of Tribunal. When the competent authority accepts the evidence and comes to a reasonable conclusion, that conclusion cannot be disturbed merely on the whims and fancies of Tribunal. Ordinarily, the disciplinary authority is a sole judge of facts. Appellate authority also has co-extensive power to re-appreciate the evidence or the nature of punishment. But the Tribunal cannot re-appreciate evidence and come to its own independent finding. It can only interfere where it appears to it that the delinquent employee has been dealt in a manner inconsistent with the principles of natural justice or in violation of statutory rules prescribed in the manner an inquiry is to be proceeded with or where the conclusions are based on no evidence, but cannot interfere merely on the ground that in its opinion punishment should be different.
(13) However, if the punishment is based on some evidence, then the Tribunal is prohibited from interfering merely because in its opinion the punishment is either excessive or disproportionate to the misconduct unless punishment is mala fide or perverse.
(14) Hon'ble Apex Court in State of T.N. Vs. Thiru K.V. Perumal and others (1996) 5 Supreme Court Cases 474, has held that it is not the province of Tribunal to go into the truth or otherwise of charges and that Tribunal is not appellate authority over the departmental authority in disciplinary proceedings. The Hon'ble Apex Court has held thus:
"So far as the fourth ground is concerned it has been repeatedly held by this Court that it is not the province of the Tribunal to go into the truth or otherwise of the charges and that the Tribunal is not an appellate authority over the departmental authorities. Accordingly the Tribunal must be held to have exceeded its jurisdiction in entering upon a discussion without the charges are established on the material available. The fourth ground also thus disappears. Now remained only the third ground viz., the non-furnishing of the documents asked for by the respondent. The Tribunal seems to be under the impression that the enquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent Officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/employee. In this came the respondent had asked for certain documents. The Registered to whom the request was made called upon him to specify the relevance of each and every document asked for by him. It is not brought to out notice that the respondent did so. The Tribunal too has not gone into the question nor has it expressed any opinion whether the documents asked for were indeed relevant and whether their non-supply has prejudiced the respondent case. The test to be applied in this behalf has been set out by this Court in State Bank of Patiala v. S.K.Sharma [1996 (3) SCALE 202]. It was the duty of the respondent to point out how each and every document was relevant to the charges or to the enquiry being held against him and whether and how their non-supply has prejudiced his case. Equally it is the duty of the Tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the defendant's case. Since this has not been done the Tribunal in this matters it has to go back for a rehearing."
Similarly the Apex Court in High Court of Judicature At Bombay through its Registrar Vs. Shashikant S. Patil and another (2000) 1 SCC 416 has held thus:
The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
In State of Andhra Pradesh v. S. Sree Rama Rao , this Court has stated so and further observed thus:
The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding 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. Whether 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 above position has been reiterated by this Court in subsequent decisions. One of them is B.C. Chaturvedi v. Union of India .
The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the Inquiry Officer it is imperative to discuss the materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer's report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the view expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer." Otherwise the position of the disciplinary authority would get relegated to a subordinate level.
Legal position on that score has been stated by this Court in A.N. D' Sitva v. Union of India [1962] Suppl. 1 SCR 968, that neither the findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, Union of India v. H.C. Gael. . The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report." Their Lordships laid down the following principle:
"If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf."
(15) In the instant case, the competent authority awarded two punishments. Both punishments cannot by any stretch of imagination be called excessive or disproportionate to the proved misconduct. There was reasonable amount of evidence on record. It is pertinent to point out that appellate authority did not conclude that charges were wrong or inquiry was conducted in an unfair manner. The appellate authority considered the mitigating circumstances and in its wisdom deleted the censure entries from service book of the delinquent employee but did not, interfere with the first part of punishment i.e. reversion of respondent no. 1 to the basic pay for three years.
(16) The Tribunal after reappraisal of evidence, in its wisdom concluded that mitigating circumstances were sufficient to quash the entire punishment order. It appears that during the course of hearing, the departmental file was summoned and the same was perused by the Tribunal. It revealed some notings on the file recommending quashing of the entire punishment order.
(17) Apparently, there was some noting on the file which recommended quashing of entire punishment order but that by itself was not sufficient to quash the order of appellate authority. The respondent no. 1 has submitted certain parts of that file with supplementary affidavit. The competent authority chose to pass the deletion of censure entries only and no order was finally passed to set aside the first part of punishment. The order of competent authority cannot be interfered merely because somebody at some stage chose to make a noting that entire punishment should be quashed. The Tribunal was concerned only with the final order passed by the appellate authority.
(18) We have carefully examined the order of Tribunal. In our opinion, it is not legally sustainable for all the aforesaid reasons. In the circumstances, the order impugned dated 20.12.2005 passed by the State Public Services Tribunal is accordingly set aside.
(19) The writ petition is allowed. No order as to cost.
Order Date :- 10.7.2013 Meenu