HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 28 Case :- WRIT - A No. - 69093 of 2006 Petitioner :- Ram Rayis Tyagi Respondent :- U.P.S.R.T.C. Thru' Chairman Lucknow And Others Counsel for Petitioner :- Anil Kumar Singh Counsel for Respondent :- Avanish Mishra,S.C.,Samir.Sharma Hon'ble Vivek Kumar Birla,J.
Heard Learned counsel for the parties.
The facts in short of the case as stated in the present petition are that while the petitioner was posted as Fitter in Baraut Depot U.P. State Road Transport Corporation, Meerut Region, Meerut (hereinafter referred as the Corporation), he was served with a charge-sheet dated 15.2.2001 on the charges that an F.I.R. was lodged against the petitioner in respect of an incident of 'Marpeet' with a co-worker; non compliance of the transfer order; contesting the election of Membership of Nagar Panchayat without prior permission of the Competent Authority.
The petitioner submitted his reply on 28.3.2001 denying the charges levelled against him. For this purpose, enquiry was conducted by the Enquiry Officer and a report was also submitted by him. Subsequently, the respondent no. 4-Service Manager served a show cause notice dated 26.6.2004, which was duly received by the petitioner on 23.8.2004. Thereafter, the petitioner was dismissed from service by order dated 31.8.2004 passed by the respondent no. 4.
Against the said dismissal order, the petitioner filed a departmental appeal on 23.10.2004 before the respondent no. 3. The same was dismissed by order dated 9.9.2005 passed by the respondent no. 3-Regional Manager of the Corporation. Subsequently, the petitioner filed a revision / representation before the respondent no. 2-Chairman of the Corporation on 7.10.2005, which was dismissed by the respondent no. 2 by order dated 31.7.2006, which was communicated to the petitioner by letter dated 5.8.2006. The orders of the appellate court and the revisional court are under challenged in the present writ petition.
With regard to Charge No. 1 i.e. the petitioner was involved in 'Marpeet' with a co-worker Sri Imamuddin, the submission of learned counsel for the petitioner is that the Enquiry Officer has not considered the fact that there was no first information report against the petitioner was filed and only an application, which registered as NCR was filed. No other criminal cases were supported against the petitioner and therefore this charge against the petitioner is incorrect. It is submitted that other two persons involved in the present case namely Suresh Chandra and Sheo Kumar were exonerated and were not found guilty and it is the petitioner, who has been punished by the disciplinary authority.
In so far as the Charge No. 2 relating to the non compliance of the transfer order dated 7.9.2000, which was modified by order dated 5.9.2000 is concerned, the submission is that the said transfer orders were never served on the petitioner and therefore joining at the transfer place does not arise. It is further submitted that since the petitioner is an office bearer of the Trade Union, who is always spousing the cause of the workers and takes active part in trade union activities, therefore he has been victimized.
In so far as the Charge No. 3 i.e. instead of joining at the new place of posting i.e. Baraut Depot, but he remained absent and contested election of Corporator of Nagar Panchayat, Kharkhaunda without permission of the competent authority, in which he was elected and this was clear violation of Regulation 61 (iii) of the U.P. State Road Transport Corporation (other than officers) Service Regulations, 1981, which provides that during service no employee shall take part in election proceedings of local body nor he will take part in canvassing or otherwise, the submission of learned counsel for the petitioner is that the petitioner has duly applied for permission before contesting the election and the same was not refused and even the papers of the petitioner were duly attested by the officials of the Corporation and therefore it will be presumed that the employers have granted permission to contest such election and therefore this charge is not open against the petitioner. It is further submitted that another employee namely Ranveer Singh, who contest the election without taking permission, was given lenient punishment of withholding two years increments, while the petitioner was awarded punishment of dismissal from service, which is too harsh.
Learned counsel for the respondents on the other hand submitted that all the charges were found proved against the petitioner by the Enquiry Officer and this Court has limited jurisdiction to interfere in the order passed by the disciplinary authority. A perusal of the enquiry report clearly indicates that full opportunity was afforded in the departmental enquiry and he has been cross-examined the departmental witness and thereafter Enquiry Officer has submitted his report. It is submitted that in accordance with law a show cause notice dated 26.6.2004 was also issued to the petitioner, to which also he had submitted his reply. The submission is that the departmental appeal and the revision were also rightly and legally dismissed by the competent authorities and they do not require any interference by this Court under Article 226 of the Constitution of India.
I have considered the rival submissions and have perused the record. Initially the petitioner has not appeared before the Enquiry Officer on the date so fixed by him and had instead submitted an application dated 25.8.2001 to the Regional Manager, Meerut requesting for changing the Enquiry Officer. On his request, the Enquiry Officer was also changed and the Assistant Regional Manager, Muzaffar Nagar was appointed as Enquiry Officer in place of Assistant Regional Manager, Saharanpur/Chutmalpur. Yet, the petitioner did not appear before the Enquiry Officer on various dates. Ultimately, the petitioner appeared before the Enquiry Officer on 27.8.2002, he cross-examined the departmental witness/Imamuddin (Driver), who was allegedly beating up by the petitioner with the butt of his illegal arm.
A perusal of the enquiry report clearly indicates that the injured employee Imamuddin (Driver) had clearly stated on oath on 13.8.2001 before the Enquiry Officer that the report filed by him dated 28.7.1998 against the petitioner is proved and infact the petitioner had taken out Katta (country made pistol) from his bag and injured him with the butt of the pistol on his head and he has been taken for treatment to Medical College by Sri Subhash Chandra and Sri Kamal Kumar, where he was treated for his injuries. Affirming the said incident, Sri Imamuddin (Driver) has also made a statement before the Enquiry Officer that the petitioner has stated before the Enquiry Officer that infact regarding the same incident he has filed a criminal case against Imamuddin and others. He has further admitted that when he replied to the charge-sheet given to him uptil that date no criminal case was pending against Imamuddin, Subhash Chandra and Kamal Kumar in the criminal Court. This clearly indicates that the incident had taken place on 27.7.1998. Witness Subhash Chandra Rana had also stated that when he reached on the place of incident he found that Imamuddin had suffered head injury and was started bleeding, who was taken to Medical College by him and was kept under observation for five hours. He had also stated that the incident was reported by them whereas the report by the petitioner was filed subsequently, and as thus created a cross case to defend him. This version was also supported by witness Subhash Chandra (Cleaner), who also appeared on behalf of Imamuddin.
Clearly, various documents and the statement of Imamuddin-the injured co-worker, clearly indicates that the incident of 'Marpeet' had taken place and whatever criminal action was taken by the petitioner was subsequent to the report submitted by the injured witness and as such finding recorded on Charge No. 1 does not require any interference as adequacy / reliability of evidence cannot be canvassed before this Court if an enquiry has been properly held.
Regarding Charge No. 2 that he had not complied with the transfer orders, it has come on record that in his reply to the show cause notice the petitioner had himself stated that he had submitted an application for modification of his transfer order on the ground of illness of his wife and therefore, the transfer order was modified, which clearly indicates that the petitioner has received the transfer order and was duly aware of the transfer order requiring him to join at the transferred place i.e. Baraut Depot but admittedly he did not join, and therefore there is no doubt that the petitioner has deliberately not complied with the transfer orders. The Enquiry Officer has also recorded that from the record it has been made clear that till 27.1.2001 the petitioner has not joined at Baraut Depot. Thus the finding on charge no. 2 against the petitioner is based on evidence on record.
In the case of Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433 in paragraph 4 held that a Government Servant appointed on a transferable post has no right for being posted at a particular post and when transferred must comply unless stayed, modified or cancelled on his representation. In this case order of discharge from service or non-compliance of transfer order was upheld.
In so far as Charge No. 3 is concerned, there is nothing on record to indicate that the petitioner had sought any permission from the competent authority. According to respondent-Corporation letter dated 2.11.2000 (Annexure-11 to the writ petition) was never received and is not available in the office of the Corporation and that it is a subsequently fabricated document and is an afterthought. When the letter was produced in the enquiry proceedings no serial number of the receipt register was indicated on the said letter and only 'NIL' was written and the enquiry officer has rightly recorded a finding of fact that the petitioner had failed to produce any evidence whatsoever to show that the permission was granted to the petitioner for contesting the election. In so far as contesting the election of the local body is concerned, this fact was also admitted by the petitioner and it was only submitted that in case if there is any objection against his membership of the Nagar Panchayat he is ready to tender his resignation from the membership of the Nagar Panchayat. Contesting election was, thus, in clear violation of Regulation 61 (iii) of the U.P. State Road Transport Corporation (other than officers) Service Regulations, 1981.
The enquiry report clearly indicates that a categorical findings have been recorded against the petitioner on the basis of the material and evidence on record, which does not require any interference by this Court. Subsequent resignation of the petitioner from the post of Member of Nagar Panchayat, Kharkhaunda on the letter dated 23.11.2004 has no bearing on the issue in hand as he was admittedly elected in Ward No. 8 of the said Nagar Panchayat and submission of resignation letter after almost four years of having been elected and working as such, is clearly misleading and has no relevance whatsoever with the issue involved or the misconduct committed by the petitioner.
It is a well settled law that the High Court in exercise of its powers under Articles 226/227 of the Constitution of India shall not venture into re-appreciation of the evidence. Reference may be made in this regard to a recent judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610. Relevant paragraphs 12, 13, 14, 16 and 17 are quoted as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience. 14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
16. These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh, 1977 (2) SCC 491. To quote the unparalled and inimitable expressions:
"4. .... 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 text books, 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, fairplay 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. ..."
17. In all the subsequent decisions of this Court upto the latest in Chennai Metropolitan Water Supply and Sewarage Board v. T. T. Murali Babu, 2014 (4) SCC 108, these principles have been consistently followed adding practically nothing more or altering anything.
It is also well settled law that it is not open to the High Court in exercise of its jurisdiction under Articles 226/227 of the Constitution of India to go into proportionality of punishment so long as the punishment does not shock the conscience of the Court. Reference may be made to paragraphs 20 and 21 of the abovenoted case Union of India Vs. P. Gunasekaran (supra), which are quoted as under:
"20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.
21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra)."
In view of the aforesaid, I am of the opinion that in view of the charges levelled against the delinquent employee and findings recorded by the disciplinary authority, no interference in the quantum of punishment is warranted.
For the discussions made hereinabove, no case for interference under Article 226 of the Constitution of India has been made out.
This writ petition lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 20.7.2015 Lalit Shukla