HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13350 of 2000 ORDER: The order of the second respondent modifying the order of punishment to that of withholding increments for a period of four years with cumulative effect, vide proceedings dated 27.01.1998, as confirmed by the first respondent in his order dated 15.02.1999, is questioned in this Writ Petition as being arbitrary and illegal. The petitioner seeks a consequential direction to the respondents to fix his pay duly taking into account his regular increments. The petitioner was appointed as a Railway Protection Force Constable on 30.12.1984. While he was performing escort duties in train No.5011/7492/2625 on the intervening night of 08/09.03.1997, along with Sri M.Kumaraswamy, he was alleged to have checked the luggage of a lady passenger, and to have taken one liquor bottle from her. He was also charged of not intimating his superiors about the attempt of rape made by Sri M.Kumaraswamy on the lady passenger. In his written statement the petitioner, in his own handwriting, admitted that he had taken the liquor bottle from the lady passenger. A charge memo dated 07.04.1997 was issued. An enquiry officer was appointed and, thereafter, the third respondent imposed on the petitioner the punishment of withholding increments for a period of six years with cumulative effect, including treating the period of suspension as such. Aggrieved thereby, the petitioner preferred an appeal to the second respondent who modified the order to that of withholding of increments for a period of four years. The petitioner preferred a revision to the first respondent which was dismissed by order dated 15.02.1999. Aggrieved thereby, the present Writ Petition. Sri J.M.Naidu, Learned Counsel for the petitioner, would submit that non-examination of the lady passenger from whom the petitioner, along with others, is said to have taken the liquor bottle is fatal to the enquiry proceedings, and the enquiry proceedings, culminating in the order of punishment, must be set aside on this ground. Learned Counsel would further submit that merely on the basis of an admission, which the petitioner contended to be at the dictates of the Sub-Inspector, no punishment could have been imposed. He would further contend that, in any event, since a major penalty of stoppage of increments without cumulative effect was imposed, the petitioner was entitled to have the period of his suspension from duty treated as “on duty”, and for payment of all benefits consequent thereto. In The East India Hotels Vs. Their Workmen[1], Hindustan Motors Limited had hosted a cocktail party for about fifty to sixty of its members in the banquet room of the Oberoi Grand Hotel at Calcutta. Sri J. Suleman, one of the workmen employed by the hotel, was deputed to look after the work of the barman to attend on the party. One of the hosts of the party, Sri B.S. Sethi, found the said workman pouring whisky into an empty gingerale bottle and, when he was asked as to why he was doing so, the workman started pouring the whisky into the tub. After half the contents of the bottle was poured into the tub, Sri Sethi took the bottle from his hand, called on Sri Pyare Lal the Steward who was on duty and complained to him. Even while Sethi was complaining, the workman took the bottle from Sethi, in the presence of Sri Pyare Lal, and started pouring the contents into the tub. The Manager Sri Mittal was called but was not found. Thereafter, one Sri Agarwal came along with Pyare Lal and the bottle was taken into custody and was sealed in the presence of the workman who, when asked to sign the sealed bottle, refused to do so. The gingerale bottle was sent for chemical analysis and its contents were found to be whisky. Sri Sethi then made a written complaint to the management of the hotel. On receipt of the complaint, the workman was issued a charge-memo for major misconduct. In the enquiry, Sri Agarwal, Sri Pyare Lal and two others were examined on behalf of the employer in the presence of the workman. However Sri Sethi, the complainant, was not examined. The workman was held guilty of the charges and was dismissed from service. Before the Industrial Tribunal, a contention was raised that the complainant was not examined. The Industrial Tribunal held that the witnesses who were examined in the enquiry were not present at the time of occurrence of the incident, they were not competent to state as to what had actually happened, they had simply stated what they had heard from Mr Sethi, and this sort of evidence was insufficient to prove the charge alleged against the workman. The order of dismissal passed by the company was set aside by the Tribunal. When the matter was carried in appeal, the Supreme Court observed: “….It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect their prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained ‘Nimboo Pani’ and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply was “Hum Jab esme sign karenge tob mar jayenge”. The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and substitute instead the finding that the dismissal of the respondent was justified…….” (emphasis supplied) In State of Haryana Vs. Rattan Singh[2], the respondent was a conductor in a bus which was subjected to a vigilance check. On inspection, the vigilance squad found that four passengers had alighted without tickets and that eleven passengers traveling in the bus did not have tickets although they claimed to have paid the fares. On the basis of the report submitted by the flying squad, a charge sheet was issued, a domestic enquiry held and, on his guilt being established, the services of the respondent-conductor was terminated. The Civil Court held the order of termination to be a nullity, and declared that he was entitled to be continued in service. The appellate Court affirmed the order of the Trial Court and the second appeal was dismissed by the High Court. All the Courts had declared the termination to be bad as none of the eleven passengers had been examined in the domestic enquiry, and there were departmental instructions that the checking Inspectors should record the statements of the passengers which was not done in this case. The explanation of the State was that the Inspector of the flying squad had stated that the passengers had informed that they had paid the fares, but had declined to give written statements. On the State of Haryana approaching it by way of special leave, the Supreme Court observed: “……. 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. It is true that 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 Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ‘residuum’ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence – not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, in some evidence which has relevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor’s testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal……” (emphasis supplied) In J.D. Jain Vs. State Bank of India[3], the appellant was working as a cashier with the State Bank of India. One Sri D.P. Kansal, who had a savings bank account with the bank, came to receive his passbook. On receipt of the passbook from the counter clerk, Sri Kansal complained to Sri Wadhera, the Ledger- Keeper, that on February 8, 1971 he had withdrawn only Rs.500.00 (Rupees five hundred only), but a debit entry of Rs.1,500.00 (Rupees fifteen hundred only) had been shown in the passbook. Sri Wadhera took Sri Kansal to the supervisor Sri R.P. Gupta before whom Sri Kansal repeated the complaint. The documents were examined and it was found that Sri Kansal had given a ‘letter of authority’ to the appellant Sri J.D. Jain authorizing him to withdraw the amount from his account. The letter of authority showed that it was a withdrawal of Rs.1,500.00 (Rupees fifteen hundred only) though there appeared to be some interpolation suggesting that the figure of Rs.500.00 had been altered to the figure of Rs.1,500.00. The matter was brought to the notice of Sri M. Ramzan, the Agent of the bank, before whom also Sri Kansal repeated his complaint. Eventually, a charge memo was issued to the appellant alleging that he had altered, in his own handwriting, the figure of Rs.500.00 in the letter of authority to Rs.1,500.00 and had received Rs.1,000.00 in excess passing only Rs.500.00 to the passbook holder, and that he had subsequently, on 24-06-1971, deposited Rs.250.00 (Rupees Two Hundred and Fifty only) in the account of Sri Kansal to liquidate a part of the amount misappropriated by him. Since the appellant denied the charges, an enquiry officer was appointed and, on the appellant being found guilty, the disciplinary authority discharged him from service. The appellant raised a dispute and the Tribunal held that, on the evidence before it, the appellant could not be held guilty in the absence of the evidence of Sri Kansal, and that the evidence recorded in the enquiry was hearsay. The Tribunal directed reinstatement of the appellant with full back wages. Aggrieved thereby, the bank moved the High Court and the High Court, while holding the charges against the appellant to have been established, quashed the award of the Tribunal. When the matter was carried in appeal, the Supreme Court observed: “……….In an application for a Writ of Certiorari under Art. 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the Tribunal as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty. In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500.00 - Rs. 1,000.00 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs. 1,000,00. With regard to the fact whether the appellant manipulated the documents withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye-witness except the appellant's 'confession' referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit "1" before 500. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is, therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the above-named four witnesses, the respondent has succeeded. No rule of law enjoins that a complaint has to be in writing as insisted by the Tribunal…….” (emphasis supplied) In The Divisional Manager United India Insurance Co. Ltd Vs. Thotapalli Radhakrishna Murthy[4] the respondent was an Inspector with United India Insurance Company Limited. He was charged of submitting false hospital claims for Rs.925/- towards medicines, drugs and charges incurred for the treatment of his wife for a period of one month in a private nursing home. The allegation levelled against the respondent was that the said bill was not true, his wife had never undergone any treatment in the said clinic, and the claim was put forth only with a view to defraud the company. After the respondent submitted the bill, M.Ws. 1 to 4 i.e, M.W-I the private secretary, M.W-2, the Assistant Regional Manager, M.W-3, the Assistant in the Divisional Office and M.W-4 the Divisional Manager, wanted to verify the correctness of the bills submitted by the respondent. M.W.3 met the doctor who admitted that it was not a true certificate whereupon M.W.4 accompanied by M.W.3 again went to the doctor who reported the falsity of the certificate and made an endorsement on the obverse of the certificate that “the bill was withdrawn”. Thereafter, they confronted the respondent with the said endorsement who admitted his guilt and gave his statement in writing on the same day. On the ground that the doctor, who made the endorsement on the medical certificate, was not examined, the writ petition was allowed. The learned Single Judge rejected the argument that the doctor was not available in India at the time of enquiry, and was in the USA, and observed that the said ground was not an answer or a panacea for the said “fatal infirmity of non-examination of the doctor”. It is in this context that the Division bench of this Court observed:- “……..may be the doctor’s evidence was material may be his evidence was important; but, that is a question touching upon the adequacy of the evidence, which this Court cannot go into under Art. 226 of the Constitution. This Court can interfere if there is no evidence in support of the charges, or in a case where the finding or the conclusion is such that no reasonable person would have arrived at it, to wit, perverse; but the this Court cannot sit as an appellate authority and weigh the evidence. Moreover, it cannot also be said that it was a case of deliberate suppression of material evidence. The doctor was not available in India and summoning him from United States for giving evidence at the enquiry would have meant inordinate cost to the Company. Another fact to be remembered in this behalf is that, the Evidence Act does not apply to these enquiries. The only obligation of the Enquiry Officer is to conduct the enquiry in accordance with the principles of natural justice, which means, in a fair manner…….. The evidence of the Company officials in whose presence the doctor made the endorsement, cannot be said to be hearsay. M.Ws.3 and 4 have deposed that the doctor made the said endorsement on the obverse of the certificate/bill in their presence. For these reasons’ we must hold that the enquiry is not vitiated by non-examination of the doctor…….” (emphasis supplied) The contention that failure on the part of the prosecution to examine the lady passenger from whom the petitioner, along with others, had taken the bottle of liquor, and who were material witnesses, would vitiate the enquiry proceedings and the order of punishment does not, therefore, merit acceptance. As such, this contention is liable to be rejected. It is evident from the order of the disciplinary authority that the petitioner, in his own handwriting, had admitted that he had taken the liquor bottle from the lady passenger. The fact that he had so admitted in writing is not denied. The only contention urged is that the said letter of admission was at the dictates of the Sub- Inspector, and the contents of the statement are wrong. The disciplinary authority observed that the petitioner could not have been so naive as to sign on a written statement without understanding it; his statement was further supported by the written statement of another Constable; and both the Constables had failed to attribute motives to the Sub-Inspector or to have stated why he should force them into giving a wrong statement, or to take their signatures thereon. The appellate authority, in his order dated 27.01.1998, noted that the service record of the petitioner revealed that he was qualified in Pre-University Course (I Year), and his plea of illiteracy was false and baseless. The appellate authority also observed that the petitioner had failed to furnish any reason why a wrong statement was dictated by an officer. The reviewing authority, in his order dated 15.02.1999, observed that the petitioner, in a signed statement recorded on 09.03.1997 in english by the Sub-Inspector which was read over to him and explained to him in hindi, had admitted to the facts and the said statement clearly indicated that he, along with his colleague Sri M.Kumaraswamy, had taken one liquor bottle and hid the same in the lavatory of the coach. The reviewing authority further observed that, since the petitioner had admitted to have taken a liquor bottle from the lady passenger and as a disciplined educated constable could not have signed the statement without knowledge of its implications, no interference was called for with regards imposition of penalty. The Supreme Court, in Central Bank of India Ltd. v. Karunamoy Banerjee5, held that, where a workman admitted his guilt, to insist upon the management to let in evidence about the allegations would only be an empty formality. The Division Bench of this Court in K.Venkateswarlu v. Nagarjuna Grameena Bank6 observed: “……In a disciplinary proceeding if the delinquent admits the charge framed against him or makes an unconditional and unqualified confession, then there is nothing more to be done by way of enquiry and it cannot be argued that the procedure of departmental enquiry should have been applied notwithstanding such admission or confession. When admission made by a delinquent shows that he had committed misconduct then the question of violation of the principles of natural justice cannot have any relevance. If a misconduct is admitted then this is antithesis to the violation of the principles of natural justice or victimisation……. ………If an order made by the disciplinary authority imposing the punishment on a delinquent could be sustained on the basis of the admission made by the delinquent, the punishment cannot be set aside by the court on the ground that no officer of the company was examined on behalf of the disciplinary authority……….. ………Further in case the delinquent admits the guilt unconditionally and clearly and despite that the employer holds a departmental enquiry against him and the court finds certain flaw or defect in such unnecessary enquiry conducted by the employer, even then the court cannot set aside the order made by the employer imposing punishment. It is so because even if the defective enquiry is conducted then no prejudice is caused to the delinquent because action could have been taken against him on the basis of admission………” (emphasis supplied) It is evident, therefore, that once an employee admits his guilt that, by itself, would satisfy the requirement of the charge having been established. Reliance placed by Sri J.M.Naidu, Learned Counsel for the petitioner, on Jagdish Prasad Saxena v. The State of Madhya Bharat (Madhya Pradesh)7, is misplaced. In Jagdish Prasad Saxena7 the Supreme Court observed that, if the statements made by the charged employee do not amount to a clear or unambiguous admission of guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. It is not even the petitioner’s case that the letter of admission suffered from any ambiguity. On the other hand, it is his case that, while the letter was in his own handwriting and contained his signature thereon, it was at the dictates of the Sub-Inspector concerned. All the three authorities i.e., the disciplinary authority, appellate authority and the reviewing authority have recorded a finding that the petitioner was not illiterate and, as such, must have been aware of the contents of the confessional statement given by him. They also disbelieved his subsequent contention that the contents of the statements were not correct on the ground that the petitioner had not explained why the Sub-Inspector would ask him to write a confessional statement if such an incident had not occurred. Jagdish Prasad Saxena7 is, therefore, of no assistance to the petitioner. The judgment of this Court in Tharakeswari v. The Director, Sri Venkateswara Institute of Medical Sciences, Tirupathi (W.P.No.3797 of 1995 dated 17.10.1995), is also of no assistance to the petitioner. On