1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP NO. 28 of 2003 Date of decision: 4.6.2008 T.S. Parshad …Petitioner Vs Himachal Road Transport Corporation & anr ….Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? For the Petitioner: Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Ashok Sharma Advocate. R.B. Misra, J. (Oral) Heard Mr. Ajay Sharma, learned counsel for the petitioner and Mr. Ashok Sharma, learned counsel for the respondents. 2. In the present writ petition, the order dated 7.6.2002 passed in OA No. 952/1992 by learned H.P. State Administrative Tribunal ( in short the “learned Tribunal”) has been challenged whereby in the above mentioned OA petitioner has assailed the inquiry report, penalty order by way of removing the petitioner from service, order of appellate authority and the prayer for reinstating the petitioner with consequential benefit in the service which was rejected. 3. It appears that the petitioner was charge sheeted on 10.8.1988 for allegedly consuming liquor while on duty on 3.8.1988. Inquiry was conducted in consonance to the prevailing rules and on 10.7.1990, inquiry officer issued a show cause notice to the petitioner proposing major penalty indicating his removal from service. Keeping in view the response of the notice, a penalty was imposed on 15.12.1990 Whether the reporters of the local papers may be allowed to see the Judgment ?. 2 thereby removing the petitioner from service. Appeal preferred against such order was also rejected by the Appellate authority. 4. Petitioner since was originally appointed as driver on 1.5.1980, however, was placed under suspension on 10.8.1988 on the ground of taking liquor on duty as a driver. Consequent upon consumption of liquor, petitioner was not in a position to drive the vehicle on 3.8.1988. The concerned inspector has informed the Chief Inspector that the petitioner had consumed liquor and since was not in a position to drive the vehicle, therefore, some other substitute was sent to do the work by way of making alternative arrangement. Petitioner was taken to the police station and was got medically examined. 5. While adjudicating the original application, learned Tribunal had observed that the court/Tribunal is not an Appellate authority and has not to make reappraisal of evidences unless it is perverse or untenable and the learned court/Tribunal has not to interfere in the fact finding decision of the Disciplinary authority. The learned Tribunal has made observations which are extracted as below: “5. In a departmental proceedings the disciplinary authority is the sole judge of evidence and in case of appeal is presented to the appellate authority, appellate authority has also the powers and jurisdiction to re-appreciate the evidence and came to its own conclusion on facts, being the sole fact finding authority. Once fact finding of evidence based on appreciation of evidence are recorded, the Court or Tribunal cannot normally interfere with those actual finding unless it is that the recorded findings were based either on no evidence or that the findings were wholly reverse and legally untenable. Adequacy or inadequacy of the evidence is not permitted to be canvassed before the Courts/Tribunal. The Courts/Tribunal do not sit as an appellate authority over the factual finding recorded while exercising the powers of judicial review the court cannot normally subjecting substitute its own conclusion that record to the guilt on delinquent. The Hon’ble Apex Court in Union of India Vs. Parma Nand 1989 SCC 177: 1989 3 SCC (L&S) 303: 1989 (10) ATC 30: 1989(2) SCR 19.1 p(33) has observed that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with a appellate jurisdiction. The Tribunal would interfere with the findings of the enquiry officer or punishment imposed by competent authority where they are not arbitrary or utterly perverse. A similar view has been taken by the Hon’ble Apex Court in V.C. Chaturvedi Vs. Union of India 1995 (6) SCC 749 the Hon’ble Apex Court observed that it is the disciplinary authority which is invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute their own conclusion on penalty and impose some other penalty unless the punishment is such as would shock the conscience of the High Court/Tribunal. This decision has again been reiterated in Union of India Vs. Ganayutham 1997 SCC 463. Any departmental proceedings the strict procedure as laid down in the Evidence Act is not to be applied. The disciplinary authority has to weigh its decision on the basis of preponderance of probability in departmental inquiry nor strict proof is necessary as in criminal trial and rule of evidence and prove beyond doubt as insisted upon in criminal trial cannot insisted preponderance or probability and conclusion drawn and reasonable manner from evidence on record is sufficient for the purpose of departmental inquiry. Sufficiency of evidence and correctness of conclusion drawn in the departmental enquiry is not for the courts to examine though it may be possible to arrive at different conclusion. Thus Tribunal is not as a appellate court over the disciplinary authority. The manner in consistency and contradictions in the evidence cannot be made grounds for interferes by Courts or Tribunal when there is no infirmity in the approach of competent authority in accepting the report and in appreciation of evidence recorded in the enquiry and the Tribunal cannot in exercise of judicial review interfere with findings of guilt by taking a different view. It is the 4 exclusive do mine of the disciplinary authority to consider the fact finding whether charge has been proved or not. It is settled law that under judicial review the court /Tribunal has no power to trench on the jurisdiction to appreciate the evidence and arrive its own conclusion.” In view of the above observation, the learned Tribunal has found that the OA preferred by the petitioner was devoid of merit and dismissed the same. 6. In Bank of India and another Vs. Degala Suryanarayan (1999) 5 SCC 762 whereby it was held that while exercising the power of judicial review the court has no power to interfere the findings of fact except in a case of mala fide or perversity and the courts cannot embark upon re-appreciating the evidence and weigh the same like an Appellate Authority. According to learned Tribunal, in the present case, since no malafide or perversity in conducting the enquiry or in arriving conclusions has been pointed out and that being so, it is not proposed to re-evaluate the evidence. The relevant paragraphs 10 and 11 are quoted as below:- “The disciplinary authority on receiving the report of the enquiry officer may or may not agree with the findings recorded by the latter. In case of disagreement, the disciplinary authority has to record the reasons for disagreement and then to record its own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry and report. ( Para 10) Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in 5 departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority.” ( Para 11) 7. In Regional Manager, U.P. SRTC, Etawah and others Vs. Hoti Lal and another (2003) 3 SCC 605 the scope of judicial review to test the proportionality is very limited and restricted to exceptional cases. The court must give reasons for holding the punishment to be not commensurate with the charges or offences. A mere statement that the punishment was disproportionate, would not be treated as sufficient. Not only the amount involved, but the mental status of the delinquent, type of duty and some relevant circumstances have to be taken into consideration while deciding the proportionality of punishment. It has also been observed in Hoti Lal’s case (supra) if the delinquent employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, the matter should be dealt with iron hands and not with leniency. In Hoti Lal (supra), while working as a bus conductor in UPSRTC was involved for the offence of carrying on ticketless passengers in the bus and was said to have been involved in the misconduct which was held to be sufficient to award the punishment for his removal. 8. In Hoti Lal’s case (supra) the Supreme Court has followed its earlier decision which is necessary to be referred as below:- In Union of India Vs. G. Ganayutham (1997) 7 SCC 463, it was held as follows: (SCC pp. 478-79, paras 31-34) 6 “31. The current position of proportionality in administrative law in England and India can be summarized as follows:- (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., (1948) 1 KB 223 test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action ws not bona fide. The court would also consider whether the decisinw as absurd or perverse. The court would not, however, go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury (supra) test.” 9. In V. Ramana Vs. A.P. SRTC and others (2005) 7 SCC 338 the Supreme Court reiterating the Wednesbury principles, has elaborated the scope of judicial review and has held by observing that punishment imposed by the disciplinary authority or the appellate authority cannot be interfered with unless it shocks to the conscience of the court/Tribunal. In cases so falling within the scope of judicial review, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the penalty imposed. However, only in exceptional cases, in order to shorten litigation, the court/Tribunal may impose appropriate punishment by a speaking order. The relevant paragraphs of V. Ramana case (supra) are as below:- “A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The appellant’s conduct in collecting fare at the designated place and not collecting fare from persons who had already travelled were in violation of various 7 regulations contained in the A.P. State Road Transport Corporation Employees (Conduct) Regulations, 1963. (para 4) Interference with the quantum of punishment cannot be a routine matter. ( para 6) Case-law shows that the court should not interfere with the administrator’s decision unless it was illogical or suffered 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. 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 for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. ( para 11) To put it differently 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 shorten litigation, 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. ( para 12)” 10. In U.P. SRTC Vs. Ram Kishan Arora (2007) 4 SCC 627 the Supreme Court has observed as under:- “It is now well settled that commission of a criminal breach of trust by a person holding a position of trust is a misconduct of serious nature. The charges levelled against the respondent having been proved, it is held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution was not at all justified in reducing the punishment and imposing the punishment of stoppage of two increments only. (para-6) 8 The High Court has not arrived at the conclusion that the quantum of punishment imposed upon the respondent was disproportionate to the gravity of his misconduct. Even in such a situation, the course which would have been ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the question in regard to the quantum of punishment. The High Court without assigning any reason could not have substituted its opinion to that of the disciplinary authority. ( Para 7)” 11. In Ram Kishan Arora’s case (supra), the employee was a bus conductor who was found guilty of misconduct of serious nature (carrying several passengers without ticket) and in obstructing the inspection team from checking process and was awarded punishment of removal from service by the disciplinary authority consequent upon the outcome of the departmental inquiry, however, treating the punishment as disproportionate to the gravity of misconduct and reduction of the punishment of removal to the stoppage of two increments without assigning any reason by the High Court was held to be unjustified and as observed by the Supreme Court in case finding the punishment to be disproportionate, the course ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the quantum of punishment. 12. In our considered view , the observations of the learned Tribunal is correct. The Court/Tribunal has not to sit as an appellate authority and has not to make reappraisal of the evidences in exercise of the judicial review unless the findings are perverse and based on no evidence. The court/Tribunal has not to re-evaluate the quantum of punishment indicated by the disciplinary authority unless it shocks the conscience of the court. 13. In the facts and circumstances, the petitioner has undisputedly consumed liquor on duty and during the course of 9 disciplinary inquiry he was found guilty for having been involved in such offence/unusual activity of consuming liquor. Therefore, the inquiry report arrived at on the basis of documentary as well as material evidences, affirmed by the disciplinary authority and upheld by the appellate authority, cannot be interfered with. In view of the above observations, the writ petition being devoid of merit, is dismissed. ( R.B.Misra),J,. 4th June 2008(sl) ( Sanjay Karol ),J.