Lal Baboo vs State Of U.P. & Others
2011 Latest Caselaw 405 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 28
 

 
Case :- WRIT - A No. - 51993 of 2009
 
Petitioner :- Lal Baboo
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Ganesh Prajapati,Dinesh K.Chaubey
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal, J.

1.The only contention raised by learned counsel for petitioner is that the defence taken by petitioner has not been believed by authorities concerned in holding the charges proved and, therefore, the impugned orders are illegal. He submitted that in respect to allegation of his absence from 20.2.1999 to 23.2.1999 and 28.4.1999 to 7.3.1999, he had submitted written letter of Gram Pradhan showing that he had gone thereto and that from 5.3.1999 and onwards he was absent on account of illness for which medical certificate was also submitted but these documents have not been believed by authorities concerned and instead they have relied on the complaint and report submitted by Collection Amin with whom petitioner was attached though petitioner did not accompany him for collection proceeding during aforesaid period.

2.Whether an evidence is to be believed or not is within the domain of administrative authorities and unless it is shown that findings recorded by authorities concerned is perverse or contrary to material on record, no interference in judicial review in departmental inquiry matter should be made.

3.In the matter of departmental enquiry, what is the scope of judicial review, has been considered by the Apex Court in the case of State of Andhra Pradesh Vs. Sree Rama Rao AIR 1963 SC 1723, and in para 7 it has held as under:

"There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. 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 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 fact 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."(para 7)

4.In Bareilly Electricity Supply Company Ltd. Vs. Workmen and Ors. 1971 (2) SCC 617, the Apex Court held that the procedure prescribed in the Evidence Act is not applicable in the departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in the departmental proceedings by the person competent to spoke about them and are subjected to cross-examination. The relevant observations are as under:

"But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used." (para 14)

5.In the case of State of Haryana Vs. Rattan Singh AIR 1977 SC 1512, certain passengers were found to have travelled alighted the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge sheeted. The employer on the basis of the statements of the Flying Squat held the charge proved. The employee challenged the order of punishment on the ground that the passengers are said to have travelled without ticket were not examined and in the absence thereof the entire evidence is hear-se. The Apex Court rejecting such contention held as under:

"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 and 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. 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 Halbsbury 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."(para 4)

6.In B.C. Chaturvedi Vs. Union of India-1995(6) SCC 749, reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."(para 12)

7.In R.S. Saini Vs. State of Punjab, 1999 (8) SCC 90 the Apex Court held:

"The standard of proof required in disciplinary proceedings is that of preponderance of probability where there are some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It also held if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This is followed in Lalit Popli Vs. Canera Bank and others 2003(3) SCC 583" (Para 16-19)

8.The same view has been followed by the Apex Court in the case of High Court of Judicature at Bombay Vs. Shashikant S. Patil AIR 2000 SC 22, wherein it has been held as under:

"Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution."(para 16)

9.The Apex Court in the above case also held that the disciplinary authority while considering the report of the enquiry officer is neither an appellate nor a revisional body and, therefore, its order cannot be drafted like a judgment. Even where it differs from the finding of the enquiry officer, it need not to discuss and contest in detail the conclusions of the enquiry officer but it is sufficient if it refers to its disagreement with some reason. The relevant observations are reproduced as under:

"The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer".(para 19)

10.In Syed Rahimuddin Vs. Director General, CSIR 2001 (9) SCC 575, the Apex Court observed as under:

"It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man."(para 5)

11.In Sher Bahadur Vs. Union of India 2002 (7) SCC 142, the orders of punishment were challenging on the ground of lack of sufficiency of the evidence. The Apex Court explained that the expression sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him and it is not the adequacy of the evidence.

12.Recently, in the case of Government of Andhra Pradesh Vs. Mohd. Nasrullah Khan, Judgment Today 2006 (2) SC 82, the Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if resulting in manifest miscarriage and justice or violation of principles of natural justice. In para 7, the Hon'ble Court held as under:

"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority." (Para 7)

13.A Division Bench of this Court (in which I was also a member) in Special Appeal No.1280 of 2005 (Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. and another) decided on 20.02.2006 has laid down certain guidelines as to when and in what manner judicial review of departmental inquiry is permissible. The only exception in such matters is where the findings are perverse and contrary to material on record. It would be appropriate to reproduce the same under:

"(1) The Tribunal exercising quasi judicial functions is neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.

(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.

(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice.

(4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy of reliability of the evidence cannot be looked into by the Court.

(5) The departmental authorities are the sole judges of facts and if 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 Court.

(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.

(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.

(8) It is not necessary that the Disciplinary authority should discuss material on detail and contest the conclusions of the Inquiry Office.

(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available".

14.Learned counsel for petitioner could not show any error in the decision making process having effect of non affording of opportunity of defence. It is not his case that he made request to the enquiry officer to produce evidence in defence which was not permitted to him.

15.Moreover, first charge relates to petitioner's not accompanying the Collection Amin. Petitioner's own reply shows that though he did not accompany the Collection Amin, but he had gone to some areas individually for collection. This is evident from the following reply submitted by petitioner which has been reproduced in the enquiry report:

^^mDr vkjksi ds laca/k esa Jh yky ckcw us vius Li"Vhdj.k esa fn0 21-9-99 esa dgk gS fd fn0 20-2-99 dks nqnh ls vehu ds lkFk E;ksjiqj x;k E;ksjiqj esa vehu lkgc #d x;s vkSj csjh rFkk cjok Vksyk olwyh ds fy, Hkst fn;s osjh xzke esa f'ko cju iq= jkelqUnj dqEgkj ds ?kj fnukad 21-2-99 o 22-2-99 dks jkf+= esa foJke fd;kA rFkk fnu esa cdk;snkjksa ls lEidZ fd;k fnukad 23-2-99 dks nksigj ckn okil E;ksjiqj vkdj vehu lkgc ls eqykdkr fd;k rFkk mUgs fjiksVZ fn;kA fnukad 28-2-99 dks nq)h ls E;ksjiqj vehu ds lkFk x;k blds ckn vehu lkgc ds funsZ'kkuqlkj eS yksgj pUnk o c/keUnok ds fy, jokuk gks x;kA rFkk vehUlkgc E;ksjiqj #d x;sA fnukad 28-2-00 dks c?keUnok esa Jh lgnso ds ;gka jkf+= esa jgkA fnukad 1-3-99 o 2-3-99 dks xzke nsojh esa cdk;snkjksa dks jlhn miyC/k djkus gsrq vehUlkgc ds funsZ'kkuqlkj x;kA rFkk jkf= esa xzkeiz/kku ds ;gka foJke fd;kA fnukad 2-3-99 dks vU; ckdhnkjksa ls lEidZ fd;k rFkk fnukad 3-3-99 dks gksfydk vodk'k fnukad 4-3-99 dks nkf[kyk ds le; rglhy mifLFkr jgkA^^

16.This also shows that petitioner never stated that he accompanied the Collection Amin during period in question which was the specific charge levelled against him. Petitioner being a Collection Peon had to accompany the Collection Peon since he had no individual right to make collection.

17.No other argument has been advanced. No error apparent on the face of record is pointed out in the impugned order. In the circumstances, I find no reason to interfere.

18.Dismissed.

Dt. 18.3.2011

PS