IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 3818/2008 (OA 1557/96) Date of Decision : April 17, 2009 Sh. Prithvi Chand Petitioner Versus Himachal Road Transport Corporation and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Ranana Parmar, Advocate, for the petitioner. For the respondents : Mr. Adarsh Sharma, Advocate, for the respondents. Sanjay Karol, J. (Oral) The petitioner has prayed for the quashing of disciplinary proceedings (Charge sheet, inquiry report and office order dated 12.9.1996) passed by the respondents imposing a penalty of compulsory retirement from service. While working as a Senior Store Keeper with the respondent- corporation disciplinary proceedings were initiated against the petitioner for the alleged misconduct. Vide Memorandum dated 14.8.1986 (Annexure A-1) petitioner was served the memorandum and articles of charges. The charge essentially being that there had been pilferage of the stores/property of the respondents and that 1 Whether reports of Local Papers may be allowed to see the judgment? 2 the petitioner had been negligent in performance of his duties and disobeyance of orders of his superiors. The matter was inquired into by Inquiry Officer who submitted his inquiry report (Annexure A-3). Based on the same, a show cause memorandum dated 27.11.1995, was served upon the petitioner proposing to impose a penalty of compulsory retirement from service. The delinquent officer responded to the same and inter alia pleaded violation of principles of natural justice in as much as neither did the Inquiry Officer allow examination of witnesses, list of which had been submitted to him, nor was the report of the Inquiry Officer provided to him. The disciplinary authority, after taking into account the circumstances and the material placed before them, imposed penalty of compulsory retirement from service vide office Order dated 12.9.1996. Respondents’ action has been assailed in the present petition, inter alia on various grounds. When the matter was taken up for hearing Ms. Ranjana Parmar, learned counsel for the petitioner invited my attention to the inquiry report to contend that whereas charge No. 1 was found not to have been proved against the petitioner, while inquiring into charge No. 2, the Inquiry Officer relied upon the material obtained behind the petitioner’s back to conclude that the charge stood proved. 3 Mr. Adarsh Sharma, learned counsel for the respondents on the other hand has vehemently opposed the petition and supported the respondents’ action. As per the memorandum of articles two charges were framed against the petitioner: Charge No. 1. “Pilferage of corporation stores/property.” As per inquiry report the charge No. 1 was not proved to have been proved by the Inquiry Officer. The operative part of the report is reproduced as under: “This charge is not proved, as nothing has been adduced during the enquiry to substant that he has pilferage the Corporation Store/property.” Charge No.2. “Neligence in the performance of duties and dis-obedience of orders of the superiors.” “Charge No. II :- Shri Prithivi Chand, SSK while serving in HRTC Una as ASK during 3/77 to 25.3.1985 has also failed to verify the bill No. 9510 dated 31.3.84, bill No. 8905 dated 28.6.84, bill No. 8930 dated 18.7.84 and bill No. 10652 dated 15.2.85, which were duly marked to him but he has deliberately failed to verify these bills with the purchase day book stores ledgers and report the shortages of steam coal to the Service Manager/Regional Manager, and also did not bother to move the case for short supply of steam coal against these invoices with the concerned authorities i.e. H.P. Shimla Small Scale Industry & Export Corpr. Shimla. These fraudulent actions and negligence in the discharge of duties has caused financial loss to the corporation to the tune of Rs. 9519-53 paise, as noted in the charge No. 1, apart from this, the above bills/invoices were not handed over to his 4 successor by the said Shri Prithivi Chand, SSK and were found in the Store section without taking any appropriate action by him clearly shows that said Shri Prithivi Chand, SSK, did not discharge duties with due care, diligence, satisfaction and as well as faithfully as an employee of the Corporation. Thus the charge of negligence in the performance of assigned duty, as well as this obedience of orders of the superiors is against him.” (Emphasis supplied) It is thus evident that the petitioner was charged for having failed to verify only four bills i.e. (i) Bill No. 9510 dated 31.3.84; (ii) Bill No. 8905 dated 28.6.84; (iii) Bill No. 8930 dated 18.7.84 and (iv) Bill No. 10652 dated 15.2.85 and thus caused financial loss to the Corporation to the tune of Rs. 9519.53p. Ms. Ranjana Parmar, learned counsel for the petitioner pointed out that the report of Inquiry Officer does not pertain to the said bills but the Inquiry Officer has returned his findings with regard to the bills No. 1416 and 1333 dated 31.3.1979. These bills did not form part of the charge. Mr. Adarsh Sharma, learned counsel for the respondents has fairly conceded to the same. It is a settled position of law that the rules of natural justice can be considered to have been violated only if the authority concerned acts upon information collected by it and the said information has not been disclosed to the party against whom the material has been used. [State of Assam and another versus Mahendra Kumar Dass and others, 1970 (1) SCC 709 ] 5 It is a settled position of law that where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. [A.K. Kalra versus Project and Equipment Corporation of India Ltd., (1984) 3 SCC 316] It is a settled position of law that domestic enquiry being perverse and vitiated by non-application of mind, the only course open to the Court is to set aside the order of dismissal based on such enquiry and grant the consequential relief of reinstatement in service. [Rajinder Kumar Kindra versus Delhi Administration through Secretary (Labour) and others, (1984) 4 SCC 635] It is also settled position of law that the jurisdiction of the Court to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Court cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Court has no power to substitute its own discretion for that of the authority. The Court also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based 6 on evidence even if some of it is found to be irrelevant or extraneous to the matter. If there has been an enquiry consistent with the rules and in accordance with the principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. [Union of India versus Parma Nanda, (1989) 2 SCC 177] In the present case it is not so. The Apex Court in Union of India and others versus Mohd. Ramzan Khan, (1991) 1 SCC 588 has held as under: “To have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure.” The Apex Court in State Bank of India and others versus D.C. Aggarwal and another, (1993) 1 SCC 13 has held as under: “The disciplinary authority, while imposing punishment, major or minor, cannot act on material which is neither supplied nor shown to the delinquent. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, cannot be countenanced. Procedural fairness is as much essence of right and liberty as the substantive law itself.” The Apex Court in Sher Bahadur versus Union of India and others, (2002) 7 SCC 142 has held as under: “Evidence which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in 7 his report, “in view of oral, documentary and circumstantial evidence as adduced in the enquiry”, would not in principle satisfy the rule of sufficiency of evidence. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter was proved, is erroneous. It is clearly a case of finding the appellant guilty of the charge without having any evidence to link the appellant with the alleged misconduct. Therefore, the order of the disciplinary authority, under challenge, cannot be sustained. The Apex Court in Nehru Yuva Kendra Sangathan versus Mehbub Alam Lashkar, (2008) 2 SCC 479 has held that where the order of termination which was indisputably based on the finding that an enquiry had been made behind the back of the delinquent officer the same could not be said to be in accordance with the law making the foundation for terminating the employee. It is thus evident that with regard to the four bills for which the petitioner was specifically charged, there is no finding of alleged misconduct by the Inquiry Officer. However the Inquiry Officer has returned findings with regard to bill Nos. 1416 and 1333 both dated 31.3.1979. The same did not form part of the articles of charge issued to the petitioner. The charge was not of general nature but was specific and confined to only few bills. The Inquiry Officer could not have collected material behind the petitioner’s back and relied upon such extraneous material to return the findings for misconduct 8 for which the petitioner was not even charged. It could not have been subject matter of inquiry. In the absence of a specific charge having been proven against the delinquent officer the disciplinary authority could not have taken the consequential disciplinary action of imposing the penalty of compulsory retirement from service. It cannot be said that the authority had applied its mind and taken action in accordance with law. The penalty could have been imposed only if the specific charge against the delinquent officer stood proved conclusively by the Inquiry Officer. As such action taken by the respondent in terms of office order dated 12.9.1996 is illegal. For the aforesaid reasons the present petition is allowed. Office order dated 12.9.1996 is quashed. Petitioner shall be entitled to all consequential benefits in accordance with law. Petition is allowed subject to payment of cost of Rs. 5,500/- (Rupees five thousand and five hundred only). (Sanjay Karol), Judge. April 17, 2009 (PK)