Om Prakash vs The Regional Sales Manager, ...
2006 Latest Caselaw 937 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 2339

1. In these writ proceedings under Article 226 of the Constitution of India, the petitioner has questioned his dismissal from the services of the respondent employer (hereafter called "Milkfed") on 23-5-1995.

2. In March 1977, the Petitioner was appointed as Casual/Temporary workman in Punjab Diary Development Corporation. He was subsequently promoted as Diary Helper-cum-Cleaner and posted at Machiwara (Punjab). Sometime in 198, the plant, of Punjab Diary Development Corporation was taken over by the Respondent Milkfed Along with employees on the same terms and conditions. The petitioner's services too, were similarly taken over. In 1985 the petitioner was transferred to Delhi at his request and he was posted at different sales outlet at Delhi as Milk Bar Attendant which is a post of Diary Helper-cum-Cleaner.

3. On 30.10.1993, the petitioner was charge sheeted for three charges of committing acts of misconduct namely, embezzlement, indiscipline, insubordination, misbehavior, etc. The petitioner refuted the charges, and stated that he was not guilty of any act of misconduct. Milkfed was of the opinion that the reply or explanation was unsatisfactory. The Milkfed instituted a domestic enquiry. The enquiry was held after August, 1994. The petitioner participated in the enquiry, and its deliberations. On 24.12.1994, the Enquiry Report was submitted by the Enquiry Officer wherein charges No. 2 & 3 were held fully proved and charge No. 1 was held not proved. The report was furnished to the petitioner on 24.01.1995.

4. The petitioner responded to the enquiry report, and represented against it to the management of Milkfed. On 21.02.1995, the response to the Enquiry Report was considered by the Respondents but was found without Page 2340 any merits. By order dated 23.05.1995, the petitioner was dismissed from service on proved charges of misconduct. He appealed against the decision on 12.06.1995. The appeal was rejected on 14.08.1995.

5. The petitioner filed a writ petition, being CWP No. 3112/1995 before this Court, under Article 226 of the Constitution, challenging his dismissal from service. By an order dated 6.02.1996, the said writ petition No. 3112/95 was disposed off by this Court with the directions to pass a speaking order in the Appeal filed by the Petitioner.

6. On 11.04.1996, the petitioner was given a personal hearing by the Board of Directors of the Milkfed. By the order dated 30.04.1996, the appeal of the Petitioner was rejected by the Board of Directors of the Milkfed by a speaking order. This order reads as follows:

THE PUNJAB COOPERATIVE MILK PRODUCERS FEDERATION LIMITED

S.C.O. NO. 153-155, SECtor : 34-A, CHANDIGARH

The meeting of BOD of Milkfed was held on 11.04.1996 and the BOD has resolved Agenda Item No. 53.9 as under:

Item No. 53.9

To reconsider the appeal of Sh. Om Prakash, Ex. Dairy Helper-cum- Cleaner as per directions of the Hon'ble Delhi High Court :

CONTENTIONS, DISCUSSIONS AND RESOLUTION :

Shri Om Prakash personally appeared before the Board of Directors of Milkfed, Punjab on 11.04.1996, in its duly summoned meeting. He was asked to state any thing he wants to say over and above what he has stated in the enquiry proceedings as also with regard to his contentions in the appeal dated 12.06.1995 in r/o the charges proved against him by the Enquiry Officer. He explained the events before the Board. The Board gave due consideration to all the points raised by Sh. Om Prakash in his oral statement. After his statement certain clarifications were sought by the Board from the management which were replied to by Shri R.R. Shukla, Manager (Admn), as the Managing Director being the punishing authority in this case, was not present when the appeal was considered by the Board.

In his appeal dated 12.06.1995 Shri Om Prakash had raised certain issues which were strictly neither relevant to the chargesheet nor to the enquiry. Even, otherwise all factual controversies have been dealt with in the enquiry. Though these issues were not relevant to the charges but still position with regard to each of his contentions is under:

1. TRANSFER OF CLASS IV EMPLOYEES :

It was alleged by Sh. Om Prakash in his representation that a class IV employee could not be transferred from Delhi Sales Office.

It was, however, observed by the BOD that there is no bar on the transfer of a class IV employees to Delhi Sales Office and vice versa as there is an express provisions in the service rules of the Federation. There is also a clause in the appointment letter of Sh. Om Prakash that his service is liable Page 2341 to transfer. It was also observed by the BOD that a number of employees were transferred from Delhi Sales Office to outside units and from outside units to Delhi Sales Office either at their own requests or in organisations's interest. Moreover Sh. Om Prakash himself was transferred from Ludhiana to Delhi at his request. Therefore, the BOD did not find any force in the contentions of Sh. Om Prakash.

2. SENIOR STAFF BECAME BIASED

Sh. Om Parkash had alleged that senior staff, in Delhi sales Office was generally biased towards him.

It was observed by the BOD that during the course of personal hearing Sh. Om Parkash had not supplied any material in support of his contention that senior officers/officials were biased towards him. Even during personal hearing he could not quote any instance of such a prejudice. It was rather brought to the notice of the BOD that after the stay of his transfer orders Sh. Om Parkash became arrogant and started ignoring the lawful and reasonable orders of the superiors.

3. DENIAL OF UNIFORM

It was alleged by Sh. Om Parkash that he was denied uniform.

No evidence was available in the record in support of the contention nor this issue has any connection with the enquiry. On the other hand it was reported that he was offered uniform well in time but he did not receive it on the pretext that the cloth was inferior. However, he received the uniform after sometime.

4. DENIAL OF LEAVE WITH WAGES

It was found that Sh. Om Parkash remained absent from duty without permission from 13.11.90 to 14.12.90. Subsequently while reporting for duty he stated that he was sick and furnished a medical certificate in support of his alleged sickness. Management allowed him leave without wages and he was also warned to be careful in future in such matters. Sh. Om Parkash challenged this order in the Hon'ble Delhi High Court and the High Court ordered that if the leave was lying at the credit of the workman, he should be paid wages for the leave period as well. Orders of the Court were complied with. In fact this point has no relevance to the enquiry case against Sh. Om Parkash and even otherwise this can not be co-related the matter being quite old.

5. TRANSFER FROM MILK BAR PALAM AIRPORT -I

It was alleged by Sh. Om Parkash that he was transferred from Milk Bar Palam Airport-I to Inter State Bus Stand with malafide intentions.

The position has been checked up with reference to the records. It was brought to the notice of the BOD that there were serious complaints of adulteration of milk which was coming back unsold from the Palam Airport Milk Bar-I, Page 2342 Storekeeper was also complaining that unsold curdled SFM bottles were coming from the Milk bar. The centre of suspicion was Sh. Om Parkash but in the absence of specific proof no action could be taken against him. Therefore, it was considered appropriate to transfer him from Palam Airport Milk Bar -I to Inter State Bus Stand Milk Bar-I as an administrative measure without any consequential adverse effect to him. Such transfers are done in the best interest of employees as also the administration. However, he resisted the transfer and did not join there at all. During the course of personal hearing Sh. Om Parkash could not tell any unfair treatment to him in this transfer. Employees posted in milk bars are generally shifted from one milk bar to another after short intervals in routine.

6. REGARDING SALE PROCEEDS FOR 29.06.93 AND 30.06.93

It was alleged by Sh. Om Parkash that he handed over Cash to Mrs. Rita Rani, Clerk but she did not give any receipt.

Sh. Om Parkash could not produce any evidence that he actually handed over the cash to Mrs. Rita Rani. Even during the personal hearing he could not convince the BOD about his this contention.

7. It was alleged that no enquiry was conducted against him and no opportunity of hearing was given to him.

During the course of personal hearing Sh. Om Parkash stated that no enquiry was conducted against him nor he was given any personal hearing. The matter was checked up by the BOD with reference to the record and it was found that after considering his reply to the chargesheet a regular domestic enquiry was conducted in which he fully participated. After enquiry a copy of the enquiry report was sent to him for reply and the reply furnished by him was also considered before inflicting punishment upon him. Thus his contention was found to be baseless by the BOD.

8. It was also alleged by Sh. Om Parkash that Sh. Chhida Singh, Assistant was appointed by the Management as Enquiry Officer against whom he had given some complaints.

On examination of record it was found that Sh. Chhida Singh was not the E.O. Rather he was the Presenting Officer in the enquiry against Sh. Om Parkash.

As per the directions of the Hon'ble Delhi High Court, Board applied its mind on all the points raised by Sh. Om Parkash in his appeal. The personal record of Shri Om Parkash was also gone through. Some additional clarifications were sought for by the Board from both the sides.

After considering all the contentions as finding mention in the representations dated 12.06.1995 with regard to agenda item (including documents) and the points raised by Shri Om Parkash, in his statement, the Board find no grounds to differ with its earlier decision and accordingly upholding the action taken by the punishing authority vide his orders issued under Endst. No. PSF/Admn/FA.II/RK3/18108-36 dated 15.05.95, reject the appeal of Shri Om Parkash.

Page 2343

It is true copy of the meeting of the BOD of Milkfed and the Minutes Book is in the custody of milkfed, Head Office.

Sd/-

Manager (Admn.) Milkfed; Punjab.

EA-II, Milkfed, Admn. Section 
Endst. No. PSF: Admn: F.A.3: 13952            Dated 30.04.96
 

7. The petitioner argued the case himself. He submitted that the enquiry and the entire action, dismissing him from the services were vitiated, on account of bias which his superior officials had developed against him. It was submitted that as per his service conditions, his transfer from the Palam office to ISBT was mala fide. When this was represented against, the management took a hostile attitude, and decided to somehow get rid of him.

8. It was contended that the main charge pertained to withholding of cash from the concerned official, Ms. Rita Rani. The petitioner submitted that the charge was baseless, and false; he had to go out of town, and had handed over the cash to the employee. However, she, for reasons best known to her, wanted to implicate him, and make him a scapegoat. She therefore falsely reported that the amount had not been handed over to her. The petitioner submitted that there was no truth in the allegation of his having misbehaved with Ms. Rita Rani; such charges were motivated, with a view to fix him. It was contended that the money, for the collection on 29th and 30th June 1993 was handed over to her on 1-7-1993. As per practice, she used to visit the counters every two days to collect the cash. After collecting the amount, that day she showed him the duty roaster for the next month, which indicated that the petitioner was transferred to the ISBT Milk booth. As he was residing at Palam, which meant that he would have to commute for a total of four hours each day, he became miserable and protested to Ms. Rita Rani, who in turn complained, falsely, about alleged misbehavior on his part. The petitioner contended that as per past practice, Ms. Rita Rani did not sign the PD-43 form or sales register, since she would do so together, as both of them had trust in each other. The petitioner claims that he had to performed double duty on 1-7-1993, since another employee, Anita was absent. At the end of the second shift, he went and deposited Rs. 6000/- or so, with one Satish, at the Palam-II sales counter. It was submitted that the next day was an off-day; he went to plead for reversal of his transfer order . At that time, no one questioned him about the alleged shortfall of Rs. 9023/- and he went on leave.

9. The petitioner placed considerable reliance on the circumstance that an internal investigation was carried out, by Shri Wadhawan, Area Sales Manager, who considered the versions of the petitioner and Ms. Rita Rani, and concluded that no conclusion could be arrived at. The petitioner also submitted that Shri Wadhawan supported this case, in the course of the departmental proceeding, and therefore, the entire enquiry and charge of misconduct was an after thought, with the sole view getting rid of his services.

10. The petitioner submitted that the departmental enquiry was conducted in a hostile, and biased manner, and he was not given proper opportunity to answer the charges, or the evidence led in the proceedings. It was submitted Page 2344 that the Court can, upon a fair appraisal of the records of proceedings, which are a part of the judicial record, conclude that they were held in an unfair manner, and quash the order of dismissal. It was also submitted that the report of the enquiry officer was not based upon any evidence or materials, and relied exclusively upon the biased and prejudicial evidence led before him. It was submitted that the enquiry had concluded that the petitioner was not guilty of one charge; the only serious issue related to the alleged wrong behavior of the petitioner and the charge of his not handing over cash, both of which were not proved.

11. Learned counsel for the respondent, Milkfed, resisted the proceedings, and submitted that this Court cannot exercise writ jurisdiction under Article 226 of the Constitution of India, since the Milkfed is not a "State" under Article 12 of the Constitution of India, nor does it perform any functions of a public nature. It was claimed that the State or the Central Government do not have any dominant control over the functioning, or finances of Milkfed; therefore this Court cannot exercise jurisdiction under Article 226 of the Constitution of India.

12. Learned counsel relied upon the decisions of the Supreme Court, reported as General Manager, Kisan Sahkari Chini Mills Ltd. v. Shatrughan Nishad and Ors. : 2003 FJR Vol. 103 pg. 889 (SC) wher it was held that a co-operative sugar Mill is not a ''State' within the meaning and scope of Article 12 of the Constitution.

13. Counsel submitted that since disputed questions of fact have been raised by the petitioner workman, therefore, the appropriate remedy for adjudication of the dispute is an industrial dispute, to be adjudicated by a Labour Court/Industrial Tribunal created under the Industrial Disputes Act, 1947, a special legislation for determining factual controversies and adjudicating industrial disputes.

14. Counsel also contended that the petitioner was charge-sheeted for misconduct. A proper inquiry was held, during which the management followed the procedure applicable, and also complied with principles of natural justice. The petitioner participated in the inquiry. The inquiry officer held the petitioner guilty of the important charges. All these aspects were considered by the management, while imposing the penalty of dismissal. The petitioner's appeal too, was considered in detail, and a speaking order upholding the dismissal order was passed. Counsel relied on the judgment in Damoh Panna Sagar Rural Regional Bank and Ors. v. Munna Lal Jain : 2005 LLJ Pg. 730 (SC), where the Supreme Court held that in the case of embezzlement of funds of the employer, no interference in punishment is called for and the order of punishment of dismissal from service was upheld by the Court.

15. The petitioner was charged with three counts of misconduct. The first charge related to incidents where curdled milk was discovered; it was alleged that the petitioner used to dilute milk with water. The enquiry officer exonerated him of this charge. The second charge pertained to the incident of 1-7-1993, when the petitioner allegedly misbehaved, and did not hand over cash to Ms. Rita Rani. The third charge related to insubordination, and misbehavior in the office of Milkfed on 24-8-1993, when the petitioner Page 2345 refused to comply with the directions and went away without performing his duties.

16. The entire record of enquiry proceeding has been produced along with the writ petition. It shows that the enquiry was held on ten different dates. The management of Milkfed relied upon depositions of five witnesses, including Ms.Rita Rani, who was cross examined, as also Shri Wadhawan, and Shri Chidda Singh. The petitioner cross-examined all the witnesses, and examined himself in support of his defense. The findings of the enquiry officer read as follows:

I was appointed Enquiry Officer vide head office letter No. PSL/ADMN/EAII/RK-3/5354-56 dated 10.02.1994 to conduct domestic enquiry into the charges levelled against Shri Om Parkash, DHCC vide charge sheet No. PSF/DAII/38876-77 dated 30.10.93.

Accordingly, Sh. Om Parkash, DHCC was informed about the date of domestic enquiry fixed for 22.04.1994 at 11.00AM vide my letter No. PSF/DDLI/EO/32-33 dated 08.04.1994 marked as EO-1. On this date Shri om Parkash objected and returned the said communication letter with some unwanted/hopeless remarks (copy enclosed and marked as EO-2) for which Head Office was informed and in turn and place fixed by ED from time to time vide head office letter No. PSF/ADMN/EAII/RK-3/16901-03 dated 12.05.94 (copy enclosed and marked EO-3). In view of the above objections of the defendant, next date was fixed on 11.05.94. On 11.05.94, introductions, enquiry proceedings were recorded and Shri Om Parkash, DHCC (defendant) was given the list of Management witnesses/ records to be produced before the EO and was also told that the procedure of the enquiry. Nest date was fixed for Management witness on 26.05.94 at 11.00Am.

MANAGEMENT WITNESSES :

On 11.05.94, Shri S.S. Wadhawan, ASM was produced as Management witness No. 1 (M.W.1) before me. Shri Wadhawan got his statement recorded. In his statement he stated that Sh. Om Parkash, DHCC was posted at Milk Bar Palam-I. He also produced photocopy of duty roaster indicating the post of Shri Om Parkash, DHCC at the said milk bar during the month of April, May, and June 1993. He said that unsealed curdled SFM Bottles were being returned to store by the Milk Bar Staff. He also produced photo copy of MR Note vide which unsealed curdled SFM were returned to store by Shri Om Parkash, DHCC. He also stated that when there were repeated complaints about curdling of SFM, Sh. Om Parkash, DHCC was shifted from Milk Bar Palam I to Milk Bar ISBT w.e.f. 02.07.93. Sh. Tirath Singh, ASR holding the charges of Store Keeper and Shri Baljit Batish, FSR looking after the marketing of milk and milk products and as well as stores matters, in the absence of Shri Tirath Singh, FSR, were also appeared in the enquiry and got their statement recorded. Both of them confirmed that there were complaints about curdling of SFM bottles and adding water in the bottles at Milk Bar Palam -I.

First of all, Shri Wadhawan, ASM was produced as Management witness. He told that Mrs. Rita Rani, Clerk was deputed to collect the Page 2346 cash against sales proceeds from the milk bars went to collect the cash on 01.07.93 but as informed by Mrs. Rita Rani, Clerk, Sh. Om Parkash, DHCC did not hand over the sales proceeds (cash) to her. Thereafter he called Mrs. Rita Rani, Clerk and deposit the cash with the office but when it was not got deposited by them the matter was conveyed to head Office for necessary action. After that Mrs. Rita Rani, Clerk was produced as Management witness. She told that as per her routine duty, she went to milk bar Palam to collect the sales proceeds (cash) for 29th and 30th June, 1993. She also took the duty roaster effective w.e.f. 02.07.93 for getting the same noted by all Milk Bar Staff for compliance. She stated that after collecting the cash from Milk Bar Palam II, she reached Milk bar Palam - I and asked shri Om Parkash, DHCC to hand over the cash (sales proceeds as per routine matter), She also served the copy of duty roaster to Sh. Om Parkash, DHCC and on seeing his posting at Milk Bar ISBT, he became furious and used unwanted language to her and also refused to hand over the cash for which he informed the ASM on telephone and as well as in writing.

Shri. Chhidda Singh, Assistant (Admn), MR also appeared as Management witness & got his detailed statement recorded. During his statement he stated as and when any official is deputed to collect the cash from Milk Bars, he collect the cash for onward depositing in the office and gives receipt of cash in token of his having received the cash on PD-43 or sales register. He showed the official records showing the receipt of cash or PD-43 and sales register on different dates. He stated that in the instant case, there is no receipt of cash for 29th and 30th June, 1993 on PD-43 as well as sales register which may show that cash was received by Mrs. Rita Rani and in the absence of any receipt of cash of Mrs. Rita Rani, it is undisputed proof that no cash was handed over by Shri Om Parkash, DHCC to Mrs. Rita Rani, Clerk.

In respect of the third charge against Shri Om Parkash, DHCC, S/sh. Raj Pal Singh, Accounts Clerk, Shri Tirath Singh, FSR, Shri Baljit Batish, FSR and Shri Chhidda Singh, Management Representative, (Assistant (Admn)) were produced as Management witness and all of them got their statements recorded in the presence of Shri Om Parkash, DHCC Shri Raj Pal Singh, Accounts Clerk stated that on 24.08.93 at about 12.45 PM, he asked Shri Om Parkash to go to Indian Overseas Bank, Karol Bagh to deposit the cheque for telephone bill but firstly , he ignored but when he was repeatedly asked to do the job, he told that he is hungry and first of all he will take his lunch and thereafter will go to bank. when he was told that luch time is 1.30 pm to 2.00 pm, he refused to obey any official instructions. Moreover, Shri Om Parkash, DHCC also used some unwanted/ undesireable language such as Rajpal Too Hota Kan Hai Mujhe Kaam Batane Wala. when Shri Om Parkash refused to do the work told by me that the matter was brought to the notice of Shri. H.C. Saini, D.M. A/cs and Shri Chhidda Singh, Assistant Admn and they also asked him to attend the job but he did not obey their instructions also. Thereafter, Shri Tirath Singh, FSR, Baljit Batish, FSR and Chhidda Singh, Assistant Admn appeared as Management witness Page 2347 as they were present in the office at that time and were also eye witness of the said incident. All of them confirmed the misbehavior and indispline committed by Sh. Om Parkash, DHCC on 24.08.93. Sh. Chhidda Singh, Assistant (Admn) got his detailed statement recorded. He also confirmed the indispline & misbehavior committed by Shri Om Parkash, DHCC. He also stated that Shri Om Parkash, did not obey his instructions also and remained seated on his seat. He further told that at about 1.45 PM. Shri Om Parkash, DHCC came to him and asked for half day leave but he was told that Shri H.K. Kakkar, the then Officer in charge is to come to office after attending a meeing in the NCDFI office and he is to be produced before him for the insubordination, indiscipline and misbehavior committed by him but Shri Om Parkash, DHCC did not bother to listen rather left the office4 with the remarks. I am going to my house. Mark me absent or half day leave thereafter, Shri Om Parkash, DHCC did not turn up for duty up to 30th August, 1993 and thus remained absent from duty for the period 24.08.93 to 30.08.93. The attendance register was shown in which he was marked absent for the said period. On 31.08.93, Shri Om Parkash came to office and appeared before Shri H.K. Kakkar, DMM, Officer in charge of BO, Delhi. He requested for taking him on duty and also showed his willingness to do duty at Milk Bar ISBT. w.e.f. 01.09.93, Shri Kakkar also collected information from him for the indiscipline/ misbehavior committed by him on 24.08.93. Shri Kakkar also collected information about the said incident of 24.08.93 from the officials present in the office on 24.08.93 and were also eye witnesses. The Statements of Shri Chhidda Singh, Assistant Admn, Baljit Batish, FSR, Tirath Singh, FSR, Mrs. Usha Kundra, FSR were got recorded in a tape in the presence of Sh. Om Parkash, DHCC. His own statement was also got taped and the said cassett was produced to me and have heard the said cassetts.

defense STATEMENT :

Shri Om Parkash, DHCC defendant was given full opportunity for cross-examining the Management witness. All the records required by sh. Om Parkash, DHCC was provided / shown to him. Sh. Om Parkash fully participated in the domestic enquiry. during his defense statement, Sh. Om Parkash, DHCC denied all the charges but he did not produce any documentary proof in the support of his statement. Rather during the cross examination with the MR Sh. Om Parkash confessed some charges involving the charges number 2 and 3. He did not produce any document/proof which may show that he had handed over the cash of Rs. 9023/- to Mrs. Rita Rani, Clerk. Moreover, he confessed that he did not obey the official instructions regarding getting the cheques deposited in the Bank and remained absent form duty w.e.f. 24th August, 93 AN to 30.08.93.

I have gone through the proceedings of the domestic enquiry, statements of Management witnesses, documents produced by the Management representative, Statement given by Shri Om Parkash, DHCC in his defense and his cross examination with the Management representative/ Page 2348 Management witness. I have also heard the video Cassett having the statement of Shri Om Parkash, DHCC and Management witness. On going through the proceeding, I am of the view that charges No. 2 and 3 have been fully proved without any doubt. However, the charge No. 1 is not proved. Accordingly, the charges No. 2 and 3 stands fully proved.

Report - Along with the proceedings, documents produced in the domestic enquiry counting 85 pages is submitted for consideration and further appropriate action.

Sd/-

ENQUIRY OFFICER

17. In view of the above background of facts, what has to be examined, is whether the proceedings under Article 226 of the Constitution of India are maintainable, and whether the enquiry, leading up to the impugned order of dismissal, was illegal, or arbitrary.

18. In support of the preliminary objection about maintainability, the respondent has averred that it is a federation of co-operatives, being an apex body. The management, and financial control is with the general body, and other institutions, are in terms of its constitution and bye-laws; the shareholding in Milkfed is of individual co-operatives. It is submitted that the shareholding of the Government can be returned, in a time bound manner. The counsel had contended that all these clearly point out that there are no features present which satisfy the test of the respondent being a 'State' within the meaning of Article 12 of the Constitution of India.

19. These proceedings have been pending for the last 10 years or so; the petitioner had approached the court earlier too, which led to issuance of a speaking order by the appellate authority of the Milkfed. The respondents have not supported their pleas, by producing copies of the Constitution and Bye-laws. In such cases, even if there is some substance about the plea regarding maintainability, I am of the opinion that this Court cannot shrug its responsibility to examine the merits of the dispute, between the parties. Therefore, without going into the issue of maintainability, I am proceeding to consider the rival contentions regarding the legality of the dismissal order issued against the petitioner.

20. The scope of proceedings, under Article 226 of the Constitution while considering the merits of findings rendered by an enquiry officer in disciplinary proceedings was considered, and outlined, in the decision of the Supreme Court, reported as B.C. Chaturvedi v. Union of India :

12. 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 Page 2349 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 there from, 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 re-appreciate 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.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

The judgment has been subsequently followed in many other decisions.

21. The Supreme Court, in earlier decisions, had explained what is meant by 'perversity' in the findings of the enquiry officer, in departmental proceedings. In Central Bank Of India Ltd., New Delhi, Petitioner v. Shri Prakash Chand Jain , it was held as follows:

The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State of Andhra Pradesh v. S. Sree Rama Rao , where this Court had to consider whether a High Court, in a proceeding for a writ under Art. 226 of the Constitution, could interfere with the findings recorded by departmental authority till disciplinary proceedings taken against a Government servant, The Court held :

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 Page 2350 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 Art. 226 of the Constitution.

In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal. Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases, the findings are treated as perverse.

The law was reviewed, and re-iterated, again, in Kuldeep Singh v. Commissioner of Police , where the Supreme Court held as follows:

8. The findings recorded in a domestic enquiry can be characterized as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain and Bharat Iron Works v. Bhagubhai Balubhai Patel . In Rajinder Kumar Kindra v. Delhi Admn. it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of 'guilt' is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

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10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

22. The merits of contentions raised in these proceedings, have, therefore, to be adjudicated, in the light of the principles contained in the above decisions. The enquiry officer, in this case, exonerated the petitioner of the first charge. Therefore, no discussion is called for on that score. On the second charge, which appears to be the main one, the substance is in two parts; the petitioner's objectionable behavior upon being informed about the change in duty roaster, on 1-7-1993, and the charge of not handing over money to Ms. Rita Rani. The petitioner had contended in the course of enquiry, as well as these proceedings, that the money had been in fact handed over, and that the officer, Ms. Rita Rani did not sign the requisite forms and register. He had also relied upon the investigation conducted by Mr. Wadhawan, to state that he was unable to conclude that there was any misconduct or misbehavior by the petitioner.

23. The petitioner's contentions do appear attractive; however in the course of enquiry, the depositions of Shri Wadhawan and Ms. Rita Rani were considered. Furthermore, significantly, after the petitioner sought to suggest that receipt of amounts were not being evidenced as per a routine, or as per some alleged practice, the relevant registers and copies of forms were produced, to refute such suggestions. They apparently indicated that when money was handed over, the signatures were affixed in two sets of documents. On the two dates in question, viz 29th and 30th June 1993, no such procedure was followed. The enquiry officer considered all these materials, and also the depositions in support of the third charge, which is primarily of misbehavior, insubordination and refusal to carry out orders. He concluded that the charges had been proved.

24. It has been remarked in some decisions, although in a somewhat different context, that the standard of proof in enquiry proceedings is not the same as in criminal proceedings; in State of Rajasthan v. B.K. Meena, the Supreme Court held that :

In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.

This formulation of law has been subsequently applied in other cases, by the Supreme Court, as well as this Court.

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25. The findings of the inquiry officer which led to imposition of penalty of dismissal were preceded by deposition of witnesses of the management. They were cross examined by the petitioner. He too, deposed elaborately in the enquiry proceedings. The proceedings spanned 10 days; the recording of depositions is elaborate. The analysis of evidence by the inquiry officer is somewhat terse, and cryptic. That circumstance alone, however cannot impel the court to rush in and interfere with the employer's action, because no prejudice was shown, or is apparent. The petitioner and the management knew what were the findings; they proceeded with their respective rights.

26. It might possibly be argued that this Court, sitting as an authority or forum of first instance, or even exercising appellate power can reach findings, in this case, which are contrary to those rendered by the enquiry officer. But the jurisdiction under Article 226 does not admit such conclusion. Neither do the facts and records reveal procedural irregularity or impropriety of such magnitude as to compel judicial intervention. The findings cannot also be called 'perverse' within the meaning of the expression as spelt out in the judgments of the Supreme Court. Therefore, the complaint of illegality or arbitrariness, made by the petitioner, is devoid of merits. I do not also find that the penalty of dismissal is disproportionate in the sense that it shocks the conscience of the court, as to call for a direction to the management to review it, as per the decision in B.C. Chaturvedi's case.

27. In view of the foregoing findings, the writ petition is dismissed; Rule discharged. No costs.