IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2164 of 2011. Reserved on: 20.4.2011. Decided on: 6th May, 2011. Prithvi Singh. …Petitioner. Versus Himachal Road Transport Corporation and another. … Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. V.D. Khidtta, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. What is the standard of proof in a departmental/domestic enquiry and what is the extent of jurisdiction of this Court under Article 226 of the Constitution in such matters are the two questions arising for consideration in this. 2. The petitioner is essentially aggrieved by the disciplinary proceedings initiated against him. He was served with the Article of charge on 12.6.1990. The gist of the allegation is that on 20.5.1990, the petitioner had been put on duty with bus No. HPN-632, which was booked by one Shri Vinod Kumar for taking a marriage party from Nahan to Shazadpur and back. The petitioner was under the influence of alcohol while on duty on that day, he had 2 not adhered to the time schedule, had driven the bus rashly and negligently, causing also an accident involving a scooter and the bus was detained by the police, and the marriage party had to arrange for another vehicle. The said Vinod Kumar thereafter lodged a complaint with the HRTC. Thereafter disciplinary proceedings were initiated. Annexure P-1 is the report of the domestic enquiry. On the basis of the evidence to the effect that the petitioner while on duty as driver of the vehicle was under the influence of alcohol, he was given lemon to reduce the influence of liquor and he was made to take rest for a while and on his claim that he was normal only he undertook the return journey and the vehicle was driven in a rash and negligent manner, and on account of such rash and negligent driving, the vehicle hit against a scooter, and the marriage party had to arrange for another vehicle since the bus was detained by the police, the Inquiry Officer reported that the Article of Charge dated 12.6.1990, referred to above, was fully proved. On the basis of that report, show cause notice was issued and finally he was imposed a punishment of compulsory retirement as per Annexure P-5 dated 29.12.1994 and the same was ultimately confirmed in appeal by order dated 1.2.2011. Thus aggrieved, the writ petition is filed. There is also challenge to Annexure P-1, Inquiry Report. 3. The crux of the arguments advanced by the petitioner is that there is no evidence to the effect that the petitioner was under the influence of alcohol. It is submitted that he 3 was not subjected to any scientific test in that regard. The Inquiry Officer has dealt with the above stand of the petitioner and has held that the complainant could not take any steps in that regard and it is beyond the normal conduct of a reasonable person in the given circumstances. There was ample evidence to the effect that the petitioner was under the influence of liquor, he was sleeping under such influence and he had to be administered lemon so as to reduce the influence of alcohol and that the vehicle was driven in a rash and negligent manner causing also an accident. All these have been established on evidence. Therefore, it is not a case of no evidence as contended by the learned counsel for the petitioner. 4. The law is well settled that in domestic enquiry, technical and complicated Rules of evidence are not applicable. What is required is consideration of the available evidence with fair commonsense. Under Article 226 of the Constitution of India, the High Court will not re-appraise the evidence as if in appeal is also a well settled position. 5. In State of Andhra Pradesh and others vrs. Chitra Venkata Rao, reported in (1975) 2 SCC 557, at paragraph 21, it has been held as follows: “ 21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal 4 trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Second, 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 the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may 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 face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their 5 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.” 6. It has been further held in the said decision that ……… “ A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said findings is within the exclusive jurisdiction of the Tribunal.” 7. In State of Haryana and another vrs. Rattan Singh reported in (1977) 2 SCC 491, to quote Krishna Iyer, J: “ In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though 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 Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence- not in the sense of the technical rules governing Court 6 proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.”…….. 8. In State of T.N and another vs. S. Subramaniam, (1996) 7 SCC 509, it has been held that: “It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application to the disciplinary proceedings and the authority is to consider the material on record.” 9. In the High Court of Judicature at Bombay vs. Uday Singh S/O Ganpatrao Naik Nimbalkar and others, (1997) 5 SCC 129, the scope of the departmental enquiry has been considered in further detail and it has been held: “The scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. However, in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of ‘proof beyond doubt’ also has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test is to see whether there is evidence on record to reach the conclusion that the delinquent committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion.” 7 10. In Lalit Popli vs. Canara Bank and others, (2003) 3 SCC 583, the Apex Court considered the difference in approach and objective in criminal proceedings and disciplinary proceedings and it has been held therein as follows: “The approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of ‘proof beyond doubt’ has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.” 11. The principles as stated above have been consistently followed by the Supreme Court in all the subsequent decisions as well. In a recent judgment in U.P. SRTC vrs. Suresh Chand Sharma ( 2010) 6 SCC 555, also the above position has been quoted with the approval and they have been affirmed. Thus the settled law on the point is that it is the exclusive domain of the disciplinary authority to consider the evidence on record and record findings whether the 8 charge has been proved or not. Complicated and technical rules of evidence have no application to the disciplinary proceedings and the inquiring authority is only to consider the material on record, with fair common sense. It is open to the inquiry authority to receive and place on record all the necessary, relevant, cogent ad acceptable material facts though not proved strictly in conformity with the Evidence Act. The only restriction is that the materials must be germane and relevant to the facts in issue. The most important factors in the whole process and the proceedings is that there shall be no violation of the principles of natural justice and that the proceedings should be conducted in the prescribed manner. The standard of proof is not proof beyond reasonable doubt but the preponderance of probability tending to draw an inference that the facts must be more probable ( Maharastra State Board of Secondary and Higher Secondary Education vrs. K.S.Gandhi & others, reported in (1991) 2 SCC 716 ). 12. The jurisdiction of the High Court under Article 226 of the Constitution of India is circumscribed by the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. The scope of judicial review shall not be extended to the extent of re-appreciating the evidence so as to arrive at different conclusion. The judicial review is not akin to consideration of the case on merits as an appellate authority. 9 13. In B.C. Chaturvedi vs. Union of India and others, (1995) 6 SCC 749, it has been held that once the disciplinary authority accepts the evidence and conclusion is supported by that evidence, the disciplinary authority is entitled to hold the delinquent official guilty of the charge and that the Appellate Authority has co-extensive power to re-appreciate the evidence or the nature of the punishment. However, the power of judicial review in such matters is limited. It does not act as an Appellate Authority. There is no re- appreciation of evidence and, therefore, there is no question of entering into independent findings on the evidence. The Court is concerned with the question as to whether rules of the natural justice have been violated or whether there is any violation of the statutory rules and whether the finding is based on evidence. If the finding is one which a reasonable person would have reached, the Court may not interference with such finding. It has also been held that adequacy or reliability of evidence is not a matter for the Court to consider. To quote: “When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. 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. 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 10 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 that case.” 14. In High Court of Judicature at Bombay through its Registrar vs. Shashikant S. Patil and another, (2000) 1 SCC 416, the principle has been reiterated as follows: “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 enquiry 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 it cannot be overlooked that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry 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 under Article 226 of the Constitution.” 11 15. The inquiry officer in the instant case has acted only in accordance with the procedure prescribed under the Rules. There is no violation of principles of natural justice. The inference drawn by him are based on materials available on record. The contention that in the absence of breath analyser test, it cannot be established that the employee was under the influence of alcohol cannot be appreciated since there is cogent evidence otherwise available to prove the charge. 16. Therefore, we do not find any merit in the writ petition and it is accordingly dismissed, so also the pending applications, if any. (Justice Kurian Joseph), Chief Justice 6th May, 2011. (Justice V.K. Ahuja), (tr) Judge.