Delhi High Court

Sh.Poorna Singh Kain vs Union Of India & Ors. on 12 September, 2008

Author: Anil Kumar

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P(C) No.3152 of 1993

%                     Date of decision : 12.09.2008


Sh.Poorna Singh Kain                             ....... Petitioner
                           Through:    Mr.M.L.Chawla, Advocate.

                           Versus

Union of India & Ors.                             ....... Respondents
                           Through :   Mr.V.K.Rao, Advocate.



CORAM :-
 HON'BLE MR. JUSTICE ANIL KUMAR

     1. Whether reporters of Local papers may           YES
        be allowed to see the judgment?
     2. To be referred to the reporter or not?          NO
     3. Whether the judgment should be reported         NO
        in the Digest?


ANIL KUMAR, J.

1. This is a petition under Article 226 of the Constitution of India

seeking quashing of order dated 10th April, 1989 imposing a penalty of

stoppage of one increment without cumulative effect for the misconduct

committed by the petitioner and for refund of Rs.3,998/- falsely claimed

as LTC expenses and for quashing of order dated 11th September, 1990

of the Appellate Authority and order dated 21st March, 1991 of the

reviewing authority.

2. The brief facts to comprehend the controversies are that the

petitioner was posted as Assistant Engineer in Kahalgaon, Super

Thermal Power Project in Bihar and he went on leave travel concession

to Bombay on 8th May, 1983 and returned from Bombay to New Delhi

on 13th May, 1983. The petitioner alleged that he purchased first class

ticket for himself and his six family members dependant on him for

both sides of the journey. The plea of the petitioner is that for the

journey to Bombay their tickets were not confirmed and they could not

get proper berths, however, they were accommodated and they travelled

sitting throughout the journey. While returning from Bombay on 13th

May, 1983 the tickets of the petitioner were not confirmed and they

were wait-listed and consequently the petitioner and his family

members boarded the train at night in second class. The petitioner

alleged that the Railway Travelling Ticket Examiner had assured that

the petitioner and his family members shall be accommodated at Surat.

Since no accommodation was available in first class, he was left with no

choice but to travel in second class upto Surat and thereafter they sat

in first class compartment unreserved upto New Delhi.

3. The assertion of the petitioner is that he submitted his LTC claim

bill on 12th August, 1983 amounting to Rs.3,998/- towards his claim for

both onward and inward journeys undertaken by the petitioner and the

members of his family against an advance of Rs.4020/- and a refund of

Rs.22/- of travelling allowance advance was also made. The claim of

Rs.3,998/- was allowed and passed by the competent authority.

4. Almost three years after his LTC bill was approved and passed the

petitioner was chargesheeted on 11th November, 1986 on the allegation

of filing a false LTC claim. It was alleged against the petitioner that

while travelling, the petitioner did not travel by first class and his two

children namely son Master Arun Kain and daughter Ms. Pinky were

minor. However, the petitioner claimed full ticket for his son and half

ticket for his daughter Ms.Pinky, though she was below 5 years of age

and, therefore, no ticket was required. The petitioner contended that the

chargesheet was issued 2½ years after the LTC claim was settled and in

the meantime all the records of reservation etc. maintained by the

Railways had been destroyed as according to Railway procedure and

practice the record is maintained for six months only. The petitioner

also asserted that his promotion was due on 1st July, 1986 and his case

was processed and he also appeared for test and interview. His next

promotion was for S-4/E-1 grade and his name was approved by the

DPC after the petitioner appeared for test and interview in July, 1986

and his name was included in the panel according to his information,

however, he was not promoted and an undertaking for posting outside

Delhi/Dadri was taken from the petitioner.

5. Regarding the enquiry conducted, petitioner has contended that

the principles of natural justice were not complied with as the enquiry

officer at many stages had assumed the role of a prosecutor. It was

pleaded that while conducting cross examination of prosecution witness

Sh.K.A.Hanfi, many relevant questions put to him in the cross

examination were not allowed in as much as the report of the

investigating vigilance inspector was allowed to be referred to but was

not shown to the petitioner. It is alleged that the report of investigating

vigilance inspector was the basis of the chargesheet, however, the same

was not shown to the petitioner which was also submitted 2½ years

before the chargesheet was issued to the petitioner.

6. The petitioner also challenged the enquiry proceedings on the

ground that day to day enquiry proceedings were not supplied to him

and even the statements of prosecution witnesses as well defence

witnesses and the order-sheets were not given to him.

7. The petitioner also relied on a letter dated 23rd May, 1987

addressed to disciplinary authority seeking change of enquiry officer on

the ground that he is prejudiced and biased and the petitioner lacks

confidence in him. However, his request was declined and

communicated to the petitioner by letter dated 29th July, 1987 from

Senior Superintendent, Mr.N.P.Singh. The enquiry officer gave a report

dated 1st November, 1988 holding the petitioner liable for the

misconduct which was accepted by the disciplinary authority and the

penalty of stoppage of one increment without cumulative effect and a

direction for refund of Rs.3998/- was passed by order dated 10th April,

1989.

8. An appeal was filed against the order of the disciplinary authority

dated 10th April, 1989 which was also dismissed by General Manager

(B), Appellate Authority by order dated 11th September, 1990. A revision

was filed by the petitioner against the dismissal of his appeal by order

dated 11th September, 1990 which was also dismissed by the reviewing

authority by his order dated 21st March, 1991.

9. The petitioner has challenged his punishment on the ground that

the chargesheet was vague; copies of the documents were not

furnished; report of investigating inspector was not shown to him;

additional witnesses and documents were not allowed; day to day

proceedings were not given to him; copies of the statements of witnesses

recorded were not given; the enquiry officer was prejudiced and biased,

however, his request for change was not accepted; cross examination of

defence witnesses was done by the enquiry officer; the findings of the

enquiry officer are cryptic and without any rational basis; the order

imposing punishment is a non speaking order and the orders passed by

the appellate and reviewing authority were also cryptic and without

application of mind.

10 The petitioner has also challenged the imposition of penalty on

the ground that same tantamount to double jeopardy in as much as his

promotion in 1986 was also withheld on account of disciplinary

proceedings and the policy of promotion in the circumstances is not in

accordance with the statutes of the company and deserves to be struck

down. It is also alleged that there is an undue delay in issuing

chargesheet 2½ years after his bills for LTC were passed and approved.

It is also contended that the petitioner has been singled out though

there had been similar cases of LTC claims of other staff members. The

petitioner has also relied on birth certificate dated 4th August, 1987 of

Pinki issued by Pradhan, Gaon Sabha Nangal Raya under the

Registration of Birth and Deaths showing the date of birth of baby Pinky

as 1st January, 1978. The reliance has also been placed on the birth

certificate dated 4th August, 1987 of the son namely Arun Kain showing

his date of birth as 22nd July, 1970.

11. The petitioner has relied on Mohanbhai Dungarbhai Parmar v.

Y.B.Zala and Another, 1980 All India Services Law Journal page 477 to

contend that non compliance of the conduct and discipline rules of

National Thermal Power Corporation Ltd. will vitiate the penalty

imposed upon the petitioner. In order to substantiate the plea of the

petitioner that the disciplinary, appellate and reviewing authority have

passed the orders mechanically without dealing with the contentions of

the petitioners, the reliance has also been placed on R.P.Bhatt v. Union

of India and Ors, A.T.R 1986 SC 149 and Ram Chander v. Union of

India and Ors, A.T.R.1986(2) SC 252. The petitioner has also relied on

the judgment of a Single Judge of Madras High Court M.Vishwanathan

v. Government of Tamil Nadu and Ors, 1989 Lab.I.C.1567 to contend

that though the petitioner was entitled for promotion in 1986the

petition filed by the petitioner in 1993 for his promotion was

maintainable and the promotion could not be denied to him.

12. The petition is contested by the respondent contending inter-alia

that in exercise of its jurisdiction under Article 226 of Constitution of

India, this Court will not re-appreciate the evidence and draw different

inferences than the inferences drawn by the enquiry officer. It is

asserted that the enquiry was conducted in accordance with the

principles of natural justice. It is contended by the respondent that the

punishment imposed on the petitioner is of a mild nature considering

the charges framed against him as he had involved himself in an act

unbecoming of a Government servant. The plea of the respondents is

that petitioner indulged in an act unbecoming of a Government servant

by fraudulently claiming the LTC for the block year 1980-81. The

respondents also pleaded that the chargesheet reflects various

ingredients of different charges and even if one of the charge stood

proved against the petitioner, it was enough for the disciplinary

authority to impose the punishment. The respondent specifically

contended that the petitioner travelled from Bombay to New Delhi in

second class and not upto Surat as was alleged by the petitioner.

According to the respondents the petitioner has concocted the story and

as per his own statement at the time of admission of his children in

Central School the date of birth of his son was disclosed as 22nd June,

1974 and the date of birth of his daughter was disclosed as 1st January,

1979. The date of birth certificates produced by the petitioner showing

the date of birth of son as 22nd July, 1970 and 1st January, 1978 are

stated to be after thoughts. It is stated that the petitioner has

manipulated the subsequent certificate alleged to have been issued by

some Pradhan of a village. Regarding the delay in initiating the

proceedings, it is stated that the investigation took time and thereafter

the approval from the authorities was required and considering the

facts and circumstances there is no such delay which will entail the

consequence of quashing of disciplinary proceedings against the

petitioner.

13. I have heard the learned counsel for the parties in detail and have

also perused the files of the disciplinary proceedings and the precedents

cited by the parties. Perusal of the case law on the issue of the scope of

interference in a domestic enquiry and applicability of the strict and

sophisticated rules of evidence to the domestic enquiry clearly

establishes that once a domestic tribunal based on the evidence arrives

at a particular conclusion, normally it is not open to the Appellate

Tribunals and courts to substitute their subjective opinion in the place

of the one arrived at by the domestic tribunal. Thus if an enquiry held is

consistent with the rules and in accordance with the principles of

natural justice and the misconduct is proved, then the Tribunal has no

power to substitute its own discretion for that of the said disciplinary

authority, unless it is mala fide, arbitrary or the findings are quite

perverse. If an enquiry is properly conducted, then the departmental

authorities are held to be the sole judges of the facts and if there is

some legal evidence on which the findings can be based, the adequacy

or reliability of that evidence is not a matter which can be argued upon

or disputed before the Tribunal. The following judgments rendered by

the Supreme Court fortify the aforesaid conclusion:

(i) Martin Burn Ltd. v. R.N. Banerjee, 1958 SCR 514.

(ii) State of Orissa v. Bidyabhushan, AIR 1963 SC 779

(iii) State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723

(iv) State Bank of India and Ors. v. Samarendra Kishore Endow and Anr., (1994) 2 SCC 537

(v) Regional Manager, Rajasthan SRTC v. Sohan Lal, (2004) 8 SCC 218

(vi) Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489.

(vii) Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254

(viii) Muriadih Colliery v. Bihar Colliery Kamgar Union, (2005) 3 SCC 331

(ix) V. Ramana v. AP. SRTC, (2005) 7 SCC 338

(x) Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors., (2006) 1 SCC 430

(xi) L.K. Verma v. H.M.T. Ltd and Anr., (2006) 2 SCC 269

14. From the ratio of these judgments it is apparent that this court in

exercise of its jurisdiction under article 226 of Constitution of India is

not to substitute with the inferences drawn by the disciplinary authority

and Appellate authority with its own inferences. In (2006) 2 SCC 373 ,

at page 378 Govt. of A.P. v. Mohd. Nasrullah Khan the Supreme court

had held:

11. 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 reappreciating the evidence as an appellate authority.

15. Thus it is a settled position of law that in exercise of jurisdiction

under Article 226 of the Constitution of India, the High Court is not to

interfere with factual findings of the disciplinary authorities and should

restrain itself from re-appreciating evidence while exercising powers of

judicial review. Writ court is not to interfere with the orders of an

inferior tribunal or subordinate court unless their order suffers from an

error of jurisdiction or from a breach of the principles of natural justice

or is vitiated by a manifest or apparent error of law. The objective of

judicial review is that a person receives a fair treatment and objective is

not to re-appreciate the entire pleas and evidence and draw inferences

again. 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.

16. The misconduct which has been alleged against the petitioner is

that though he did not travel first class from Mumbai to New Delhi,

however, he claimed the LTC expenses for first class fare and he

claimed the fare for his minor son and minor daughter not according to

their age. The Enquiry Officer has considered the pleas and contentions

of the parties, especially the explanations given by the petitioner. The

disciplinary authority has also considered the pleas raised by the

petitioner. While disposing of the appeal dated 20th April, 1989 against

the order dated 10th April, 1989 the pleas and contentions on behalf of

the petitioner has been considered.

17. The Enquiry Officer did not give any credence to birth certificates

dated 4th August, 1987 issued in respect of the minor daughter,

Ms.Pinky as the same pradhan who had issued the certificate on 4th

August, 1987 had issued another certificate giving another date of

birth. It was noticed that the petitioner himself had stated the date of

birth of his son Master Arun Kain as 22nd June, 1974 in a letter

addressed by him to Senior Personnel Officer on 7th July, 1983 and in

another declaration he had given the date of birth of his daughter, Ms.

Pinky as 1st January, 1979 and just a few days after the said

declaration, the petitioner had filed his claim on 13th August, 1983 and

the amounts were claimed which were not in consonance with the ages

as declared. The certificates which have been relied by the petitioners in

the enquiry proceedings were issued almost 4 years after the claim for

LTC was filed which have not been accepted by the authorities. The

disciplinary authority and the Enquiry Officer have considered these

aspects. The appellate authority and reviewing authority have

concurred with the inferences drawn. In the circumstances, it is not

possible for this Court to draw different inferences.

18. The learned counsel for the petitioner has very emphatically

argued that competent authority accepted the findings of the Enquiry

Officer without application of mind and without appreciating the facts.

It is also contended that the Enquiry Officer was biased and did not

allow the petitioner to cross examine the witnesses of the respondent on

some material aspects. Perusal of the record and the representations

made by the petitioner to the respondent, however, reveals that no such

allegation that the petitioner was not allowed to cross examine on

certain aspect, was made against the Enquiry Officer. The learned

counsel for the petitioner has pointed out a letter dated 23rd May, 1987

written by the petitioner to Sh.N.P.Singh, Sr.Superintendent, Appellate

Authority. Perusal of the copy of the said communication, however,

reveals that the allegations are regarding the alleged help rendered by

the Enquiry Officer by showing the documents on record to the

witnesses of the respondent before recording their answers. The

allegations were also made that in some instances the enquiry was

conducted in the absence of presenting officer and the copies of the

statements of the witnesses and proceedings were not given and

consequently he had lost faith in the Enquiry Officer. In the

circumstances, the plea now raised by the petitioner that the witnesses

were not allowed to be cross examined on some material aspect, is

apparently an afterthought. The learned counsel for the petitioner is

unable to show from the grounds of appeal filed before the Appellate

Authority that such a ground was taken that the petitioner wanted to

cross examine the witnesses of the respondents 2 to 4 on some material

aspect which was declined without any justification. Consequently, the

plea of the petitioner in this respect also cannot be accepted.

19. The other grievance of the petitioner is that he was not allowed to

summon certain witnesses. The Enquiry Officer has dealt with the plea

of the petitioner regarding such witnesses and has held that he did not

have jurisdiction to summon an external agency or documents

especially because the petitioner could have obtained the copies of these

documents from the concerned offices. Nothing has been produced by

the petitioner to show that the copies of the documents which he

wanted to produce had been destroyed. On the contrary on the basis of

the record of the Railway Authorities, a document was produced by the

respondents 2 to 4 which has not been challenged by the petitioner. No

suggestion was given to the witness who had obtained the said

document from the Railways authorities that the document produced by

him was not in consonance with the Railway record. In the

circumstances on the grounds as has been raised by the petitioner

there does not appear to be any manifest error or such illegality which

will require interference by this Court by re-appreciating all the

evidence and reaching different inferences than as has been drawn by

the disciplinary authority and the Enquiry Officer. The inferences drawn

by the Enquiry Officer, disciplinary authority, appellate authority and

reviewing authority are feasible in the facts and circumstances and in

exercise of its jurisdiction under Article 226 of the Constitution of India,

this Court does not have to substitute the inferences drawn by the

authorities with its inferences. In any case this Court does not find any

reason to differ from the inferences drawn by the authorities.

20. In R. P. Bhatt (Supra) relied on by the petitioner, the Supreme

Court considered whether the order of Director General, Border Roads

Organization was in conformity with Rule 27 (2) of Central Civil Service

(C.C.A) Rules. The order impugned was a mechanical reproduction of

the phraseology of Rule 27(2) and only stating that the punishment

imposed was just and in accordance with rules. In these circumstances

it was held that the appellate authority has not only not given a proper

hearing to the Government servant concerned but had also not passed

a reasoned order dealing with the contentions raised by him in the

appeal. The precedent relied on by the petitioner is clearly

distinguishable in the facts and circumstances as the appellate

authority and reviewing authority passed the orders after giving hearing

to the petitioners and their orders cannot be construed to be

mechanical. In Mohanbhai (supra) relied on by the petitioner, a

constable was removed from service on account of his absence from

morning parade and the disciplinary proceedings were started against

him after one and a half year of his absence from morning parade. In

those circumstances, it was held that there was delay in initiating the

disciplinary proceedings as no valid reason was given for not taking

disciplinary action immediately after he was found absence in the

morning parade. Apparently the case relied on by the petitioner is

distinguishable. The LTC claim which was filed by the petitioner could

be found to be incorrect only after considerable investigation and after

sending an official to the concerned cities and obtaining a document

from the Railway authorities and thereafter taking approval from the

concerned authorities. It is no more res integra that a decision is only

an authority for what it actually decides. What is of the essence in a

decision is its ratio and not every observation found therein nor what

logically follows from the various observations made in it. The ratio of

any decision must be understood in the background of the facts of that

case. It is well settled that a little difference in facts or additional facts

may make a lot of difference in the precedential value of a decision. In

P.S.Rao v. State, JT 2002 (3) SC 1, the Supreme Court had held as

under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in

setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Ragiq v. State, 1980 SCC (Crl) 946 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

21. In the circumstances on the basis of the ratio of the above

decisions it cannot be said that there is non-compliance of rules of the

respondent and the penalty imposed upon the petitioner is vitiated. In

Ram Chander (supra) the Apex Court had interfered and set aside the

order passed under Rule 22 (2) of the Railways Servants (Discipline and

Appeal) Rules, 1986 which was passed without marshalling the

evidence on record and giving reasons. In contradistinction, in the case

of the petitioner the orders have been passed after considering the

evidence and pleas and contentions of the parties and the orders record

the reasons. Another judgment relied on by the petitioner, M.

Viswanathan (supra) is also distinguishable as in the case relied on by

the petitioner, no disciplinary proceedings were pending. If the

petitioner was not given promotion, he ought to have challenged the

same. On the basis of the said precedent the petitioner is not entitled to

claim that the disciplinary proceedings against him imposing the

penalty of stoppage of one increment and refund of Rs.3,998/- claimed

by him in 1983, is liable to be quashed.

22. Therefore, in the circumstances, there are no grounds to differ

with the findings of the authorities below imposing a penalty of

stoppage of one increment without cumulative effect for misconduct of

the petitioner and directing him for refund of Rs.3, 998/- falsely

claimed by him as LTC expenses in 1983. In the circumstances, the