IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 461 OF 2002 Date of decision: 30.5.2008 Krishan Lal Petitioner Vs. H.R.T.C. and others Respondent Coram: The Hon’ble Mr. R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? For the Petitioner: Mr. Ahwani Kumar Sharma, Advocate For the Respondents : Mr. Shashi Shirshoo, Advocate Per R.B.Misra, J. (Oral) The present writ petition has been preferred against the order dated 28th December, 2001 passed by learned H.P. State Administrative Tribunal, Shimla (in short called ‘learned tribunal’) in O.A. No. 268/94, whereby, the prayer for setting aside the removal order and the inquiry report against the petitioner was rejected, consequently, the punishment inflicted on the petitioner was not interfered with. 2. In order to adjudicate the writ petition it is necessary to give brief facts of the case. The petitioner, 2 at the relevant time, while working as a senior Store Keeper under the Himachal Road Transport Corporation, (for short HRTC) Depot Parwanoo was served a charge sheet on 3rd January, 1987 after the store verification of the spare parts section of Regional Store H.R.T.C., Parwanoo during the year 1985-86 in respect of the shortage of 51 items amounting to Rs. 24,762.12. The Regional Manager, HRTC, conducted the inquiry and submitted the following report holding the following charges against the petitioner as proved :- “Article No. 1. Has not maintained stores under his charge properly thereby causing financial loss of Rs. 24,762.12 paise. Article No. II Sheer negligence in performance of assigned duty. 3. As argued by the learned counsel for the petitioner herein that the provisions of sub rules (9), (16), (17) (18) of Rule 14, were not followed by the Inquiring Officer and the mandatory provisions were ignored, which has prejudiced to the petitioner. It was also argued by learned counsel for the petitioner that the opportunity to produce the defence witnesses were not provided and the statement of the petitioner was not recorded and the co-workers, who were said to be jointly responsible, were not held responsible for shortage of material in the stores. 3 4. The disciplinary authority on receipt of the inquiry report, forwarded the same to the petitioner on 21st July, 1993 indicating that the petitioner may make his representation. After considering the representation of the petitioner, the disciplinary authority passed an order on 23.3.1994 imposing the penalty of removal of the petitioner from service which was assailed by the petitioner in O.A. No. 268 of 1994 before learned tribunal on the ground that the inquiring officer has failed to observe the provisions and procedures prescribed for conducting the inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (here-in-after referred to as the ‘Rules’) so much so, no reasonable opportunity was given to the petitioner to adduce evidence and provisions of Rules 17 & 18 of the Rules have not ignored. 5. Whereas, for and on behalf of HRTC it was argued that the inquiry was conducted well within the provisions of ‘Rules’ and the inquiry report was finalized after affording the petitioner an opportunity of hearing and the imposition of punishment by the Disciplinary Authority is in consonance to the provisions of law and since there was no infirmity in the inquiry report, as such, the termination order of the petitioner was justifiable. 4 6. Learned Tribunal had examined the applicability of different provisions of sub Rules (9), (16), (17) and (18) of Rule 14 of the ‘Rules’ and has found that the petitioner/delinquent official appeared before the Inquiring Officer on 18th November, 1987 and admitted the receipt of charge-sheet, however, when charges were read over to him, he pleaded not guilty. The petitioner was afforded an opportunity to inspect the documents and the charge-sheet, and to inform the Inquiry Officer regarding taking assistance of any official of his choice. The petitioner was also given an opportunity to file a list of additional documents along with a list of defence witnesses within 10 days. On the adjourned date i.e. 22.11.1987 the petitioner could not present himself, therefore, another adjournment was given for 23rd December, 1987 when the deposition of two witnesses, namely, PW-1 J.R. Chauhan, and PW-2 Balbir Sing were recorded and the delinquent official also cross-examined these witness. The petitioner also submitted the list of record to be summoned. On January 21, 1988 the petitioner/delinquent official informed the inquiring officer that one junior auditor be deputed for reconciling the shortages by the Deputy General Manager Parwanoo and the inquiry proceedings were adjourned for 24th February, 1988 and then for 23.3.1988 on the request of the petitioner. It appears, 5 on 28.3.1988, a notice was issued to the petitioner whereby the petitioner was asked to appear before the inquiring officer on 20.4.1988 and was again specifically asked to inspect the list of the documents and charge sheet and also to furnish the list of defence witnesses within 10 days along with the additional documents. It appears, after few adjournments the inquiry was finalized on 23.1.1989 after accepting the defence statement. 7. Learned Tribunal has observed in para 9 as follows:- “9. The enquiry report is silent as to whether the delinquent official had produced any defence witnesses or had examined himself as required under Rule 14(18) of C.C.S. (CCA) Rules. But the defence statement submitted on January 23, 1989 does not say that the applicant had submitted a list of defence witnesses who had not been examined. Even there is no allegation in this original application that any prejudice had been caused to the applicant on account of the fact that the defence witnesses who were cited, were not allowed to be examined.” 8. Learned Tribunal has arrived at a finding that though the Enquiring Officer has not followed the procedure at some stages, yet no prejudice has been caused to the petitioner. In such circumstances there was no necessity to quash the inquiry report and punishment. Learned Tribunal has placed reliance on a decision of Supreme Court in Bank of India and another Vs. Degala Suryanarayan (1999) 5 SCC 762 6 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 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 7 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) 9. Learned counsel for the petitioner has argued that since the defence statement was submitted, the inquiring officer was under obligation to provide an opportunity to the petitioner to produce evidences and the petitioner could have availed the opportunity of examining himself and the witnesses produced on behalf of the petitioner could have been examined. According to the petitioner, as required under Rule 18, after closing of case by the petitioner, the inquiry officer could have questioned about the circumstances appearing against him in the evidence for the purpose of enabling the petitioner to explain any circumstances appearing in the evidence against him. According to the petitioner such mandatory procedural requirements were ignored. In these circumstances for non observance of the procedures as indicated in rules 17 and 18, the inquiry report is apparently vitiated and the finding arrived at after placing reliance upon the same cannot be arrived at by the disciplinary authority. Learned counsel for the petitioner has also argued that in the facts and circumstances, keeping in view the 8 gravity of offence, the punishment awarded is disproportionate. 10. On the other hand, learned counsel for the respondents has argued that the petitioner has himself filed defence statement on 23rd January, 1989 and as agreed by the petitioner and the respondents arguments were heared and on the same day the case was fixed for drawing of inquiry report. Therefore, it was required on his part to pray for adducing more evidence, if any, or defence witnesses for which the petitioner had already been intimated on 18.11.1987 and 23.8.1988. Since the petitioner has failed to come forward to adduce further defence witnesses despite repeated indications to him then he cannot be allowed to take protection of the provisions of Rules 17 & 18. According to learned counsel for the respondents, the petitioner has not even argued before the learned Tribunal that the punishment is disproportionate to the gravity of offence. 11. In order to appreciate the issues in question, it is necessary to indicate the relevant provisions of sub rule (14) of the Rules as below:- “16. When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded, and the Government servant shall be required to sign the record. In either case, a copy of 9 the statement of defence shall be given to the Presiding Officer, if any, appointed. 17. The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. 18. The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.” 12. On mere reading of these provisions, it appears that the petitioner was also to observe and was to take many steps which were necessary to be done on his part. Since the petitioner despite repeated indications could not produce the defence witnesses and has also not mentioned any averments in the Original Application that any prejudice has been caused to the petitioner on account of the fact that defence witnesses were not referred or were allowed to be examined. We find that there is no defiance of any provisions or procedures as indicated in Rules 17 & 18 in respect of the quantum of punishment. 10 13. 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. 14. In Hoti Lal’s case (supra) the Supreme Court has followed its earlier decision which is necessary to be referred and is as below:- 11 In Union of India Vs. G. Ganayutham (1997) 7 SCC 463, it was held as follows: (SCC pp. 478-79, paras 31-34) “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.” 15. 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 unless it shocks to the conscience of the court/Tribunal. In cases so falling 12 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 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 13 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)” 16. 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 f the Constitution was not at all justified in reducing the punishment and imposing the punishment of stoppage of two increments only. ( Para-6) 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)” 17. 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 14 awarded punishment of removal from service by the disciplinary authority consequent upon the outcome of the departmental inquiry. However, the High Court view that the punishment was disproportionate to the gravity of misconduct and has reduced the punishment to the stoppage of two increments without assigning any reason 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. 18. After hearing learned counsel for the parties and perusing the documents and in view of the aforesaid indicated settled position of law, we find that since the inquiry has been made in consonance to the provisions of the Rules and the disciplinary authority has already awarded the punishment, keeping in view the gravity of offence and there is no occasion to interfere, we find no occasion to interfere in the punishment. We do not find any illegality or impropriety in the impugned order . Therefore, the writ petition being devoid of merit is dismissed. ( R. B. Misra ), J. May 30, 2008(K) ( Sanjay Karol ), J.