IN THE MATTER OF AN APPLCIATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CIVIL WRIT JURISDICTION CASE No.8741 of 1995 RAMAKANT PANDEY S/O LATE ANIRUDH PANDEY, R/O VILLAGE-MAHUI, PS- RAM NAGAR, DISTT- WEST CHAMPARAN---------------------PETITIONER Versus 1. STATE OF BIHAR 2. IRRIGATION COMMISSIONER, WATER RESOURCES DEPTT. SECRETARIAT, PATNA 3. DIRECTOR-CUM-REVENUE ADMINISTRATOR, WATER RESOURCES DEPTT. SICHAI BHAWAN, PATNA 4. SPECIAL OFFICER-CUM-DEPTY SECY. WATER RESOURCES DEPTT. SICHAI BHAWAN, PATNA 5. DEPUTY COLLECTOR, REVENUE DIVISION, GANDAK PROJECT, BETTIAH, DISTT- WEST CHAMPARAN 6. ASSISTANT REVENUE OFFICER, REVENUE DIVISION BETTIAH, DISTT-WEST CHAMPARAN 7. CIRCLE OFFICER, REVENUE CIRCLE, TRIVENI CIRCLE, RAM NAGAR, DISTT- WEST CHAMPARAN------RESPONDENTS ----------- For the Petitioner: Mr. S.S.Dwivedi, Sr. Advocate Sangeeta Sharma,Advocate For the State: Mr. A.A.G.-3 --------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J. Order of dismissal dated 19.8.1995 contained in annexure-19 is being challenged in the present writ application. In addition to that petitioner wants payment of his arrears of salary, pay revision etc. etc. after quashing the order of dismissal. 2. The background leading to the dismissal of the petitioner is being reproduced here. Petitioner was appointed as Revenue Tahashildar in the year 1964. In 1974 he was transferred to Bhairoganj Tahshil at Gandak Project under the revenue division of West Champaran. While he was working at the said place he was put under suspension on 4.3.1978. The reason for his suspension was embezzlement of government fund by non-deposit of the revenue collected from that revenue circle over a period of - 2 - time and occasions and not obeying the order of transfer or defying the direction of the superior authority. Details of the charges would emerge from perusal of annexure-15, which is rather detailed charge. Enquiry was held which the petitioner tried to scuttle by non-cooperation to the hilt. He hung on to his post and place of posting for a long time and refused to hand over charge and the documents. Even a criminal case had been instituted against him. It is after much effort that the petitioner could be ousted from his place of posting. In fact, even a Magistrate had to be deployed to take over charge and draw an inventory, since the petitioner did not cooperate. After much effort the enquiry was conducted, petitioner participated and based on the report of the enquiry officer, which held the petitioner guilty, punishment of dismissal was passed. 3. Learned Senior counsel appearing for the petitioner put a valiant effort to demolish the proceeding conducted against the petitioner as well as tried to establish the so called infirmity committed in the enquiry, the benefit of which, according to him, must accrue to the delinquent. According to him there was no evidence and document to hold the petitioner guilty. Petitioner was not given the so called documents demanded by him. Even supplementary material has been used to declare the petitioner guilty and it is not open to the State to go beyond the punishment order in justifying the same in the present writ application. - 3 - 4. Looking at the nature of challenge which was sought to be set up against the departmental proceeding, the Court directed the State counsel to produce the original record relating to the conduct of the departmental enquiry against the petitioner. This was to verify the authenticity of many a things stated or pleaded in the writ application, which on close scrutiny are not found to be correct. Statements made in the writ application and the actual states of affairs in the conduct of the departmental enquiry do not match. Some of the statements, in fact, were deliberately made to make out an arguable case. On closer scrutiny they are found not to be true. 5. It has emerged from the records that the departmental proceeding had to be conducted in the background of inspections carried out by the superiors on receipt of certain complaints that the petitioner was not depositing the collected revenue with the respondent State authority. In those inspections the petitioner had participated. There are signatures of the petitioner on the inspection reports acknowledging what was recorded therein and some money was even deposited by the petitioner. He tried to take a plea that since the tax collectors had failed to deposit the collected amount with him he did not deposit the money with the treasury. Effort was made to put the entire blame on the tax collectors on a plea that he had no effective control over them, if they defalcated. But the fact is otherwise which is corroborated during the course of enquiry that it was the - 4 - petitioner and petitioner alone to blame for his conduct and the charges drawn up against him were duly established. 6. On the question of non-supply of document it is evident from the record that originally the petitioner demanded four documents to defend himself but this demand kept increasing as the enquiry unfolded. Some of those documents demanded related to the period many many decades prior to the posting of the petitioner. What was the relevance of those documents was never indicated by the petitioner. Though one thing is evident that those demands were made more with the object of staggering the enquiry than for any bona fide reason. The State has been correct in saying that not every document could be supplied to the petitioner but they were made available to him for inspection but then that was not the object of the petitioner. 7. Evidence has come that the petitioner had very conveniently concealed certain governmental records and later on tried to demand copies of those documents having full knowledge that the respondents would not be in a position to supply those documents. There are circumstances which were duly pointed out by the State counsel from the record that the petitioner had knowledge of those documents and tried to use it in the enquiry by using it in his defence. How the petitioner had access when the State did not is a pointer about the missing documents and the office record of which petitioner was the custodian at the relevant time. - 5 - 8. One of the grounds urged on behalf of the State is that the enquiry was held in presence of the petitioner and there was conflicting stand taken with regard to the charges at various levels before the various authorities. Many instances have been pointed out in this regard which are not being dealt with in detail because they do not have much relevance to the final adjudication except to the extent that the defence of the petitioner was a variable component and it varied from forum to forum. 9. Allegation made by the petitioner that he was not given subsistence allowance and therefore the whole proceeding must fail has also been rebutted by the State by demonstrating that subsistence allowance was being paid to the petitioner. It was only towards the fag end of the proceeding in last couple of years he intentionally chose not to claim or receive the subsistence allowance since the petitioner was being given subsistence allowance on the basis of the pay scale he was drawing at the time of suspension which under went revision. He wanted subsistence allowance on the basis of new pay scale. According to learned counsel for the State the said benefit could not be claimed in view of the principle decided by the Hon’ble Supreme Court in the case of Union of India vrs. R.K. Chopra reported in (2010) 2 SCC 763. 10. Learned counsel for the State further submits that out of the varied charges even if one charge is proved then it is good enough for the respondents to impose punishment. In - 6 - addition to that if charge is admitted then no evidence is required to be given. At least with regard to the failure of the petitioner to hand over charge was never denied by the petitioner. He had explanations for not doing so and that explanations too varied from time to time. Four explanations came to be offered by the petitioner for not handing over charge on four different occasions but he never denied the charge, of not handing over charge for many a months if not years, after he was transferred. It is but obvious that reason for not handing over charge was to buy time to put the house in order before he was compelled to move on to the new assignment. Some of the explanations included that the petitioner’s mother was unwell or that the petitioner had to go to jail etc. etc. But how much of those circumstances would work now in favour of the petitioner is not understood. 11. Learned counsel for the State relied on a decision rendered in the case of Chairman & Managing Director, V.S.P. vrs. Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569 for the proposition that if charge is admitted no evidence is required and so far as not handing over charge is concerned there is clear finding in this regard. 12. The Court has been taken through various materials and the documents that were pressed into service by the petitioner which he has annexed with the writ application. But on closure scrutiny the so called defence or the explanations fall thru, in view of several documents which have been annexed by the - 7 - respondents in the supplementary counter affidavit culled out from the records of the enquiry. The Court gave an opportunity to the counsel for the petitioner to have a look at those documents which formed part and parcel of the enquiry. It is obvious that since they stared the petitioner in the face he conveniently did not annex it with the writ application. These are documents which are explanations, receipts and acceptance of facts even by the petitioner. Faced with embarrassing situation of the kind counsel for the petitioner tried to put up a defence by relying on the decision of Mohindra Singh Gill & another vrs. The Chief Election Commissioner New Delhi & others reported in AIR 1978 SC 851 for the proposition that the State could not supplement the materials beyond the punishment order. 13. The Court has certain difficulty in accepting the stand or proposition urged by learned Senior counsel on this issue because nothing has been supplemented by the State. State has only brought these materials in the supplementary counter affidavit on the direction of the Court in view of evasive stand taken by the petitioner as also in view of the fact that not all documents and aspects of the enquiry was fairly pleaded in the writ. The original record was directed by the Court to be produced for verification and when the records spoke otherwise counsel for the State was directed to supplement the counter affidavit and annex all those materials relating to the enquiry. The stand of the petitioner that evidence is supplemented is not correct and is an - 8 - effort to shy away from the evidence and materials which came during the course of enquiry and are integral part and parcel of the records of the proceeding. Petitioner can not be allowed to disown those documents now at the level of the High Court, more so when they were directed to be produced to test the bona fide of the stand of the petitioner before this Court. Even otherwise this Court is not a court of appeal to go through the evidence and indulge in reappraisal of the materials. The writ court has to see that the petitioner has been given a fair opportunity to defend himself. On that count there is no failure. 14. There are some significant decisions of the Hon’ble Supreme Court which is required to be noticed in the context of the present case. In the case of V. Ramana vs. A. P. SRTC & others reported in (2005)7 SCC 338 the Apex Court had this to say in para-11 Para-11: “The common thread running through in all these decisions is that the court should not interfere with the administrator’s decision unless it was illogical or suffers 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. In view of what has been stated in Wednesbury case 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.” 15. The above decision has been further applied in the case of Uttaranchal Transport Corporation vrs. Sanjay - 9 - Kumar Nautiyal reported in (2008)12 SCC 131. Hon’ble Supreme Court has quoted with approval the ratio of V. Ramana case in para 16 which is reproduced below: Para 16: In V. Ramana it was held as follows: (SCC pp.341-42, paras 4-5) “4………. In Karnataka SRTC v. B.S. Hullikatti it was held that misconduct in such cases where the bus conductor either had not issued tickets to a large number of passengers or had issued tickets of lower denomination, punishment or removal is proper. It is the responsibility of the conductors to collect correct fare charges from the passengers and deposit the same with the Corporation. They act in fiduciary capacity and it would be a case of gross misconduct if they do not collect any fare or the correct amount of fare. A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The factual position shows that 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 regulations contained in the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 ( in short “the Regulations”). In Karnataka SRTC case it was held that it is misplaced sympathy by courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It was finally held that the order of dismissal should not have been set aside. The view was reiterated by a three-Judge Bench in Rajasthan SRTC v. Ghanshyam Sharma where it was additionally observed that the proved acts amount either to a case of dishonesty or of gross negligence, and bus conductors who by their actions or inactions cause financial loss to the Corporation are not fit to be retained in service. - 10 - 5. The principle was reiterated in U. P. SRTC v. Hoti Lal. Above being the position, the Labour Court and the High Court were not justified in holding that the punishment awarded was disproportionate” 16. Yet another judgment of significance is the case of U. P. SRTC vs. Mahendra Nath Tiwari & Another reported in (2006) 1 SCC 118. The view of the Court expressed in paras 7 and 8 are reproduced herein below. Para 7: “We have no hesitation in coming to the conclusion that the respondent did not deserve the award of back wages to him. In fact, he must consider himself lucky to have been reinstated and that we are not interfering with that reinstatement. When a conductor drives a bus for which he is not authorised, he is endangering the public as well as the property of his employer. This by itself is a serious misconduct justifying dismissal of a conductor. Similarly, that fact that one passenger was found traveling and had not been issue a ticket for that journey, constitutes a grave charge against a conductor who is really in a position to trust as far as the employer corporation is concerned. He is duty-bound to collect the fare from every passenger on behalf of his employer. Same is the position regarding the unexplained twelve used tickets, found in his possession. That prima facie suggests that there is room to doubt the honesty of the respondent. He did not even try to explain the circumstances in that regard. The charges are such that they show a betrayal of the trust placed on the conductor by the employer and that the employee endangered an asset of the Corporation in addition to endangering the lives of the other users of the road.” Para 8: “It is a misconception to consider that the amount involved in an offence of this nature has a material bearing, while considering whether there has been misconduct on the part of an employee. It may be relevant in a criminal prosecution when considering the quantum of punishment to be imposed. When a person like the conductor of a bus, who has the - 11 - obligation to make proper collection of the charges from the passengers on issuing tickets to them, is found to have passengers in the bus, even if it be only one, to whom he had not issued a ticket, it clearly amounts to a clear violation of the duty imposed on him. It is really a breach of the duty cast on the conductor who is acting on behalf of the employer. Whether it be one passenger or ten passengers it would make no difference in principle in the absence of any explanation in that behalf. It was simply the case of a conductor who had violated the regulations or the terms of his employment and had betrayed his employer, which, in any event, is a grave misconduct justifying a dismissal.” 17. In the totality therefore majority of the legal objections raised by the petitioner are not founded on materials and the evidence which are available on record, produced during the departmental enquiry. This is despite the best effort of the petitioner to prevent the evidence and materials to come in the domestic enquiry. The findings have come and it cannot be wished away. Petitioner had been charged with defalcation of government money and disobeying the order of transfer. The Court cannot take a soft view in the face of the findings recorded by the enquiry officer in his enquiry report which is rather exhaustive. 18. The objections relating to conduct of the enquiry, on closure scrutiny of the record, do not support the petitioner’s stand that he was not given a fair and free opportunity to defend himself. In fact, the respondents had been very indulgent and patient with the petitioner while conducting the enquiry but findings being what they are the order of punishment does not require any interference on any count. - 12 - 19. This writ application has no merit and it is dismissed. There will be no order as to costs. Patna High Court, Patna Dated the 11th October, 2010 NAFR/RPS /Sr. Secy. (Ajay Kumar Tripathi, J.)