Allahabad High Court
Devendra Kumar Dixit In Person vs State Of U.P. Thru Secy. Civil Aviation ... on 27 April, 2022
Bench: Rajesh Bindal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice Court Serial No. 323 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (Lucknow) SPECIAL APPEAL No. - 255 of 2021 (Arising out of Writ Petition No.7191 (S/S) of 2002) Reserved on March 22, 2022 Delivered on April 27, 2022 Devendra Kumar Dixit ...Appellant Through :- In Person v/s State of U.P. and others ....Respondents Through :- Shri Q.H. Rizvi, Standing Counsel Coram : HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE JASPREET SINGH, J. ORDER
01. The instant intra-court appeal has been preferred by Shri Devendra Kumar Dixit, the appellant, who appears in person being aggrieved against the impugned judgment and order dated 17.02.2021 passed by the writ Court in Writ Petition No.7191 (S/S) of 2002 (Devendra Kumar Dixit v. State of U.P. and others), whereby the writ petition filed by the appellant challenging his punishment order has been dismissed.
2. The appellant had challenged the order dated 04.11.2002 (correct date being 04.12.2002) by which the appellant was removed from service on the grounds of indiscipline, misbehaviour and use of abusive language against his superior.
3. A due enquiry was instituted wherein the charges against the appellant were duly found proved. A copy of the enquiry report was served on the appellant, who was also issued a show cause notice seeking his response to the findings of the enquiry officer which was also considered and thereafter Deputy Director of State Civil Aviation Department found that the findings recorded by the Enquiry Officer were in consonance with the material available on record and duly corroborated by the evidence and considering the charges against the appellant including his previous conduct where he had indulged in several incidents of impudence and despite having been reprimanded and minor punishment having been imposed yet there was no improvement in his behaviour, thus, noticing the sensitivity required in the Department of Civil Aviation where discipline is a key ingredient and that being missing in the appellant, the punishment order removing the appellant from service was passed.
4. The appellant in person, while assailing the order passed by the writ Court, has primarily urged that the enquiry held by the Department against the appellant was motivated. False and fabricated documents were produced by the Department before the Enquiry Officer and also before the writ Court. The State Government and the Department has targeted the appellant and the order of removal has been passed though alleged incident dated 24.01.2002 was fabricated and even otherwise there was no such material by which the charge against the appellant was proved and he could not have been removed from service.
5. The appellant in person has also filed his written submissions which have been taken on record. From a perusal of the written submissions, filed by the appellant, it indicates that the allegations of mala-fides have been leveled against various departmental persons and superior officers including the counsel for the State contesting the proceedings before the writ Court apart from the ground of challenge to the departmental proceedings being arbitrary and in violation of settled norms.
6. The appellant has also placed reliance on the decision of the Apex Court in the case of S. Nambi Narayanan v. Siby Mathews and others, (2018) 10 SCC 804 and it has been stated that the proposition laid down in the said case is squarely applicable to the case of the appellant. It is also stated that the State has made effort to punish the appellant for his honesty, who had uncovered the corruption in the Department which irked the senior officers as a result, the punishment order has been passed which is actuated by mala-fides, consequently the appeal and the writ petition deserves to be allowed after setting aside the order passed by the writ Court.
7. On the other hand, learned Additional Chief Standing Counsel for the State-respondents while refuting the submissions has drawn attention of the Court to the counter affidavit indicating that in view of the incident of misbehavour and use of intemperate language by the appellant against his superior officer which occurred on 24.01.2002, the appellant was put under suspension on 30.01.2002 and an Enquiry Officer was duly appointed. The charge-sheet dated 02.02.2002 containing article of charges leveled against the appellant was served on him on 06.02.2002. The appellant was granted full opportunity to participate in the Departmental enquiry and at each stage, he was provided with the requisite documents and materials to ensure that no prejudice is caused to the appellant. However, the appellant has misused the liberty inasmuch as he leveled allegations against the Enquiry Officer including making an application to seek removal of the Enquiry Officer. However, the enquiry was completed and the charges leveled against the appellant were found proved. The enquiry report dated 06.08.2002 was served on the appellant, who was required to show cause dated 26.10.2002 regarding acceptance of the findings and on the proposed punishment of removal from service. Even at that stage, the appellant raised objections and leveled allegations only to embrass the superior officers of the department as well as officials connected with the enquiry. The disciplinary authority found the findings of the enquiry officer were duly corroborated with the statements and material on record and considering the past conduct which included infliction of minor punishment on several occasions, the appellant was removed from service.
8. Learned Additional Chief Standing Counsel also submitted that the appellant filed a number of writ petitions including through his relatives raising allegations not only against the superior officials of the Department but also against the Hon'ble Judges of the Court and whosoever was connected with the enquiry but all the writ petitions were dismissed and in some cases even costs were imposed against the appellant.
9. In the aforesaid circumstances, it has been urged that where the appellant has not been able to establish any fundamental error in the conduct of the enquiry and insofar as the quantum of punishment is concerned it has been considered to be appropriate, hence, this Court in exercise of its powers of judicial review will not sit as an appellate Court over the departmental authorities, hence, the dismissal of the writ petition by the writ Court does not suffer from any error which may require the interference of this Court in its intra-court appellate jurisdiction. Accordingly, the appeal being devoid of merit is liable to be dismissed.
10. The Court has considered the submissions made by the appellant in person so also in the written submissions filed by him as well as the submissions of the learned counsel for the State-respondents and perused the material on record.
11. Two issues arise for consideration of this Court; (i) as to whether any procedural error has occurred in the Departmental Enquiry which has fundamentally affected its outcome; (ii) whether the order passed by the writ Court requires any interference.
12. Insofar as the first issue is concerned, the record would indicate that the appellant was working as a clerk in the Department of Civil Aviation. On 24.01.2002, while an inspection was underway, an Aircraft Inspector had sought a sofa and carpet. During the inspection while superior officers were visiting, the appellant was informed to come later. In response thereof, the appellant used unparliamentary language against the superior officers and also misbehaved with him giving a clear indication of impudence and indiscipline. The appellant was put under suspension on 30.01.2002 and a charge-sheet was served on 06.02.2002. The appellant had sought time to respond which was granted. The appellant filed his response and thereafter the statement of the witnesses was recorded.
13. It will be relevant to notice that initially an order of removal was passed against the appellant on 22.08.2002 against which the appellant preferred a Writ Petition No.4806 (S/S) of 2002. The writ Court finding that without recording specific findings on the charges leveled against the petitioner, the order of removal had been passed which was bad and consequently, it was quashed and set aside and the Department was granted liberty to proceed against the appellant without being influenced by any of the observations made in the said order dated 16.09.2002 after permitting the appellant to inspect the records. The relevant portion of the order dated 16.09.2002 reads as under:
"It is not disputed that respondent No.2 while passing order of removal has not recorded specific finding on the charges leveled against the petitioner. In view of this, the order of removal dated 22.8.2002 is incorrect and is hereby quashed. The Advocate General submits that in order to obviate any objection in future, the respondents have no objection in showing the records to the petitioner. The parties agree that the petitioner may inspect the records on 22.9.2002 and he may file his further reply by 4.10.2002. Thereafter respondent No.2 may pass a reasoned order without being influenced by any of the observations made in his order."
14. It is thereafter that the disciplinary authority after complying with the directions given by the Court in its order dated 16.09.2002 passed in Writ Petition No.4806 (S/S) of 2002 reconsidered the entire issue. The report of the Enquiry Officer was also served on the appellant and he was also issued with a show cause notice dated 26.10.2002 seeking his response regarding the findings returned by the Enquiry Officer. The appellant in response sought time and thereafter on 27.11.2002 gave his reply which was considered by the disciplinary authority and by means of the order dated 04.11.2002, the appellant was removed from service. Thereafter, by a corrigendum dated 09.12.2002, it was clarified that the order of removal is dated 04.12.2002 and not 04.11.2002. This order of removal was assailed by the appellant in Writ Petition No.7191 (S/S) of 2002.
15. The primary ground of challenge raised by the appellant is prejudice, arbitrariness and procedural illegalities. However, as record would reveal that insofar as the procedural illegalities is concerned, it cannot be said that the appellant was not granted adequate opportunity of putting up his case or that any prejudice was caused since at all stages, the appellant was duly put to notice and he was granted adequate opportunities and he also filed his response which was duly considered by the Enquiry Officer as well as by the Disciplinary Authority. This aspect of the matter is amply clear from the punishment order itself and the appellant could not dispute that he could not participate in the enquiry and this was also noticed by the writ Court wherein it observed that the appellant could not point out any procedural irregularity in the departmental proceedings.
16. The scope of judicial review insofar as the departmental enquiries are concerned has recently been noticed by the Apex Court in Deputy General Manager (Appellate Authority) and others v. Ajai Kumar Srivastava, (2021) 2 SCC 612, wherein noticing the earlier decision in Paragraphs 22 to 28, it held as under:-
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court in State of T.N. v. T.V. Venugopalan [State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302 : 1994 SCC (L&S) 1385] and later in State of T.N. v. A. Rajapandian [State of T.N. v. A. Rajapandian, (1995) 1 SCC 216 : 1995 SCC (L&S) 292] and further examined by the three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it has been held as under: (B.C. Chaturvedi case [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , SCC pp. 759-60, para 13) "13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court/tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumarv. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103].
24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry 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 or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
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 or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. 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."
17. Having considered the submissions and on perusal of the record, this Court too is satisfied that there is no fundamental irregularity or illegality in the departmental proceedings and moreover this Court in exercise of powers of judicial review in departmental proceedings does not act as a Court of appeal.
18. In view of the aforesaid, this Court does not find any merit in the first contention of the appellant that the departmental enquiry has been vitiated on account of procedural irregularity/illegality.
19. Insofar as the second issue regarding the correctness of the order passed by the writ Court is concerned, the record indicates that the appellant has indulged in raising allegations and accusations against the superior authorities of the Department. The record further indicates that the appellant has repeatedly filed several writ petitions raising wild and frivolous allegations and the petitions were consequently dismissed.
20. The Department of Civil Aviation in its counter affidavit filed before this Court in Paragraph-15, has given a summary regarding the previous conduct of the appellant. It has also referred to several orders passed by the writ Court in Writ Petition No.7191 (S/S) of 2002 wherein the appellant apart from raising allegations against the Ex-Director General of State, Civil Aviation Department has also made allegations against the learned Senior Counsel of this Court.
21. The appellant had moved applications under Section 340 Cr.P.C., read with Section 195 with a prayer to initiate enquiry against the Ex-Director General of State, Civil Aviation Department, which was rejected. The appellant also filed a Writ Petition No.2163 (M/B) of 2016 wherein relief was sought for summoning the record pertaining to authorization of the Government Flying Centre at Kanpur. Again in the aforesaid petition, reckless allegations were leveled and a Coordinate Bench of this Court by means of the order dated 05.02.2018 dismissed the petition noticing that the petitioner i.e. appellant herein had misused the liberty and since he was a dismissed employee, the Court refrained from imposing any cost.
22. Be that as it may, all that transpires from the record is that after his removal from the service, the appellant has attempted to project himself as a whistle-blower and has raised allegations against superior officials of the Department and did not even spare the Court.
23. Another Coordinate Bench of this Court in its order dated 06.04.2016 had dismissed the petition of the appellant bearing Writ Petition No.7137 (M/B) of 2016 imposing a cost of ₹10,000/- wherein the appellant had made reckless allegations against the Court. The issue of concealment of fact, summoning of documents and the mala-fides which have been leveled has been dealt with by the writ Court at various stages and all the attempts made by the appellant were found to be frivolous and motivated and consequently rejected.
24. This aspect of the matter has also been considered by the writ Court more specifically in paragraphs 6 to 10 of the order dated 17.02.2021 passed by the writ Court. Needless to say that the material which has been considered by the writ Court by noticing the earlier orders passed against the appellant, they have not been assailed any further and have attained finality. This clearly reflects that the appellant is in the habit of raising unsubstantiated and unreasonable issues.
25. The issue of concealment, arbitrary action of Department Officials, allegations against the Ex-Director General of Department of Civil Aviation and seeking an enquiry against officers of the department and their functioning as raised by the appellant has already been considered and rejected. The petitioner also misused the process of P.I.L., by getting a petition No.863 (M/B) of 2003 filed through his brother-in-law raising allegations of corruption in the department which was dismissed vide order dated 11.03.2003. Another P.I.L., filed by the petitioner raising similar ground bearing No.2163 (M/B) of 2016 was also dismissed vide order dated 05.02.2018. The appellant even got a book published maligning the judicial institution and raising allegations against senior officials of the Department. The aforesaid material is on record in the counter affidavit filed by the respondents.
26. Instead of attacking the charges and punishment order passed against the appellant on legal and cogent grounds rather he has gone on a spree of making wild accusation against officers of the department as if they are being enquired against. The appellant has not made any submission on the quantum of punishment and thus taking the entire material into consideration as well as the conduct of the appellant both prior to passing of the order of removal dated 04.12.2002 and even thereafter till the disposal of the writ petition and taking a holistic view the writ petition has been dismissed.
27. Lately, the Apex Court in the case of Union of India and others v. Managobinda Samantaray, 2022 SCC OnLine SC 284, in Para-9 has observed as under:-
"Quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice, B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749.The decision are also disturbed when it is found to be ailing with perversity, Pravin Kumar v. Union of India, (2020) 9 SCC 471. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters, Chairman-cum-Managing Director, Coal India Limited v. Mukul Kumar Choudhuri, (2009) 15 SCC 620. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate."
28. In light of the aforesaid discussions, the elements of arbitrariness as sought to be projected by the appellant pales into insignificance and it cannot be said that the view taken by the writ Court requires any interference. Moreover from a perusal of the written submissions, it indicates that the same issues have been raised which have already been considered and rejected for cogent and appropriate reasons at earlier stage and such orders have attained finality. Even the reliance placed by the appellant on the case of Siby Mathews (supra) is also misplaced and it does not have a bearing on the instant case. The appellant cannot be permitted to misuse the judicial proceedings for his self serving motivates and moreover the appellant has already attained the age of superannuation, thus, for all the aforesaid reasons, the appeal being devoid of merits is liable to be dismissed.
29. In view of the aforesaid discussions, the appeal is dismissed. However, in the facts and circumstances, there shall be no order as to costs..
(Jaspreet Singh) (Rajesh Bindal)
Judge Chief Justice
Lucknow
April 27th, 2022
Rakesh Prajapat
Whether the order is speaking : Yes
Whether the order is reportable : Yes