IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.27 of 2016.
Judgment reserved on: 16.10.2019.
Date of decision: 21.10.2019.
[ENTITY] Appellant. Versus
[ENTITY] and another r Respondents.
Coram The Hon'ble Mr. Justice [ENTITY], Judge. The Hon'ble Mr. Justice [ENTITY], Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. [ENTITY], Advocate.
For the Respondents: Mr. [ENTITY], Additional Advocate General with Mr. [ENTITY], Ms. [ENTITY] and Mr. [ENTITY], Deputy Advocate Generals. [ENTITY], Judge
Aggrieved by the dismissal of his writ petition, the appellant has filed the instant Letters Patent Appeal.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
2. Brief facts giving rise to the filing of the present appeal are that the appellant was deputed to drive the .
departmental vehicle from Shimla to Kalka. According to the appellant, when he was coming back to Shimla, he got down from the vehicle and was overpowered by some unknown persons. Such persons drugged him and when he regained consciousness, he found himself at his residence on 06.10.2004. Whereas, the fact of the matter is that the vehicle of the appellant had met with an accident on the evening of the same day at Kachighati, Shimla, causing loss to the tune of Rs.59,190/-. But, the appellant neither reported the matter to the police nor apprised the department. This led initiation of departmental proceedings against appellant for which he was served a memorandum under [SECTION] of [ACT] dated 02.12.2004.
The appellant filed a detailed reply to the same dated 10.12.2004.
3. The Inquiry Officer was appointed, who submitted his report to the Disciplinary Authority. The Inquiry Officer gave findings that the delinquent official drove the vehicle in a negligent manner, resulting in accident on 05.10.2004 and the version put forth by the appellant that some unidentified persons had drugged him and thereafter dropped him at his residence was not .
accepted by the Inquiry Officer.
4. The appellant was permitted to file representation to the inquiry report vide memorandum dated 28.07.2006. The appellant filed a detailed reply dated 11.08.2006. However, the Disciplinary Authority was not satisfied with the same and ordered the removal of the appellant vide order dated 21.09.2006 by passing a detailed/speaking order.
5. The appellant thereafter assailed the removal order before the erstwhile H.P. State Administrative Tribunal by filing [CASE NUMBER] which upon abolition of the learned Tribunal came to be transferred to this Court and was assigned [CASE NUMBER]. Since, the appellant had not filed any statutory appeal against the order of removal, he was permitted to file a statutory appeal and the petition was disposed of on 05.04.2010. The appellant thereafter filed statutory appeal and the same was dismissed by the Appellate Authority on 10.06.2010.
6. Aggrieved by the order passed by the authorities below, the appellant filed [CASE NUMBER] and, as observed above, the same came to be dismissed by by the learned Single Judge, constraining the appellant to .
file the instant appeal.
We have heard the learned counsel for the parties and gone through the records of the case.
7. At the outset, it needs to be noted that the learned Single Judge after taking into consideration the entire material on record has drawn a specific conclusion that the version put forth by the appellant regarding the accident was a cock and bull story and, as a matter of fact, an accident had occurred because of the gross negligence of the appellant.
8. Insofar as the reliability and adequacy of the evidence is concerned, this Court cannot venture into reappreciation of the evidence and act as third Appellate Authority. The scope of interference by the High Court in such matters has been succinctly summed up by the Hon'ble Supreme Court in [PRECEDENT] in the following terms:-
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No.I was accepted by the disciplinary authority and .
was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under [SECTION] of the [ACT], shall not venture into reappreciation of the evidence. The High Court can only see whether:
r authority;
a. the enquiry is held by b. the enquiry is held according to the a competent procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under [SECTION] of the [ACT], the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it rmay appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
9. From the material available on record, we find that not only the Disciplinary Authority, but even the Appellate Authority and thereafter the learned Single Judge considered the case threadbare in its entirety.
10. Now, the only question that remains to be considered is regarding the proportionality of punishment as it is vehemently argued by Mr. [ENTITY], learned counsel for the appellant that the penalty imposed is disproportionate.
11. It needs to be observed that similar contention was raised before the learned Single Judge, who after placing reliance upon the judgment of the Hon'ble Supreme Court in Chairman and Managing Director, United .
Commercial Bank and others vs. P.C. Kakkar and connected matter, reported in [PRECEDENT], chose not to interfere, more particularly, in light of the observations made in paras 11 and 12 thereof which reads as under:
"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is .
shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."
12. It is more than settled that doctrine of proportionality is a well recognized concept of judicial review. The power to impose penalty/punishment is within the discretionary domain and sole power of the decision-
maker to quantify once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention only if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of punishment would be "would any any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
13. The appellant admittedly was working as a driver at the relevant time and despite having caused an accident .
in which the departmental car was badly damaged thereby causing loss of Rs.59,190/-, he did not even bother to inform the department, rather, the appellant chose to put up a concocted story.
14. It has to be remembered that the driver in a department is a man of confidence. Therefore, his conduct, attitude and understanding of responsibility and adherence to discipline in an apple pie order is expected of him. The proven charges luminously project that the appellant had given all these aspects a total go-by and chosen to put up a cock and bull story.
15. In this background, it is well-nigh impossible to hold that the punishment of removal is in any manner harsh and arbitrary.
16. All the road users including professional drivers today are extremely vulnerable and exposed to the risk of accidents. These accidents essentially are not caused or attributable to the driver of the vehicle and same could be caused or may occur solely because of the fault of the other road users like vehicles, pedestrian or an animal, or can be caused because of a mechanical failure or for hosts of other reasons where the driver of the vehicle is not at all at .
fault. But, nonetheless once an accident does take place, the driver of the vehicle, more particularly, when the vehicle belongs to a government department owes a duty to immediately bring the true facts leading to the accident to the notice of his employer and not put up a totally concocted story (like in the instant case) which on the face of it is not believable.
17. Consequently, we find no merit in this appeal and accordingly the same is dismissed.
([ENTITY]) Judge ([ENTITY]) Judge 21st October, 2019.
(krt)