Andhra Pradesh High Court - Amravati

J P Rao vs Andhra Pradesh State Road ... on 10 December, 2021

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITON NO.9825 OF 2019

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India claiming the following relief:

"To issue Writ of Mandamus declaring the action of the 2nd respondent in passing a final order vide proceedings No.01/1149/17RZL dated 18.04.2018 imposing penalty of removal from service and the Orders passed by 3m1 respondent Appellate Authority Proceedings No PA208/19Dy CPM RJY dated 25.1.2019 rejecting the appeal as time barred and the orders passed by the 4th respondent Proceedings No PAJ2020/19RM EG dated 30.5.2019 and dismissing the Review Petition dated 19.2.2019 and the orders proceedings No AMP/67526/2019ED VZM dated 5.7.2019 of the 5th respondent dismissing the mercy petition as illegal arbitrary perverse and in violation of principles of natural justice and set aside the same and further direct the 1st respondent to reinstate the petitioner into service."

The case of the petitioner in nut-shell is that, the petitioner

was working as a driver in the second respondent depot. On

22.06.2017, passenger by name Bolisetty Venkateswara Rao -

complainant travelled from Lakkavaram to Tarnaka in vehicle

No.AP 05 Z 5080, Service No.2841 in which the petitioner was

performing his duties as driver. He noticed that a co-passenger

forgot Rs.2,00,000/- on the seat and he handed over the same to

the petitioner, who in-turn handed over the same to co-driver MRK

Reddy to deposit the same in the Corporation account. The

petitioner denied handing over of amount either to him or any

other person. Basing on such frivolous complaint, charge memo

was issued, enquiry was conducted and report was submitted.

MSM,J W.P.No.9825 of 2019

Basing on the said enquiry report, impugned order has been

passed.

Basing on the enquiry report dated 08.03.2018, a show

cause notice dated 23.03.2018 was issued proposing to impose

penalty to remove from service. The petitioner submitted an

explanation to the show cause notice on 02.04.2018. On

consideration of the explanation of this petitioner dated

02.04.2018, the second respondent imposed punishment of

removal from service vide impugned order dated 18.04.2018.

The order dated 18.04.2018 shows that the second

respondent has not applied his mind to the petitioner's explanation

and in view of the facts and circumstances of the case, without

giving any reasons, the second respondent imposed major penalty.

Therefore, the petitioner questioned the order imposing penalty of

removal on various grounds.

The major ground urged before this Court is that, either the

Enquiry Officer or the Appellate Authority did not consider the

material evidence in proper perspective and recorded perverse

findings. Therefore, the order finding this petitioner guilty is illegal,

arbitrary and without any material. On this ground alone, the

punishment imposed against this petitioner is liable to be set-aside

and requested to set-aside the impugned proceedings.

Respondent Nos. 1 to 5 filed counter affidavit, denying

material allegations, admitting about holding of enquiry and

imposing major penalty of removal from service, as the petitioner

was found guilty for serious misconduct, while denying the other

allegations.

MSM,J W.P.No.9825 of 2019

During hearing, Sri C. Raghu, learned counsel for the

petitioner contended that, when the findings were not based on

material evidence, those findings can be said to be perverse. The

respondent did not examine any findings to connect this petitioner

with serious misconduct allegedly committed by this petitioner.

Thus, the Enquiry Officer did commit a serious error in

appreciation of the evidence, while holding this petitioner guilty for

serious misconduct and consequently, the penalty of major

punishment is irregular, illegal and disproportionate to the gravity

of the misconduct and requested to set-aside the same, while

placing reliance on the judgment of Himachal Pradesh High Court

in Subhash Ahuja and another v. Union of India1.

Whereas, Sri M. Solomon Raju, learned Standing Counsel for

APSRTC would contend that, jurisdiction of this Court under

Article 226 of the Constitution of India is limited and this Court

cannot sit over an appeal against the order of disciplinary

authority and therefore, in view of the limited jurisdiction of this

Court, unless a procedural irregularity is found, this Court cannot

interfere with such finding and requested to dismiss the writ

petition.

It is undoubtedly true that the petitioner was found guilty by

the Enquiry Officer/Respondent No.2 and affirmed by the

Executive Director, APSRTC Vijayanagaram/Respondent No.5 in

appeal, while confirming the finding recorded by the second

respondent with regard to misconduct. The petitioner's main

grievance is that, evidence on record was not appreciated; but the

RSA No.324 of 2017 dated 29.08.2017 MSM,J W.P.No.9825 of 2019

second respondent recorded a perverse finding and recorded

finding without any material. In view of the specific contention, it is

necessary to advert to the scope of jurisdiction of this Court under

Article 226 of the Constitution of India, in the disciplinary

proceedings.

Hon'ble Supreme Court had considered the scope and

jurisdiction of this Court to interfere with the Enquiry Report in

State of Karnataka v. N. Gangaraj2. Based on the earlier

judgments in State of Andhra Pradesh v. S. Sree Rama Rao3,

B.C. Chaturvedi v. Union of India4, State Bank of Bikaner and

Jaipur v. Nemi Chand Nalwaya5, the Apex Court concluded that

the jurisdiction of this Court is limited and unless there is a

serious procedural irregularity, this Court cannot interfere with

such finding.

In another judgment of the Allahabad High Court in Rakesh

Kumar Pandey v. State of Uttar Pradesh6, Allahabad High Court

considered the judgments of the Apex Court in Indian Oil

Corporation Limited v. Ashok Kumar Arora7, Lalit Popli v.

Canara Bank8, B.C. Chaturvedi v. Union of India (referred

supra), and R.S. Saini v. State of Punjab9 held that the scope of

judicial review was indicated by stating that review by the court is

of decision-making process and where the findings of the

disciplinary authority are based on some evidence, the court or the

2 (2020) 3 SCC 423 3 AIR 1963 SC 1723 4 (1995) 6 SCC 749 5 (2011) 4 SCC 584 6 Service Single No.18642 of 2018 dated 20.02.2019 7 (1997) 3 SCC 72 8 (2003) 3 SCC 583 9 (1999) 8 SCC 90 MSM,J W.P.No.9825 of 2019

tribunal cannot re-appreciate the evidence and substitute its own

finding.

In view of the law declared by this Court, the Court can

interfere only when there is a procedural irregularity and this

Court cannot appreciate/re-appreciate the evidence and come to

an independent conclusion on fresh appreciation of evidence.

In the instant case on record, the main grievance of this

petitioner is that, the evidence was not properly appreciated by

both Respondent Nos. 2 & 5 and recorded a perverse finding.

Perverse finding means a finding without any evidence. In

Paragraph No.14 of the judgment in Subhash Ahuja and another

v. Union of India (referred supra), learned single Judge of

Himachal Pradesh High Court adverting to the judgment in

S.R. Tiwari v. Union of India10 held as follows:

"The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act r upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

If the principles laid down in the above judgments are

applied to the present facts of the case, the Court has to re-

appreciate the evidence while deciding the writ petition in a service

(2013) 6 SCC 602 MSM,J W.P.No.9825 of 2019

matter. Such review is impermissible, in view of the law declared in

B.C. Chaturvedi v. Union of India (referred supra).

The judgment relied on by the learned counsel for the

petitioner is pertaining to a civil dispute. Whereas, the other

judgments of the Apex Court referred above are directly on the

issue regarding service dispute. Therefore, those judgments are

directly applicable. Hence, I hold that the jurisdiction of the High

Court is limited under Article 226 of the Constitution of India and