Allahabad High Court
Tripurari Dutt Pandey Son Of Sri Shiv ... vs Dy. Chief Manager, U.P. State Road ... on 17 November, 2005
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. This writ petition is directed against the removal order dated 6.10.1987 passed by Regional Manager, U.P. State Road, Transport Corporation, Azamgarh (respondent No. 2) and the appellate order dated 4.4.1989 passed by the Dy. Chief Manager, U.P. State Road Transport Corporation (East Zone), Varanasi rejecting the petitioner's appeal.
2. The brief facts arise out this petition are that the petitioner was appointed as conductor on 15.6.1978 in U.P. State Road Corporation (in short UPSRTC). He was placed under suspension on 31.3.1987 (Annexure-3) while posted under Regional Manager, UPSRTC, Azamgarh on the allegation that he was carrying passengers without tickets, A charge sheet was issued to him on 31.3.87 (Annexurel) alleging that on 14.3.87 while he was discharging duty as Conductor in Bus No. UGB-191 on Majhighat-Ballia-Gorakhpur route, the bus was checked by the checking squad at Paharpur at about 12.00 noon when it was found that there were 106 passengers travelling in the bus and 68 were without tickets. When the checking officials demanded block book from the petitioner he kept himself engaged in issuing tickets hurriedly and prepared six collective tickets of 54 passengers and one collective ticket of nine passenger. Still 14 passengers were found travelling] without tickets who were issued tickets alongwith penalty. In support of the charges the checking report dated 19.3.87 submitted by the checking team, was relied upon.
3. The petitioner submitted reply dated 1.6.87 (Annexure-4) stating that on account of Holi festival a number of passengers were travelling by a private bus which got broken down on road near Paharpur when the bus on which the petitioner was discharging duty was passing through, the passenger, stopped the same and boarded without tickets. The petitioner repeatedly asked them to obtain tickets but the passengers did not pay any attention. However, while he was issuing collective tickets, at that time the checking team intervened, resulting in that 14 passengers were found without tickets. The aforesaid facts were explained to the checking team. He further stated that all the passengers were immediately issued tickets alongwith penalty by the Checking Team therefore, no loss has been suffered by UPSRTC. The boarding of the passengers on account of Holi was a situation beyond control of the petitioner. Respondent No. 2 after considering the reply of the petitioner, appointed one Sri D.P. Srivastava, a retired judge as Inquiry Officer for holding regular departmental enquiry. After completion of the enquiry, a report was submitted by the Inquiry Officer on 20.7.1987 (Annexure-7) holding the petitioner guilty of the charge. He further observed that the petitioner had obtained fare from the passengers but did not issue tickets to them and therefore, was guilty of misconduct in discharge of his duty. Respondent No. 2 furnished copy of the Inquiry Officer to the petitioner along with a show cause notice dated 5.8.1987 (Annexure-6) which was replied by the petitioner vide his letter dated 8.9.87 (Annexure-8), The disciplinary authority after consideration of the entire material on record imposed punishment of removal upon the petitioner vide order dated 6.1.0.87 (Annexure-9). The petitioner preferred statutory appeal before respondent No. 1 on 3.11.87 which has been rejected by the appellate authority vide order dated 4.4.1989. The petitioner has averred that appellate order was made available to him on 6.7.93 and thereafter he has preferred the present writ petition.
4. Respondents have filed counter-affidavit stating that the petitioner was in the employment of UPSRTC and therefore, any relief he sought would have effected the UPSRTC but without impleading UPSRTC, the present writ petition has been filed which is not maintainable for non joinder of necessary party. It is further stated that the petitioner is habitual offender and in the past also he was found guilty of similar charges of misconduct. His three months good conduct allowance was deducted vide order dated 21.10.81 when he was found carrying 50 Kgs. of goods without booking. On 3.7.79 he carried one passenger without ticket for which warning was administered vide order dated 24.7.79. Again for the same charge two months' good conduct allowance was deducted. Similar misconduct was committed by the petitioner on 25.11.78 while he was found carrying one passenger without ticket, and two months' good conduct allowance was deducted vide order dated 18.12.79. Again on 1.8.79 he was found taking one passenger without ticket, hence, by order dated 30.8.91 his two months' good conduct allowance was deducted. On 7.3.80 similar misconduct was committed by him as he was found carrying 4 passengers without ticket and by order dated 30.6.80 his 8 months' good conduct allowance was deducted. On 7.8.81 the petitioner was found taking one passenger without ticket and as such vide order dated 26.9.81 he was administered serious warning. On 12.3.84 he was found taking two passengers without tickets for which his four months' good conduct allowance was deducted vide order dated 25.4.84 and on 26.5.84 again he was found guilty for taking one passenger without ticket for which his three months' good conduct allowance was deducted vide order dated 23.8.84. Thus repeatedly he was found guilty of similar misconduct and minor punishment imposed on the petitioner did not prove to be deterrent. The petitioner did not improve his cannot and on the other hand his activities of the aforesaid kind increased day by day. Ultimately, on the findings recorded by the enquiry officer and the disciplinary authority the charge of carrying 14 passengers without tickets was found proved. Accordingly punishment of removal from service has been imposed by the impugned orders passed by the respondent.
5. It is also stated that the petitioner is guilty of latches and the petition may be dismissed on this ground. The appeal has been rejected on 4.4.89 and the writ petition was filed on 12.8.93. It is stated that the copy of the appellate order was made available to the petitioner vide letter No. 1597 Azam/ RM/Dis/89 dated 27.4.89 sent by the Assistant Regional Manager, Ballia and the contention of the petitioner is that he received copy of the appellate Court's order on 6.7.93 is not correct. It is also stated that since the petitioner has alternative remedy by rising an industrial dispute before the Labour Court, this writ petition is not maintainable in view of Division Bench Judgment of this Court in the case of Sri Kishan Shim v. Regional Manager, U.P, passed in Writ Petition No. 8102 of 1980 decided on 26.2.1988.
6. It appears that during the pendency of the present writ petition, the petitioner Tripurari Dutt Pandey died, thereafter, his heirs filed substitution application which was allowed by this Court vide order dated 25.2.99 and therefore, the writ petition survives only to the extent of monetary and other benefits to the substituted heirs, in case, the writ petition succeeds. No rejoinder affidavit has been filed. However, since the matter is pending since 1993, the learned Counsel for the parties jointly requested that the matter may be heard and decided finally under the Rules of the Court and with their consent the writ petition is being heard and decided finally.
7. Learned Counsel for the petitioner submits that the impugned order; of punishment and that of the appellate Authority's order are non speaking and unreasoned, therefore, is liable to be set aside. It is further contended that on the basis of the material available on record, it cannot be said that the report of the inquiry officer was worth acceptable. Consequently the findings of the respondent Nos. 1 and 2 cannot be said to be correct being based on the inquiry report. His further argument is that the impugned order of punishment is based on surmises and conjecture. He submitted that the reply of the petitioner has not been considered and the relevant material available on record has been ignored. It is further submitted that since the punishment was already imposed on the date of checking i.e. the tickets were prepared alongwith penalty which was realized from the petitioner, therefore, he could not be punished again for the same charge. It is also submitted that without examining the 14 passengers who were allegedly traveling in the bus without tickets, the petitioner could not have been held guilty of the aforesaid charge particularly when the fare alongwith fine has already been realized for the aforesaid 14 passengers as this amounts to double jeopardi.
8. Learned Counsel for the respondents, however, submitted that no error in decision making process has been pointed out by the petitioner. The Inquiry officer as well as the Disciplinary authority have given adequate opportunity of hearing to him to defence his case. This Court in exercise of judicial review will not reappriciate the evidence and will not sit in appeal as appellate authority over the finding of the Disciplinary authority. It is further stated that the Disciplinary authority and the appellate authority are the sole judges to appreciate the facts. The order passed by the Disciplinary authority shows that it has considered the entire matterand after discussing the evidence against the petitioner, and recording finding of guilt, the impugned punishment has been imposed. The appellate authority has agreed with the findings of the Disciplinary authority. It was not to give details for such agreement. Therefore, the two orders cannot be said to be non speaking and unreasoned. It is further submitted that while awarding punishment, the fact that he was earlier punished if considered for quantum of punishment, it cannot be said that it amounts to double jeopardi.
9. Having heard learned Counsel for the parties and perusing the material on record I find force in the submissions of learned Counsel for the respondents. The disciplinary proceeding has been conducted after affording opportunity to the petitioner. The Inquiry Officer as well as the Disciplinary authority have discussed the material available on record in order to record guilt of the petitioner. In the absence of error in decision making process, the disciplinary proceeding cannot be interfered. Further the finding of the Departmental authority cannot be reappreciated or looked into unless it can be shown that there is no legal evidence and a person of ordinary prudence would not arrive at a conclusion which has been arrived at by the Disciplinary authority. At this stage it would be pertinent to have a glance over the law throwing light on the scope of judicial review in such matters.
10. The judicial review in the matter of disciplinary proceedings proceed in a narrow sphere and is confined to the extent of decision making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts and hence not bound by strict rules of evidence.
11. A Constitution Bench in the case of State of Mysore v. Shivabasappa , in para 3 of the judgment held as under: ;
Tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to fallow the procedure prescribed for trial of actions In Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.
12. In the matter of departmental enquiry, what is the Scope of judicial review, has been considered by the Apex Court in the case of State of Andhra Pradesh v. Sree Rama Rao it has held as under:
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 tinder 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 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 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 a 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 fact 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 same 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, "(para 7).
13. In Bareilly Electricity Supply Co. Ltd. v. Workmen and Ors. , the Apex Court held that the procedure prescribed in the Evidence Act is not applicable in the departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in the departmental proceedings by the person competent to spoke about them and are subjected to cross-examination. The relevant observations are as under:
But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used
14. In the case of State of Haryana v. Rattan Singh certain passengers were found to have travelled alighted the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge sheeted. The employer on the basis of the statements of the Flying Squat held the charge proved. The employee challenged the order of punishment on the ground that the passengers are said to have travelled without ticket were not examined and in the absence thereof the entire evidence is hear-se. The Apex Court rejecting such contention held as under:
It is well settled that in a domestic enquiry the strict and sophistical rules of evidence under the Indian Evidence Act may not apply. All materials which are logically pro ha five for a prudent mind and are permissible. There is no allergy to hearsay evidence provided it lies reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking no relevant under the Indian Evidence Act. For the proposition it is not necessary to cite decisions nor text books, although we have been taken through case and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair com/nonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.
15. In B.C. Chaturvedi v. Union of India , reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:
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 he based on 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 reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings asainst 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.
16. In R.S. Saini v. State of Punjab the Apex Court held:-
The standard of proof required in disciplinary proceedings is that of preponderance of probability where there are some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It also held if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This is followed in Lalit Popli v. Canera Bank and Ors. .
17. The same view has been followed by the Apex Court in the case of High Court of Judicature at Bombay v. Shashikant S. Patil , wherein it has been held as under:
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 before Article 226 of the Constitution.
18. The Apex Court in the above case also held that the disciplinary authority while considering the report of the enquiry officer is neither an appellate nor a revisional body and, therefore, its order cannot be drafted like a judgment. Even where it differs from the finding of the enquiry officer, it need not to discuss and contest in detail the conclusions of the enquiry officer but it is sufficient if it refers to its disagreement with some reason. The relevant observations are reproduced as under:
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
19. In Syed Rahimuddin v. Director General, CSIR , the Apex Court observed as under:
It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man.
20. In Sher Bahadur v. Union of India , the orders of punishment were challenging on the ground of lack of sufficiency of the evidence. The Apex Court explained that the expression sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him and it is not the adequacy of the evidence.
21. Recently, in the case of Government of Andhra Pradesh v. Mohd. Nasrullah Khan, Judgment Today 2006 (2) SC 82, the Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if resulting in manifest miscarriage and justice or violation of principles of natural justice. In para 7, the Hon'ble Court held as under:
By now it is a well established principle of law that the High Court exercising power of judicial review 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 appreciating the evidence as an Appellate Authority.
22. In the present case it is not disputed by the petitioner that the oral enquiry has been conducted by the Inquiry Officer wherein witnesses have been examined and one witness has also been produced by the petitioner in his defence. On the basis of the statements recorded before the Inquiry officer, the charges were found proved holding that 14 passengers were boarding the bus without tickets and they had paid fare to the conductor i.e. the petitioner, but the tickets were not issued to them. The Inquiry officer has disbelieved the defence witness giving reason that he could not produce any evidence to prove that he was travelling on the date of checking in the private bus or in Roadways bus on which the petitioner was on duty and therefore, the statement made by him was not reliable. He also did not found the statement of the departmental witnesses worth of any doubt since nothing could be brought to his notice. The petitioner has not shown that he was not given sufficient opportunity to defend his case during enquiry Including opportunity to cross examine the departmental witnesses. The Inquiry officer has held that the carrying of passenger without tickets is an offence punishable under Section 82 of the Motor Vehicle Act but also a misconduct under "UPSRTC. (Condition of Services of the Staff) (other than Officers) Regulations 1987. He has further held that the realization of fare alongwith fine was a punishment under the Motor Vehicle Act and could not be co related to the punishment liable to be imposed on the employees of UPSRTC found guilty of misconduct under the Service Regulation of 1987.
23. The Disciplinary authority has also discussed the entire evidence and material on record to arrive at the conclusion that the charge against the petitioner regarding carrying passengers without tickets stands proved. The order of the disciplinary authority is in running more than 8 pages and it cannot be said that it is a non speaking or unreasoned order and he has not applied mind. The Disciplinary authority has given exhaustive finding and the order cannot be said to be vitiated in law on the ground of non speaking. Thus, the contention of the petitioner that it is non speaking and unreasoned cannot be accepted.
24. So far as the appellate order is concerned, the law is well settled that the appellate authority, if agreed with the findings of the disciplinary authority, it need not to pass a detailed order.
25. The Apex Court in Bhagat Raja v. Union of India and Ors. held:-
when the authority whose decision is to be reviewed gives reasons for its conclusion and the reviewing authority affirms the decision for he reasons given by he lower authority, one can assume that the reviewing authority found the reasons given by the lower authority as acceptable to it; but, where the lower authority itself fails to give any reason other than that the successful applicant was an old lessee and the reviewing authority does not even refer to that ground, this Court has to grope in the dark for finding into reasons for upholding or rejecting the decision of the reviewing authority.
26. In Som Datt Datta v. Union of India and Ors.-, it is held ;-
In the present case it is manifest that there is no express obligation imposed by Section 164 or by Section 165 of he Arms Act on the confirming authority or upon the Central Government o give reasons in support of its decision to confirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
27. In S.N. Mukherjee v. Union of India AIR 1990 SC 1985, the Apex Court held :-
The appellate or revisional authority, if it affirms such an order, need not give separate reasons with the reasons contained in the order under challenge
28. Recently the Apex Court in the case of National Fertilizers Ltd. and Anr. v. P.K. Khanna 2005(107) FLR 163, has also taken the similar view that -
In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and given the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him the question of non-compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order.
29. In the case in hand as discussed above, the appellate authority has rejected the appeal by referring to the finding recorded by the Disciplinary Authority and has observed that the petitioner could not show any thing in order to justify a different view than what has been taken by the Disciplinary authority. In the circumstances, this Court neither can reappreciate the evidence nor record a finding nor shall interfere with the aforesaid order unless it could have been shown by the petitioner that on the basis of material on record no person of ordinary prudence could have come on the finding which has been arrived at by the respondent and that finding based on no evidence at all or that he has been denied opportunity of defence causing prejudice.
30. In the result I do not find any merit in this writ petition. It is accordingly, dismissed. No order as to costs.