Himachal Pradesh High Court
Ke-Behar vs Presiding Officer on 5 May, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 5th DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 3116 OF
2019
Between:-
RAMESH KUMAR, S/O LATE SH.
ROOP RAM, R/O VILLAGE RUPE-
KE-BEHAR, P.O. BATHALANG,
TEHSIL ARKI, DISTRICT SOLAN,
H.P.
...PETITIONER
(BY SH. R. L. CHAUDHARY, ADVOCATE)
AND
1. HIMACHAL ROAD TRANSPORT
CORPORATION, ISBT, SHIMLA-
171 004, THROUGH ITS
MANAGING DIRECTOR.
2. DIVISONAL MANAGER,
HIMACHAL ROAD TRANSPORT
CORPORATION, SHIMLA.
3. DEPUTY DIVISIONAL MANAGER,
HIMACHAL ROAD TRANSPORT
CORPORATION, NAHAN,
DISTRICT SIRMOUR, H.P.
4. REGIONAL MANAGER
(ENQUIRY), HIMACHAL ROAD
TRANSPORT CORPORATION,
NAHAN, DISTRICT SIRMOUR,
H.P.
...RESPONDENTS
(SH. SHYAM SINGH CHAUHAN,
ADVOCATE)
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2
This petition coming on for orders this day, the Court passed the
following:-
.
ORDER
The instant petition has been filed for the grant of following substantive reliefs:-
i) That writ in the nature of certiorari may kindly be issued to quash and set aside the impugned orders Annexure P-1 dated 22.06.1994, P-3 dated 12.01.1995, P-8 dated 26.06.1995 and Annexure P- 13 dated 07.09.2011, since from last 18 years, no speaking/reasoned order has been passed in the appeal of the petitioner by the respondent No. 1 which is not sustainable in the eyes of law, more particularly, in light of the judgment passed by this Hon'ble Court as per Annexure P-11 whereby the respondent No. 1 was directed to decide the appeal afresh or to supply the earlier order passed in the appeal, but the respondent No. 1 neither decided the appeal afresh nor supplied the earlier order.
ii) That writ in the nature of mandamus may kindly be issued, directing the respondents to re-instate the petitioner in service with all consequential benefits such as arrears of pay revised from time to time alongwith interest, seniority, promotion and all other allied service benefits.
2. The petitioner was initially engaged as a Conductor on daily wage basis by the respondents-Corporation on ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 3 14.07.1983 and later his services came to be regularised on 10.03.1984.
.
3. On 29.07.1991, the petitioner was charges-sheeted by the respondents-Corporation under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965. Thereafter, a regular inquiry was conducted by the respondents-Corporation and on completion thereof, the Disciplinary Authority on 10.02.1994 issued a Show Cause Notice to the petitioner calling upon the petitioner to file reply within 15 days as to why major penalty under Conduct Rules should not be imposed upon the petitioner.
4. Finding the reply to be not satisfactory, the respondents-Corporation ordered the removal of the petitioner from service w.e.f. 23.06.1994.
5. The appeal preferred by the petitioner against the order of removal was rejected by respondent No. 2 Divisional Manager on 12.06.1995, constraining the petitioner to file an appeal before respondent No. 1, i.e. Managing Director but the same was also rejected without passing a speaking order.
6. The petitioner thereafter preferred CWP No. 796 of 2010 and this Court vide order dated 17.05.2011, allowed the petition and directed the respondents to decide the appeal afresh within three months.
::: Downloaded on - 10/05/2022 20:04:31 :::CIS 47. Respondent No. 1 accordingly decided and again rejected the appeal, constraining the petitioner to file the instant .
petition.
8. It is vehemently argued by Shri R. L. Chaudhary, learned Advocate, that the penalty of removal imposed upon the petitioner is disproportionate and even otherwise the charges that were framed against the petitioner have not been proved.
9. On the other hand, Shri Shyam Singh Chauhan, learned Advocate, would argue that no interference is warranted in the instant case as the petitioner has been found to have misappropriated a sum of Rs. 10,998/- and the said finding of facts should not be interfered with. It is further argued that the respondent can ill-afford the services of the Conductors like the petitioner, who embezzle the amount of the Corporation and put it to a loss.
10. At the outset, it needs to be observed that in the context of employment as Conductor in the Corporation and the duties and functions attached to the post of Conductor, the quantum of embezzlement or misappropriation cannot be a relevant consideration. There is absolutely no scope for any conductor to misappropriate the revenues of the Corporation in hundreds or thousands at a time. When a check is exercised on a particular day and at a particular stage, the checking officials ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 5 may only detect the ticket and cash irregularities committed by the conductor within the few stages preceding the stage at which .
the check is exercised. Such detection may reveal misappropriation of few rupees only. What is, therefore, material and relevant is whether the complained act of conductor reflects a propensity to be corrupt and dishonest. If the conductor's conduct reflects such objectionable trait, then it can reasonably dishonest.
r If the be expected that he would translate this propensity to be corrupt and conductor's conduct objectionable trait, then it can reasonably be expected that he reflect such would translate this propensity to be corrupt into an act whenever and wherever he gets an opportunity to do so and thereby causing heavy losses to the Corporation. It is not that a watch-dog or a checking official accompanies every conductor at all times and all places during his service.
11. As observed above, in such cases, it is not the quantum of money, which could constitute the gravamen of the charge of misappropriation against the bus conductor. The quantum of such cases is bound to be insignificant. What is relevant is the frame of mind of the conductor leading to a wrongful loss to the Corporation and wrongful gain for himself, which itself is sufficient to record a finding of guilt against the bus conductor in a State owned Transport Corporation. From the ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 6 Corporation perspective and view, the defalcation would run into several thousand rupees is the misconduct committed by several .
hundreds of conductors every day. Therefore, if an individual conductor is let free on the ground that the quantum of money was small, and if such lenient view is taken in case of all conductors indulging into such malpractices, it would tend to destroy the economical backbone of the Corporation. It is, therefore, this factor, which is required to be borne in mind when the Court is confronted with such situation. The insignificance of the amount can in such cases by no means be taken as the yardstick for measuring the gravity of the misconduct. Day in and day out, the Court is confronted with such cases of defaults committed by bus conductors, which individual case may be small, but would suddenly expand into a formidable sum if such misconduct of other conductors indulging into the same misconduct is taken into consideration.
12. A Division Bench of the Andhra Pradesh High Court in P. Maheshwar Rao vs. Presiding Officer, Labour Court (1998) 3 ALD 156, laid down the following guidelines so as to serve as uniform pattern to be followed in all such cases:-
"(1) In a case where the bus fare is collected from a passenger by the bus conductor without issuing the ticket instantly, the magnitude of the amount involved shall not be treated as rendering any yardstick for determining the gravity of the mis-conduct. Such mis-conduct is a mis-::: Downloaded on - 10/05/2022 20:04:31 :::CIS 7
conduct per se which is serious eventually leading to the cracking of the economic backbone of the Transport .
Corporation;
(2) No lenient view need be taken in such cases. The punishment as may be provided in the Rules and Regulations of the Transport Corporation should be strictly construed without being influenced by the principles of punishment to be commensurate with the gravity of the mis-conduct;
(3) The bus having been crowded much exceeding its capacity can also not be treated as rendering any justification in cases where the conductor has already collected the bus fare and has not issued the ticket;
(4) Once fare is collected, the conductor is bound to issue the ticket. It is a different situation altogether if the conductor is unable to collect the fare and unable to issue the ticket to a passenger in view of heavy crowd in the bus. In fact the nature of such misconduct is different from the misconduct of collecting the fare and not issuing the ticket. The rule of "issue and start" will apply in such cases and the charge, if levelled, has to be viewed from that angle;
(5) Closing the SR without issuing ticket to a passenger from whom the bus fare has already been collected is a deliberate act of mis-conduct on part of the bus conductor, leaving no scope for any presumption other than the presumption that the delinquent had a dishonest intention of causing wrongful loss to the Corporation and wrongful gain for himself Such mis-conduct should be viewed strictly and no interference need be made by the Court of law if the quantum of punishment imposed is in accordance with the disciplinary Rules of the Corporation for that purpose. It is a clear manifestation of the ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 8 dishonest intention of the delinquent and no leniency could be shown to the culprit; and .
(6) The defence, if taken by the delinquent that he was about to issue the ticket when the inspecting party raided the bus could also not be treated as a remitting factor unless the margin of time when the bus fare was collected on one hand and the time when the raiding party raided the bus on the other was very narrow."
13. Even otherwise normally whenever the charges of
14.
r to embezzlement stands proved, no other punishment other than dismissal can be awarded.
In Ruston and Hornsby (I) Ltd. vs. T. B. Kadam, AIR 1975 SC 2025, the workman faced the charge of suspected dishonesty in connection with company's property. The Hon'ble Supreme Court held that the workman 'being a watchman, the charge is serious one and if it was held proved he deserves nothing short of dismissal.
15. At this stage, I may also refer to the judgment of the Hon'ble Supreme Court in U.P. State Road Transport Corp. vs Gopal Shukla 2015 (17) SC 603, where the respondent-Conductor who was in service with U. P. State Road Transport Corporation was found to have carrying 25 passengers without ticket, which caused financial loss to the Corporation.
The High Court vide impugned order had concurred with the view of the Labour Court that since it was not proved that the ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 9 respondent has taken fare from the passengers and not issued tickets to them, the allegations of .
embezzlement/corruption/personal gain were not established and consequently ordered the substitution of punishment of dismissal with stoppage of two annual increments with cumulative effect.
16. However, reversing these judgments, the Hon'ble Supreme Court held that the findings given by the Labour Court that there was no personal gain was imaginary and reveal some kind of unacceptable theoretical perceptions. It is further held that mere fact that the non recovery of the amount did not mean that there was no personal gain. In such situation, question of reinstatement or give another chance did not arise. Since, the respondent therein occupied position that requires trust and confidence he was expected to behave with discipline, loyalty and also maintain the fiscal sanctity. Thus, the Court erred in imposing lesser punishment and accordingly the order of dismissal passed by the Corporation was restored.
17. It is apt to reproduce the relevant observations as contained in paras 13 to 26 of the judgment read as under:-
13. When such a power is conferred on the Labour Court, it is obligatory on it to record satisfaction that the order of dismissal was not justified and thereafter proceeded to award a lesser punishment in lieu of discharge or dismissal. The thrust of the matter is whether the present ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 10 case was one where a lenient attitude was required to be shown by the Labour Court and the High Court. In this .
context, Mr. Mishra has commended us to a two Judge Bench decision in U.P. State Road Transport Corporation vs. Suresh Chand Sharma (2010) 6 SCC 555.
14. In the said case, a contention was raised that an embezzlement of petty sum did not warrant the punishment of dismissal. Negativing the said submission, the Court opined:-
r to "21. We do not find any force in the submissions made by Dr. J.N. Dubey, learned Senior counsel for the employee that for embezzlement of such a petty amount, punishment of dismissal could not be justified for the reason that it is not the amount embezzled by a delinquent employee but the mens rea to misappropriate the public money.
22. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors.4, this Court held as under:-
"In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."
Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v.. T.B. Kadam (1976) 3 SCC 71, U.P. State Road Transport Corporation v.. Basudeo Chaudhary & Anr. (1997) 11 SCC 370, Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) & Ors. v.. Secretary, Sahakari ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 11 Noukarara Sangha & Ors. (2000) 7 SCC 517, Karnataka State Road Transport Corporation v. B.S. .
Hullikatti (2001) 2 SCC 574, and Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma (2002) 10 SCC 330.
23. In NEKRTC v. H. Amaresh10, and UPSRTC v. Vinod Kumar11, this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal."
15. In the instant case, as accepted by the Labour Court, the first respondent was carrying 25 passengers without tickets which has caused financial loss to the Corporation.
That apart, the workman had also violated the postulates under the Rule and committed misconduct. Two aspects are absolutely clear. It is established that 25 passengers were allowed to enter into the bus. There is no material on record that they had entered inside the bus by application of any kind of force. On the contrary, the finding that has been recorded clearly establishes that they were travelling in the bus without ticket. The Labour Court, while recording such a finding, has been guided by the observations of this Court that justice must be tampered with mercy and the erring workman should be given an opportunity to reform himself and to prove to be a loyal and AIR 2001 SC 930 (2002) 10 SCC 330 AIR 2006 SC 2730 (2008) 1 SCC 115 Reportable disciplined employee. The said observations have been reproduced from Scooter India Ltd. Lucknow v. Labour Court, Lucknow and Anr. (1989) Sup. (1) SCC 31.
16.The said decision was rendered in the context of a workman having an ideology and behaving in a different ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 12 manner which bordered on rudeness with the management. There was no allegation of the present .
nature and, therefore, we really fail to fathom how the said observations could have been applied to a case of this magnitude when approximately half of the passengers travelled without ticket and the first respondent was performing the duties of a Conductor. The loss caused to the Corporation cannot be marginalized. In such a situation the question of reformation and to make him disciplined or giving him another chance, in our considered opinion, does not arise.
17. The Conductor holds the post of trust under the Corporation. It is extremely difficult on the part of the checking authorities to check in a constant manner. An employee holding the post that requires trust and confidence is expected to behave with discipline, loyalty and also maintain the fiscal sanctity. He should not allow anything to creep in which would make him a person of questionable integrity.
18. When the first three charges were treated to have been established by adducing cogent evidence, neither the Labour Court nor the High Court should have been guided by the sense of mercy and direct reinstatement.
The motive of the respondent from the act is inherent. When such kind of indiscipline causes financial loss to the Corporation, adequate punishment has to be imposed and in our view such misconduct does not stand on a lesser footing than embezzlement or corruption and more importantly results in loss of faith and breaches the trust. We must not forget the fundamental duty and work. A number of persons had been allowed to travel in the bus, without paying fare as if the fare was paid, the same was pocketed. That apart, the violation of the Rules and the ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 13 manner in which he has dealt with the Assistant Traffic Inspector should have been seriously viewed.
.
19. Presently, we shall deal with the issue whether the Labour Court is justified in its reasoning that the charge of personal gain has not been proved. The reasoning ascribed by the Labour Court, we must say, is absolutely perverse. It reads as follows:-
"In chargesheet Exht. W/1 it has been stated that the petitioner was carrying 25 passengers for his personal gains and being involved in planned corruption he has caused financial loss to the corporation. On behalf of employer no such reliable evidence has been given from which it could be proved that the petitioner had recovered money from alleged without ticket passengers. It is not the contention of the Inspector that they had checked the bag available with the workman and cash more than the cash for which ticket have been issued, was available with the petitioner. Inspector Mohd. Khalil Khan in his statement has stated "after recording comments on the waybill, the same was given to the conductor for his signatures as a proof of incident but the conductor has folded and kept it with him and has not returned it to me. Besides this he had instigated the passengers against the conductor then they will make miserable for me to live in the area".
In normal course, if the petitioner workman would have taken fare of tickets from passenger and would not have issued tickets to them, then the passengers would have complained to the Inspectors that petitioner workman in spite of taking money has not ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 14 issued ticket to them. It does not appear believable that without tickets passengers have taken the side .
of conductor and threatened the Inspector that if they will make any complaint against the conductor, they will make it miserable for them to live in the area. It has come in evidence that the inspectors have not recovered 10 times of the fare from without ticket passengers or Rs.500/- as compounding fee. I understand that by not recovering compounding fee from the without ticket passengers, it will motivate the passengers to travel without ticket. If the passengers apprehend that their checking can be done and 10 times fare can be recovered from them, then certainly they will take ticket and if the conductor does not issue ticket despite recovery of fare, then they will compel the conductor to issue tickets otherwise they have to pay a very large amount in case of checking. Thus the inspectors are also not less guilty for the irregularity of carrying without ticket passengers. If this fact of the inspectors is correct that 25 without ticket passengers have been found in petitioner's bus even then there is no proof of this fact that the petitioner workman had recovered the fare from them and wanted to misappropriate the same. In the circumstances of the case, I understand that the punishment of dismissal awarded to the petitioner is somewhat severe."
20. On a mere glance at the said reasons, it is quite vivid the reasons are really imaginary and reveal some kind of unacceptable theoretical perceptions by the Labour Court. The conduct of the conductor would clearly show that the factum of personal gain was established. The reason given that the passengers would have complained ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 15 and they would not have taken the side of the conductor and would have made a complaint against the conductor .
are not based on any evidence, but are eloquently expressed by innate creativity of the Labour Court.
21. As the factual matrix reveals, there could not have been any recovery. The non-recovery of the amount does not mean that there was no personal gain to the conductor or concealing of corruption for personal gains by lodging a report with the police regarding misplacing of way bill by the employee. Needless to emphasise the said charge has been proven in the domestic enquiry. The Labour Court has not really dislodged that finding. It has really proceeded in a mercurial manner and adverted to the issue of misappropriation. It has remained wholly oblivious to the facts that conductor had allowed 25 passengers to travel without ticket; that by virtue of the said act, the Corporation had sustained loss; that he had mischievously lodged an FIR at the police station regarding misplacing of waybill by him; that his conduct manifestly shows his involvement for personal gain, and that the eventual act was to conceal the corruption which was rooted in his personal gain. The finding recorded by the Labour Court on this score is absolutely perverse and the High Court has repeated the reasons and concurred with the conclusion.
22. Thus, the irresistible conclusion has to be that the charge pertaining to personal gain has been proved. We may clearly state that the contrary conclusion would tantamount to ignoring the obvious and, in a way, treating the pinchbeck to be real. Though there is concurrent finding of fact, but the approach being manifestly perverse, the same can be interfered with in exercise of power under Article 136 of the Constitution. It ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 16 has been so held in Alamelu v. State (2011) 2 SCC 385, Heinz India (P) Ltd. v. State of U.P. (2012) 5 SCC 443 and .
Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288.
23. In view of the aforesaid analysis, the irresistible conclusion is that both the Labour Court and the High Court have fallen in error by imposing a lesser punishment on the respondent-workman whereas the only punishment, on establishment of the charges which have been accepted by the labour court, should have been dismissal and not a lesser one.
24. In the facts and circumstances of the case, we are impelled to state that the exercise of power under Section 6(2-A) of the Act by the Labour Court is absolutely arbitrary and it can be said without any shadow of doubt that it has not been exercised in a judicial manner. Additionally, when we have further held that the charge pertaining to personal gain has been established, the said view gets more support. It is so, as has been observed in Shobha Suresh (2011) 2 SCC 385 (2012) 5 SCC 443 (2012) 7 SCC 288 Jumani v. Appellate Tribunal16 that there is a cancerous growth of corruption which has affected the moral standards of people and all forms of governmental administration.
25. In Niranjan Hemchandra Sashittal v. State of Maharashtra (2013) 4 SCC 642, it has been observed that:-
"26... corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 17 immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records .
with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality."
In the said case, it has also been observed that the degree of corruption is immaterial.
26. In the case at hand, as we perceive, the delinquent employee has harboured the notion that when the cancerous growth has affected the system, he can further allow it to grow by covering it like an octopus, with its tentacles disallowing any kind of surgical operation or treatment so that the lesion continues. The(2001) 5 SCC 755 (2013) 4 SCC 642 whole act is reprehensible and such a situation does not even remotely commend any lenience.
18. Adverting to the facts of the case, the petitioner was charge sheeted for not having deposited the Corporation revenue amounted to the tune of Rs. 10,998/- and the only ground taken by the petitioner for not depositing the same was that he remained ill and was mentally upset.
19. The defence so raised by the petitioner was found to be false and even the medical certificate that was produced by the petitioner was found to have been issued by a private hospital and the same otherwise was not trustworthy and had, in fact, been procured.
::: Downloaded on - 10/05/2022 20:04:31 :::CIS 1820. There is no irregularity much less illegality in the action of the respondent in conducting inquiry or while imposing .
the punishment. Once the inquiry has been held to be fairly in accordance with law, then, it is neither wise nor prudent or otherwise called for. Thus, this Court need not interfere with the quantum of punishment.
21. The Apex Court in Union of India v. Parma Nanda [(1989) 2 SCC 177], while considering the scope of jurisdiction of the Tribunal in interfering the disciplinary matters or punishment have held as follows:
"27. We must unequivocally state 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 ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 19 on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the .
authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
22. The Apex Court in B.C.Chaturvedi v. Union of India and Others [(1995) 6 SCC 749] while examining the scope of judicial review in a challenge against the imposition of penalty by a disciplinary authority, entered a finding as follows:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 20 some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as .
defined therein, apply to disciplinary proceeding.
When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
23. The Apex Court in Govt. of Andra Pradesh and Others v. Mohammed Nasrullah Khan [(2006)2 SCC 373] while examining the power of High Court in exercising judicial review held that:
" By now it is a well-established principle of law that the High Court exercising power of judicial review ::: Downloaded on - 10/05/2022 20:04:31 :::CIS 21 under Article 226 of the constitution does not act as an appellate authority. Its jurisdiction is circumscribed .
and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice.
Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority."
24. In Pravin Kumar v. Union of India and Others [(2020) 9 SCC 471] the Apex Court reiterated the scope of judicial review in service matters and held as follows:
"25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.
::: Downloaded on - 10/05/2022 20:04:31 :::CIS 2225. It is thus well settled that the constitutional courts .
while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority."
26. In one of the recent decisions, in Deputy General Manager (Appellate Authority) and Others v. Ajai Kumar Srivastava [(2021) 2 SCC 612], the Apex Court after considering the earlier decisions on the subject decided as under:
"25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the
competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact of conclusion.::: Downloaded on - 10/05/2022 20:04:31 :::CIS 23
27. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of .
the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
28. It is settled law that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. While exercising the power of judicial review by constitutional courts, the powers of interference are very limited like correcting of errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and the said exercise of power is not like a procedure for adjudication of the case on merits as an Appellate Authority. The Constitutional Court while exercising judicial review cannot interfere with the finding of facts arrived at the departmental enquiry proceedings except in a case of mala fides or perversity.
::: Downloaded on - 10/05/2022 20:04:31 :::CIS 2429. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this petition and the .
same is accordingly dismissed, so also pending application(s), if any. Parties are left to bear their own costs.
(Tarlok Singh Chauhan) Judge 5th May, 2022 (sanjeev) ::: Downloaded on - 10/05/2022 20:04:31 :::CIS