Regular Second Appeal No. 362 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 362 of 1986 Date of decision: 23.02.2010 Gobind Singh ...Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Esha Gupta, Advocate for the appellant. Mr. B.B.S. Teji, AAG, Punjab for the State. ***** RANJIT SINGH J. The appellant was working as Conductor with Punjab Roadways, Pathankot. He impugned the order dated 20.03.1984 passed by General Manager, Punjab Roadways Depot, Pathankot bringing him down to time scale for 7 years with cumulative effect The effect was that he was not allowed to earn increment during these 7 years. The appellant did not get salary beyond the subsistence allowance for the period he had remained under suspension. The appellant accordingly filed suit to challenge the order passed by urging that the order was illegal, null and void as having been passed in violation of principle of natural justice. Plea further is that while passing this order, his reply to the show cause notice was not considered and that he was punished only on the basis of suspicion. Certain other pleas are also raised in regard to Regular Second Appeal No. 362 of 1986 2 inquiry having not been conducted as per the rules and that he was not provided the assistance of a co-worker during the departmental inquiry. The suit filed by the appellant was contested by the respondent-department. The suit accordingly was tried on the following issues:- 1. Whether the impugned order dated 20.3.84 passed by defendant no. 2 is illegal, null and void etc?OPP 2. Whether the plaintiff served the defendants with legal and valid notice U/S 80 C.P.C. before filing of this suit. If not to what effect?OPP 3. Whether the plaintiff is entitled to the declaration as requested for?OPP. 4. Relief. The suit was dismissed by the trial Court. The appellant filed appeal against the same, which was also dismissed and accordingly, filed this Regular Second Appeal. While issuing notice in this case, the contention raised on behalf of the appellant was noticed to the effect that checking staff did not check the cash nor recorded the statement of passengers who were alleged to have made payment for purchasing the tickets. Taking support from State of Hayrana versus Mohan Singh 1985 (2) SLR 116, it was pleaded that this was a case of no evidence and hence the punishment could not be sustained. The perusal of the record would show that the allegation against the appellant was that on 11.06.1983, he was conducting Bus No. 8832, when it was plying Regular Second Appeal No. 362 of 1986 3 on route Pathankot-Amritsar. The bus was checked by flying squad at 11.55 a.m. at Amritsar octroi post and during this time it was found that two passengers were travelling from Jainte Pur to Amritsar. The appellant had realised Rs. 2.75p per passenger but had not issued tickets to them. The appellant had issued tickets to them at the time of checking but punched these at wrong places in hurry. Five other passengers were found to be travelling without tickets from Verka to Amritsar. The appellant had neither realized the bus fare from them at the rate of Rs. 1.10p per passenger nor had issued them tickets. It was alleged that the appellant knew that these passengers were travelling without tickets. The appellant was accordingly charge sheeted and after his explanation being found unsatisfactory, the inquiry was ordered. In support of the charges, the department examined Dalip Singh, Chief Inspector, Punjab Roadways, Jalandhar, Assa Nand, Inspector, Punjab Roadways Jalandhar, Tarlochan Singh, Inspector, Punjab Roadways Pathankot. The appellant made statement in his defence and examined one Om Parkash in his defence. The inquiry officer held the appellant guilty of the charges except one charge regarding unauthorized use of punch which was found not proved. The General Manager, agreed with the finding of the inquiry officer and issued a show cause notice calling upon him to show cause as to why he be not reduced to the minimum of time scale for a period of 9 years with cumulative effect and for forfeiture of the remaining pay of the suspension period. After obtaining reply to the show cause notice, the punishment as already noticed was awarded to the appellant. Regular Second Appeal No. 362 of 1986 4 Counsel for the appellant would submit that it is a case of no evidence. As per the counsel in the absence of examination of passengers who were found to be travelling without ticket, the evidence of Inspector alone would be of no avail. The counsel would further submit that in order to show this aspect, the flying squad checking the bus was required to at least tally the cash available with the appellant to say that there was shortfall to draw an inference that money was realised without issuing the tickets. These contentions of course have been raised on the basis of observation made by this Court in Mohan Singh's case (supra) and those made in RSA No. 146 of 1973 decided on 12.04.1983. No doubt, this view has been so expressed by this Court in Mohan Singh's case (supra) but the Hon'ble Supreme Court in State of Haryana and another versus Rattan Singh AIR 1977 Supreme Court 1512 (1) has taken a somewhat different view under almost similar circumstances. What is required to be seen is whether this can be a case of no evidence, in the background that none of the passengers who were travelling without tickets were examined. Concededly, the persons constituting the flying squad were examined as witnesses and their evidence is available on record. This limb of submission advanced by the counsel for the appellant is to be appreciated in this background. It may be a case of insufficient evidence but certainly not a case of no evidence as has been observed by the Hon'ble Supreme Court in Rattan Singh's case (supra). It is held in this case that evidence of Inspector and in this case of flying squad, would be some evidence and as such the case Regular Second Appeal No. 362 of 1986 5 could not be termed as a case of no evidence. Not only that the Hon'ble Supreme Court in this regard clearly observed as under:- “ We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in over-turning the finding of the domestic tribunal.” Thus merely because statement of passengers were not recorded, it will not be possible to say either that this is a case of no evidence or that it will be enough to invalidate the impugned order. What the learned counsel has asked for is re-evaluation and appreciation of evidence, which is beyond the scope of civil courts. No doubt the case of no evidence can call for interference but the Court would not be justified in appreciating and seeing whether the evidence was sufficient or not. This was also so observed by the Hon'ble Supreme Court in Rattan Singh's case (supra) as can be noticed from the following observations: “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. We find, in this case, that the evidence of Chamenlal, Regular Second Appeal No. 362 of 1986 6 Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent.” The submissions as being made by the counsel for the appellant were precise submissions, which were advanced in the case before the Hon'ble Supreme Court. The Court had also made some observations in regard to the scope of interference in such like matters by the courts, which can be noted as under:- “It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has 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 not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law 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 and arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. Regular Second Appeal No. 362 of 1986 7 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 submission made by counsel for the appellant that on account of no examination of passengers or for not tallying the cash would invalidate the order of punishment, thus cannot be accepted. It is next contended by the counsel that on charge relating to five passengers having been found travelling without ticket, the defence of the appellant was required to be accepted again is not well founded. While defending the allegation of non issue of ticket to five passengers, the appellant's defence was that they were students. Conceded position from this defence is that five passengers were found travelling without tickets. It was his defence that they were students so were not issued tickets. It was for the appellant to establish that they were students, which he failed to do. The appellant could not justifiably shift burden on the department to prove the negative that they were not the students. It was his plea that they were students and he was to establish this to succeed. Once he has taken up this plea, it was for him to establish the same burden, being on him. Infact the evidence produced on record would Regular Second Appeal No. 362 of 1986 8 show that these passengers were indeed issued tickets on the directions of the flying squad meaning thereby that they were not taken as students to justify non-issuance of tickets to them. I am thus not inclined to accept the line of submissions made by counsel for the appellant. It is not a case of lack of evidence but plea is being made on account of sufficiency of evidence, which is beyond the scope of examination by the Courts. Reference made to Sher Bahadur versus Union of India and others 2002 (4) RSJ 211, concerning the sufficiency of evidence in the departmental proceedings would rather support the view that I am taking. As per the Hon'ble Supreme Court in Sher Bhadahur's case (supra), sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him. It has rightly been observed that it is not a volume of evidence, which is relevant. If the evidence does not establish nexus between the alleged misconduct and the charged officer, it will be no evidence. In this case, there is a evidence, which has squarely established the nexus of the misconduct with the appellant and hence sufficiency of evidence is not to be gone into. Counsel for the appellant has also found fault with the manner in which the show cause notice proposing the punishment was issued to the appellant. Submission is that in the show cause notice, the proposed punishment was also mentioned which would show that the punishing authority had already made up his mind and as thus acted in the pre-determined dispositions. In support reliance Regular Second Appeal No. 362 of 1986 9 has made to M.L. Gera versus The Chief Engineer (D), Irrigation Works, Punjab & Chandigarh and others AIR 1973 Punjab and Haryana 287. This was a case where notice under Rule 8 was issued for the alleged charges and therein the proposed punishment was also incorporated in this same notice and in this background, the said notice was found to be violative of the principle of natural justice. That is not what is the position in the present case. In the present case, the finding was returned after holding a valid inquiry and thereafter show cause notice was issued wherein the punishment was proposed. The fairness in consideration would be evident and would rule out the possibility of any pre-determination from the notice and the punishment, which is finally inflicted. Notice was issued to the appellant for bringing him down for 9 years whereas ultimately after considering his reply the punishment for bringing him down for 7 years was passed. This would be an indication of application of mind and there is no possibility that there was pre-determination. The view taken by the trial Court as well as First Appellate Court is fair and just. The substantial question of law, which has been raised has squarely been answered and settled. Accordingly, no case for interference is made out. Dismissed. February 23, 2010 ( RANJIT SINGH ) rts JUDGE