1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP 510 of 1997 Reserved on 28.04.2010 Decided on May 13, 2010 ___________________________________________________ Tulsi Devi & others …Petitioners Versus H.R.T.C. and others …Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?Yes/No For the Petitioners: Mr. Surinder Sharma, Advocate. For respondents: Mr. H.S. Rawat, Advocate. Justice R.B. Misra,J. The present writ petition has been filed with prayer to quash the dismissal order dated 27.7.1992 of writ petitioner from service, order dated 4.11.1992 (Annexure P-7) rejecting his appeal and order dated 24.6.1997 dismissing the OA No. 1484/1992 of writ petitioner by the H.P. State Administrative Tribunal. The original writ petitioner namely late Shri Som Nath has preferred O.A. No. 1484/92 before erstwhile H.P. State Administrative Tribunal challenging the following orders: (i) Memorandum dated 27.3.1990. 2 (ii) Enquiry Report dated 19.6.1992; (iii) Order dated 20.6.1992 passed by respondent No.2. (iv) Order dated 4.11.1992 reported to have been passed by Managing Director of respondent Corporation. 2. The petition was adjudicated and Original Application No. 1484 of 1992 was dismissed by Learned Tribunal vide impugned order dated 24.6.1997. 3. In order to adjudicate the present writ petition it is necessary to give the factual background of the case. The writ petitioner was employed as Conductor in Himachal Pradesh Road Transport Corporation (in short HPRTC), Pathankot on 17.6.1982, thereafter he was transferred to HPRTC, Hamirpur, where he joined on 4.9.1986. On 12.1.1990, when he was coming with HRTC Bus No. HP-22-0541 from Haridwar to Hamirpur, the bus was checked by the Flying Squad of HPRTC at a place known as Bhota, when out of 15 passengers travelling therein, the said bus, 4 passengers were found without tickets from Una to Hamirpur. Enquiries revealed that the writ petitioner had charged bus fare amounting Rs. 68/- from them but for that he did not issue tickets, as such, had allegedly mis-appropriated the revenue. The writ petitioner was dealt with departmentally and was held guilty of the charges. A copy of the enquiry report supplied to him by registered communication No. HRTC-HMR-Estt/Vig.92-2818 dated 20.06.1992 (Annexure-P/3 to the writ petition), which was duly served to him vide acknowledgement (Annexure-R/1). The reply to the said show cause notice was also submitted by him vide Annexure-P/4 to the writ petition stating that the enquiry report was 3 defective. The enquiry report sent to the writ petitioner vide Annexure P/3 had also been shown as Annexure P/2 to the writ petition. 4. As has been observed the Learned Tribunal that the enquiry report was submitted after observing the relevant provisions governing the departmental enquiry. Learned Tribunal has derived correct impression on the basis of evidence on record that the writ petitioner was guilty of mis-appropriation of Corporation revenue and in a fraudulent manner has collected the bus fare from the passengers without issuing tickets to them. 5. According to Learned Tribunal, the departmental enquiry in question is an enquiry which cannot be said to be based on no evidence. The writ petitioner was served with a charge-sheet on 27.3.1990 and after full fledged enquiry, the enquiry officer submitted his report on 19.6.1992 by proposing a penalty of dismissal on 20.6.1992. The writ petitioner was also afforded opportunity to submit his reply to the proposed penalty of dismissal on 7.7.1992 and ultimately the dismissal order dated 27.7.1992 was passed by Divisional Manager HPRTC. 6. Following submissions have mainly been advanced on behalf of the petitioner:- (i) The two Inspectors accompanying R.K. Sharma, Flying Squad Inspector were not examined as such the mandatory provision of departmentally enquiry were not observed. (ii) The enquiry was in derogation to the principle of natural justice. 4 (iii) Dismissal order is based on no evidence. (iv) There is violation of mandatory provision of sub Rules 16 and 17 of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as much as the delinquent official should have been asked to produce his witnesses only after he was given an opportunity to state his defence either orally or in writing. Since the delinquent official/writ petitioner was asked to lead his evidence immediately after the closure of the case by the disciplinary authority and subsequently the defence statement was ordered to be submitted. Such a procedure is in-contravention of the mandatory provisions of Rule 14 of CCS (CCA) Rules, 1965 and renders the enquiry illegal and is, therefore, liable to be quashed. (v) The penalty imposed was disproportionate to the charges leveled against the writ petitioner. 7. Regarding re-appreciation of evidence by the High Court, the Supreme Court in the case of High Court of judicature at Bombay through its Registrar Vs. Udaysigh s/o Ganpatrao Naik Nimbalkar & Ors., AIR 1997 SC 2286, clearly held as follows:- “….In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the 5 conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of the Court.” The Supreme Court in Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Ors., (1997) 3 SCC 657 held as follows:- “Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 225 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as it is a Court of first appeal and reversed 6 the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first Appellate Court, is wholly illegal and cannot be sustained.” In R.S. Saini Vs. State of Punjab, (1999) 8 SCC 90, the Supreme Court observed as follows:- “Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiry authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a 7 reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.” In the case of Lalit Popli Vs. Canera Bank & Ors., (2003) 3 SCC 583, the Supreme Court observed as follows:- “while exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.” 8. It has consistently been held that strict Rules of evidence are not applicable in a departmental enquiry. In the case of Bank of India Vs. Degala Suryanaraina, (1996) 5 SCC 762, the Apex Court has observed:- “Strict Rules of evidence are not applicable to departmental enquiry against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity 8 may arrive at a finding upholding the gravamen of the charge against the delinquent officer.” In State of Haryana vs. Rattan Singh, AIR 1977 SC 1512, the Supreme Court has laid down that “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.” Similarly view has been reiterated by the Apex Court in South Bengal State Transport Corporation Vs. Span Kumar Mitra &Ors., (2006) 2 SCC 584). In Lalit Popli Vs. Canara Bank & Ors. AIR 2003 SC 1795 the Apex Court held that preponderance of probability and some material on record are necessary to arrive at the conclusion whether or not the delinquent had committed the misconduct. Standard of proof, the mode of enquiry, and rules governing the enquiry, and a trial are completely different. Similarly, a Constitution Bench of the Supreme Court in State of Madhya Pradesh Vs.s Chintaman Sadashiva Vaishapayan, AIR 1961 SC 1623, held that in domestic inquiry the procedure followed in the Courts is not required to be followed. In Naresh Gonind Vaze Vs. Government of Maharastra & Ors., (2008) 1 SCC 514, it has been held that the Inquiry Officer appointed to inquire into the charges levelled against a delinquent officer is neither a Court nor the provisions of the Evidence Act are applicable. In Roop Singh Negi Vs. Punjab National Bank & Ors., (2009) 2 SCC 570, the Apex Court held that a departmental proceeding is a 9 quasi-judicial proceeding and the enquiry officer performs a quasi- judicial function. In departmental enquiry the C.P.C. and Evidence Act are not applicable. 9. The question of interference on the quantum of punishment, has been considered by the Supreme Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. (Vide Bhagat Ram Vs. State of Himachal Pradesh & Ors., AIR 1983SC 454; Ranjit Thakur Vs. Union of India & Ors., AIR 1987 SC 2386; Union of India & Ors. Vs. Giriraj Sharma, AIR 1994 SC 215; S.K. Giri Vs. Home Secretary, Ministry of Home Affiars & Ors., 1995 Suppl (3) SCC 519; Bishan Singh & Ors. Vs. State of Punjab & Anr., (1996) 10 SCC 461; and B.C. Chaturvedi Vs. Union of India & Ors., AIR 1996 SC 484). In Ranjeet Thakur (supra), the Apex Court observed as under:- “But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It 10 cannot be allowed to remain uncorrected in judicial review.” The said judgment has been approved and followed by the Apex Court in Union of India & Ors. Vs. G. Ganayutham, AIR 1997 SC 3387, and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated. In B.C. Chaturvedi (supra), after examining various earlier decisions of the Supreme Court, the Court observed that in exercise of the Powers of judicial review, the Court cannot “normally” substitute its own conclusion or penalty. However, if the penalty imposed by an Authority “shocks the conscience” of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. [Vide Giriraj Sharma (supra]. The Court may further examine the effect, if order is set aside or substituted by some other penalty. In G. Ganayutham (supra), the Apex Court has considered the entire law on the subject and compared the Indian Law with English, Australian and Canadian Laws, and held that in case the Court comes to the conclusion that the punishment awarded is disproportionate or the Disciplinary Authority was irrational in imposing the punishment, the punishment cannot be quashed as even then the matter has to be 11 remitted back to the appropriate authority for reconsideration and it is only in very rare cases that the Court might- to shorten the litigation- think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. In Aniltej Singh Dhaliwal (supra); U.P.S.R.T.C. & Ors. Vs. A.K. Parul, (1998) 9 SCC 416; and Teri Oat Estates (P) Ltd. Vs. U.T. , Chandigarh & Ors., (2004) 2 SCC 130, the Apex Court has taken the same view. In V. Ramana Vs. A.P.S.R.T.C & Ors., (2005) 7 SCC 338, the Supreme Court reconsidered the whole issue, compared the Indian Law with English Law on judicial review and after placing reliance on large number of judgments, came to the conclusion that every administrative order should be rational and reasonable and the order should not suffer from any arbitrariness. The scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be “shocking to the conscious of the Court, in the sense that it was in defiance of logic or moral standards.” In a normal course, if the punishment imposed is shockingly disproportionately, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, it may, in exceptional and rare cases, itself can impose appropriate punishment by recording cogent reasons in support thereof. In the case of State of Meghalaya & Ors. Vs. Mecken Singh N. Marak, (2008) 7 SCC 580, the Supreme Court has observed that a Court or a Tribunal while dealing with the quantum of punishment has 12 to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocks the conscience of the Court, cannot be subjected to judicial review. In State of Madhya Pradesh & Ors. Vs. Hazarilal, (2008) 3 SCC 273, the Apex Court held that the issue of proportionality may always be determined by the Court and Court is clear with the order of determination. While deciding the said case, Apex Court placed reliance on its earlier judgment in Coimbatore District Central Co- operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association & Anr., (2007) 4 SCC 669; and M.P. Gangadharan & Anr. Vs. State of Kerala & Ors., AIR 2006 SC 2360. (See also Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. P. Jayaram Reddy, (2009) 2 SCC 681). 10. On examination of record, it appears that enquiry officer has examined Chief Inspector, who was heading the flying squad and also examined Bhagwan Dass, a Junior Assistant of HPRTC. Enquiry 13 officer has also examined defence witnesses and only on the basis of witnesses and material on record, he came to the conclusion that the charges leveled against the writ petitioner were proved. As such this case cannot be a case of no evidence. Disciplinary authority is a final authority to make its mind about the sufficiency of the evidences. The delinquent cannot question about the sufficiency or insufficiency of the evidence when the evidences adduced before the enquiry officer, are sufficient to prove the guilty of the delinquent official. The Court/Tribunal in exercise of its powers of judicial review does not act as an Appellate Authority to make a reappraisal the evidences to arrive at its own independent findings on the basis of evidences available on the record. 11. During the course of enquiry the delinquent has never protested that the opportunity of hearing was not provided to him. More so, the delinquent was given the sufficient opportunity to nominate his defence counsel and to adduce the evidence of his choice. Nothing has been argued or brought to the notice of this Court to show as to how and in what manner the procedure of departmental enquiry was defective. Mere allegation that there was lack of observance of legal procedure shall not be conclusive that the departmental enquiry has been vitiated. Nothing has been argued or pointed out showing in what manner the non-compliance norm or provisions, if any, as alleged by the writ petitioner has prejudiced the departmental enquiry as well as disciplinary proceeding. No effort was made on behalf of the writ petitioner/delinquent official to show as to how the prejudice has been caused to him in the disciplinary proceeding in question. 14 12. During the course of enquiry it was also noted that writ petitioner was departmentally punished about 17 times for various misconduct, during his service career 13. We have gone through impugned order and have also perused the contents of material on record. We are of the considered view that the disciplinary enquiry has been made in consonance to the provisions of principle of natural justice and by following the proper procedure of departmental proceedings. The enquiry report has rightly been finally accepted by the disciplinary authority. This Court cannot sit as an Appellate Authority over the findings of the disciplinary authority. There is no scope of any interference in the decision of Learned Tribunal which has also rightly not interfered in the findings of the disciplinary authority. The punishment imposed in the facts and circumstances does not shock the conscience of the Court. Therefore, the writ petition being devoid of any merits is dismissed. (Justice Kurian Joseph), Chief Justice May 13, 2010 (Justice R.B. Misra) (Purohit) Judge