Mohinder Singh vs Lt. Governor & Anr.
2009 Latest Caselaw 4132 Del

              HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 5649/1999

              Judgment reserved on: 14th September, 2009
%             Judgment delivered on: 13th October, 2009

MOHINDER SINGH                              ..... Petitioner
                        Through: Mr. P.P. Khurana, Sr. Adv.
                                 with Ms. Tamali Wad, Mr.
                                 Birender Singh and Ms.
                                 Seema Pandey, Advs.
                        Versus

LT. GOVERNOR & ANR.                 ..... Respondents
                Through: Ms. Sujata Kashyap, and
                         Mr. Anil Sharma, Advs.


                             WITH


Writ Petition (Civil) No. 6216/1999

GOVT. OF NCT OF DELHI THROUGH
LT. GOVERNOR                             ......Petitioners
                 Through: Ms. Sujata Kashyap, and
                          Mr. Anil Sharma, Advs.
                 Versus
MOHINDER SINGH                         ......Respondent
                 Through: Mr. P.P. Khurana, Sr. Adv.
                          with Ms. Tamali Wad, Mr.
                          Birender Singh and Ms.
                          Seema Pandey, Advs.

Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?                 Yes


W.P. (C) No.5649/1999                                 Page 1 of 22
W.P. (C) No.6216/1999
        2. To be referred to Reporter or not?              Yes

       3. Whether the judgment should be reported
          in the Digest?                                   Yes


A.K. PATHAK, J.

1. Petitioner was working as a Motor Licensing Officer

with the State Transport Authority (STC) during the year

1996. A departmental proceeding for major penalty was

initiated against him on the allegations that while working

as Assistant Secretary, he changed the route of bus no. DL-

1P-8001 (previously bus no. DBP-2465) by unathorisedly

issuing a new route permit being no. 039832 dated 24th

December, 1992 with the validity period from 24 th

December, 1992 to 23rd February, 1993, for the route

Shalimar Bagh to Shahdara, in spite of the fact that the

permit holder was already holding a subsisting permit

bearing no. 088821 dated 14 th October, 1992 with the

validity up to 23rd February, 1993 for the route Bara Tuti to

Sahahdara. He committed this act clandestinely by using

Mr. Ravi Dutt Sharma, LDC working in the STC. On the

basis of this permit bus continued to be plied on the

W.P. (C) No.6216/1999 changed route till the Enforcement staff intercepted the

same in the year 1991 on the basis of a complaint.

2. Article of charge served on the Petitioner reads as

under :-

That the said Shri Mohinder Singh, M.L.O. while functioning as Assistant Secretary (STA) during the year 1992 committed gross misconduct in as much as he changed the route of Bus No. DL- 1P-8001 from Bara Tuti - Shahadra to Shalimar Bagh - Regal without the approval of the competent Authority with malafide intention.

Shri Mohinder Singh, M.L.O. (under suspension) has, thus, by his above act failed to maintain absolute integrity and acted in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3 of the CCS (conduct) Rules, 1964.

3. Enquiry Officer conducted the proceedings wherein

Petitioner participated. Enquiry Officer submitted his report

before the Disciplinary Authority after conducting the

enquiry. As per the Enquiry Officer charge against the

Petitioner was duly proved. Disciplinary Authority issued a

show cause notice to the Petitioner enclosing therewith

enquiry report. Petitioner made a written representation

before the Disciplinary Authority on 17th February, 1997.

W.P. (C) No.6216/1999 Vide order dated 13th March, 1997 Disciplinary Authority

imposed penalty of reduction of post of the Petitioner from

Motor Licensing Officer to Motor Vehicle Inspector for a

period of eight years with a further stipulation that pay of

the Petitioner as Motor Vehicle Inspector will be fixed at the

minimum of the scale.

4. Petitioner preferred an appeal before the Appellate

Authority on 23rd April, 1997 which was dismissed vide

order dated 28th August, 1997.

5. Dissatisfied by the orders of the Disciplinary Authority

and Appellate Authority, Petitioner preferred an original

application being O.A. No. 233/1998 before the Central

Administrative Tribunal, Principal Bench, New Delhi

(hereinafter referred to as Tribunal). It was contended by

the Petitioner before the Tribunal that he was denied a fair

hearing as certain documents asked by him and even

allowed by the Enquiry Officer were not supplied to him;

conclusions of the Enquiry Officer were based on

conjectures and surmises and the findings were based on

no evidence. Disciplinary Authority had imposed three

W.P. (C) No.6216/1999 different penalties contrary to the provisions of CCS (CCA)

Rules, 1965.

6. Vide order dated 29th April, 1999, Tribunal disposed of

the O.A. It was upheld that Petitioner was guilty of

misconduct. However, penalty imposed upon the Petitioner

was modified only to the extent that reduction in a lower

grade only; in other words his pay in the lower grade will be

fixed on the assumption as if he had not been promoted as

Motor Licensing Officer at all.

7. Dissatisfied by the outcome of the O.A., Petitioner has

filed this writ petition under Article 226 of the Constitution

praying therein that the order dated 29th April, 1999 passed

by the Tribunal be set aside and the orders of Disciplinary

Authority as well as Appellate Authority be quashed.

Petitioner be granted all consequential benefits in the facts

and circumstances of the case.

8. Arguments heard.

9. Learned senior counsel for the Petitioner has

contended that the findings of Enquiry Officer as well as the

order of Disciplinary Authority is based on "no evidence"

W.P. (C) No.6216/1999 and is amenable to judicial review. He has placed reliance

on Kuldeep Singh vs. Commissioner of Police & Ors.

reported in (1999) 2 SCC 10 and Union of India vs. H.C.

Goel reported in AIR 1964 SC 364. As per the learned

senior counsel, case of the department was that a raid was

conducted by Enforcement Section on 24th January, 1995

and amongst this the bus No. DL IP 8001 (earlier No. 2465)

was intercepted after which its permit was seized. In the

vigilance enquiry it was revealed that the original route of

bus in question was from Bara Tuti to Shahdara with the

validity period from 24th October, 1992 to 23rd February,

1993. However, subsequently Petitioner changed this route

Shalimar Bagh to Regal without prior approval of the

competent authority. Petitioner, who was working as

Assistant Secretary, during the year 1992 was not having

any authority to change the route of the bus. By doing so

he had facilitated the plying of bus on the changed route

unauthorisedly till the bus was intercepted by the

Enforcement Section. The permit with the changed route

was issued by the Petitioner under his signatures. As per

W.P. (C) No.6216/1999 the learned senior counsel no evidence was led by the

department to prove the above facts.

10. Learned counsel has further contended that the

Petitioner had denied his signatures on the permit. Inspite

of this department did not take any step to prove the

signatures of the Petitioner on the permit. Not only this,

report of S.I. Ramesh Chand of the Enforcement Section

was also not produced. S.I. Ramesh Chand was not

produced before the Enquiry Officer despite several

opportunities being granted to the department during the

enquiry, merely this report had remained unproved.

According to learned senior counsel, in absence of this

report, there was no material evidence available before the

Enquiry Officer/Disciplinary Authority to conclude that the

bus was plied on the changed route on the basis of alleged

permit, till it was finally intercepted by the Enforcement

Section. Learned counsel has contended that the Enquiry

Officer had himself observed that the signatures of the

Petitioner appearing on the permit were at variance with his

usual signatures. In view of this, it was all the more

necessary for the department to have procured the

W.P. (C) No.6216/1999 handwriting expert's opinion to prove the signatures of the

Petitioner. No noting was there in the office file regarding

the change of route bearing signatures of the Petitioner.

Even Mr. Ravi Dutt Sharma, star witness of the department,

had not made any categorical statement that the Petitioner

had appended his signatures on the permit in his presence.

Even the original permit was not produced. In a nutshell he

has contended that there was no evidence available on

record to hold that it was the Petitioner, who had changed

the bus route. Learned senior counsel has further

contended that the original permit, though was available

with the department, was not produced, therefore, an

adverse inference against the Respondents had to be drawn.

Non-production of the permit during enquiry as also non-

production of the material witnesses to prove the

Enforcement Section report is gross procedural irregularity

and is sufficient to quash the impugned orders.

11. Learned counsel has further contended that the needle

of suspicion rests on Mr. Ravi Dutt Sharma for having

committed forgery and in all probability the permit had been

issued by him and/or in the alternative, at the most, it can

W.P. (C) No.6216/1999 be said that he was an accomplice along with the Petitioner

and in such an eventuality his evidence was of weak nature

and required corroboration. Solely on the statement of Mr.

Ravi Dutt Sharma, neither the Enquiry Officer nor the

Disciplinary Authority could have concluded that the permit

with changed route was issued by the Petitioner. Reliance

has been placed on Rampal Pithwa Rahidas vs. State of

Maharashtra reported in 1994 Supp (2) SCC 73.

12. As against this, learned counsel for the Respondents

has contended that power of judicial review of

Court/Tribunal is very limited. Court/Tribunal has only to

see, as to whether the enquiry was conducted fairly and the

principles of natural justice were followed inasmuch as due

opportunity was given to the delinquent to defend his case.

Adequacy or reliability of evidence cannot be looked into by

the Court/Tribunal while exercising its power of judicial

review. Disciplinary Authority is the sole judge of facts.

Remedy of appeal is also provided against the order of the

Disciplinary Authority and it is within the domain of

Appellate Authority to reappreciate the evidence or nature of

punishment. The Court/Tribunal in its power of judicial

W.P. (C) No.6216/1999 review does not act as Appellate Authority. The

Court/Tribunal can interfere only if the enquiry is

conducted in violation of statutory rules prescribed

regarding the mode of enquiry or the conclusions or findings

reached by the Disciplinary Authority are based on no

evidence. If the findings reached by the Disciplinary

Authority are based on some evidence, the Court has no

power to interfere with such findings and the subsequent

penalty order. Reliance has been placed on B.C.

Chaturvedi vs. Union of India reported in (1995) 6 SCC

749.

13. As per the learned counsel for the Respondents the

whole issue involved was, as to whether the Petitioner had

changed the route of the bus by issuing a new permit

during the subsistence of the earlier permit in spite of the

fact that he was not having any such authority. In view of

this, non-production of S.I. Ramesh Chand was immaterial.

Even otherwise, the report of the Enforcement Section could

have been read against the Petitioner in the departmental

enquiry as no rules of evidence are applicable and it was not

required to be proved by producing the maker thereof. She

W.P. (C) No.6216/1999 has contended that Mr. Ravi Dutt Sharma was working as

Lower Division Clerk under the Petitioner. He had

categorically deposed during the enquiry that the noting on

the file was made by him on the directions of the Petitioner.

He had also prepared the permit with changed route and

placed it before the Petitioner. Mr. Ravi Dutt Sharma has

also categorically stated that the signatures on the permit

were of the Petitioner. It was contended that this shows,

that there was adequate evidence available before the

Enquiry Officer to establish charge against the Petitioner.

On the basis of this evidence the Disciplinary Authority also

arrived at the same conclusion. According to her, this is not

a case of "no evidence".

14. We have considered the rival contentions of both the

sides in the light of material available on record. However,

we are not convinced with the arguments of learned counsel

for the Respondents. In our opinion, this case is based on

no evidence, inasmuch as, procedural irregularities have

been committed during the enquiry proceedings. We are of

the view that as case is based on "no evidence" this Court

W.P. (C) No.6216/1999 can interfere with the order passed by the Disciplinary

Authority and all subsequent orders arising therefrom.

15. In B.C. Chaturvedi's case (supra) Supreme Court has

held as under:-

"The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreicate 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."

(emphasis supplied)

16. In Kuldeep Singh's case (supra) Supreme Court has

held as under :-

"The findings recorded in a domestic enquiry can be characterised 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

W.P. (C) No.6216/1999 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 decisions 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 no-application of mind and stands vitiated."

17. In H.C. Goel's case (supra) Supreme Court has held as

under:-

"That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that

W.P. (C) No.6216/1999 decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondent's case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him. In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent. This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence illegally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well founded, because in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence."

18. In view of backdrop of above legal position, it is clear

that power of judicial review of the Court/Tribunal is

W.P. (C) No.6216/1999 limited. The Court has not to go into the merits of the case

in detail. It has not to sift and weigh the evidence adduced

before the Enquiry Officer meticulously in such a manner as

if hearing an appeal against the said order. Adequacy or

reliability of evidence also cannot be gone into by the

Court/Tribunal. The Court/Tribunal cannot arrive at its

own conclusion on the basis of the evidence available before

the Disciplinary Authority. If the finding of the Disciplinary

Authority is based on some evidence that would be

sufficient. The Court/Tribunal has only to see whether the

principles of natural justice were applied inasmuch as the

enquiry was held, as per the rules. However, in case it is

found that conclusion reached by the Disciplinary Authority

is based on no evidence the Court/Tribunal would be

justified in interfering with the order of the Disciplinary

Authority in exercise of its power of judicial review.

19. In view of the above settled legal position, now it has to

be seen, as to whether findings of the Enquiry Officer and

the order passed by the Disciplinary Authority was based on

no evidence or there existed some evidence indicating the

guilt of the Petitioner. The whole action was started on the

W.P. (C) No.6216/1999 basis of report of S.I. Ramesh Chand of the Enforcement

Section. As per this report, in a surprise check based on a

complaint it was found that the bus in question, was plying

on the route of Shalimar Bagh to Regal. Though its original

permit was for the route Bara Tuti to Shahdara. Permit was

seized and the matter was probed wherein it was revealed

that the Petitioner had issued this permit with changed

route unauthorisedly. This permit was issued by the

Petitioner without seeking approval of the competent

authority. Disciplinary action was initiated against the

Petitioner on the basis of report of Enforcement Section and

vigilance probe. We find that S.I. Ramesh Chand was not

produced to prove his report. Since this witness did not step

in the witness box despite opportunity granted by the

department Enquiry Officer dispensed with his evidence vide

order dated 19th December, 1996. In absence of statement

of S.I. Ramesh Chand this complaint/report regarding

interception of the bus and seizure of the permit had

remained unproved. We are of the view that merely because

this report was filed by the Presenting Officer, would not

mean that it required no proof during the enquiry and can

W.P. (C) No.6216/1999 be read. This document was required to be proved by calling

the maker of the documents in the witness box or through

some other witness who was conversant with the

handwriting and signatures of the maker of this document.

Since this document had remained unproved, the same

cannot be read against the Petitioner. In absence of the

above said document, it remained unproved that the bus

was intercepted by the members of the Enforcement team or

that original permit was seized. There was no evidence

before the Enquiry Officer to suggest that bus was being

plied on the route from Shalimar Bagh to Regal on the basis

of the alleged permit. Not only this, even the original permit

seized by the enforcement team was not produced during

the enquiry and only photocopy thereof was placed on

record. Be that as it may, we are of the view that there was

no evidence before the Disciplinary Authority to conclude

that bus was placed on the route Shalimar Bagh to Regal on

the basis of the alleged permit.

20. As mentioned earlier that Petitioner had categorically

denied the signatures appearing on the permit were his. He

even produced a report of the handwriting expert to this

W.P. (C) No.6216/1999 effect. In view of this, it was necessary for the department to

prove that the signatures on the permit were in fact of the

Petitioner, by leading some cogent and reliable evidence to

this effect. Such evidence is totally missing in this case. No

handwriting expert's report was produced by the department

during the enquiry. Enquiry Officer himself had written to

Deputy Director, Vigilance, on 2nd December, 1996 that the

verification of certain document from handwriting expert

was necessary in view of the denial of Petitioner regarding

his signatures on the material documents attributed against

him. As per the Enquiry Officer, three months time was

required for this purpose. Surprisingly, no steps were taken

by the department to obtain opinion of the handwriting

expert regarding the signatures of the Petitioner on the

alleged photocopy of the permit. Even Enquiry Officer, for

the reasons best known to him, dispensed with this

requirement and gave a report on 19 th December, 1996, i.e.

only after seventeen days of his writing a letter to Deputy

Director regarding necessity of the opinion of handwriting

expert, before giving his findings. This also shows that the

Enquiry Officer himself was not sure whether the signatures

W.P. (C) No.6216/1999 on the questioned permit were that of the Petitioner or not.

Even Mr. Ravi Dutt Sharma, the star witness of the

prosecution has not categorically deposed that the

Petitioner had appended his signatures on the permit in his

presence. He had simply deposed that on the directions of

the Petitioner, he had prepared a noting along with the

permit with changed route. He has not deposed that permit

was signed in his presence after he had placed the file before

the Petitioner. So far as the office noting is concerned,

there is no mention therein about the change of route of the

bus. Office noting signed by the Petitioner talks about the

fact only that the permit issued earlier was valid upto 23 rd

February, 1993. Since there is no mention in the noting

signed by the Petitioner regarding change of route, it cannot

be said that it was the Petitioner who had ordered for the

change of route. So far as signatures of Petitioner on the

permit are concerned, same had remained unproved. No

evidence was available before the Enquiry Officer to hold

that the signatures on the permit were of the Petitioner. On

the contrary, Enquiry Officer has himself returned a finding

that the signatures appearing on the permit were different

W.P. (C) No.6216/1999 than the usual signatures of the Petitioner. However,

Enquiry Officer took a view that a forger would append his

signatures on a forged document at variance with his usual

signatures. In our view, this finding of Enquiry Officer is

based on no material and is merely a hypothetical

proposition floated by the Enquiry Officer and the same

could not meet the test of acceptable evidence. Finding in

this regard is imaginary and without any basis.

21. Since the Enforcement report as well as the signatures

on the permit remained unproved, we are of the view that no

evidence was available before the Enquiry

Officer/Disciplinary Authority to conclude that it is the

Petitioner who had changed the route and had issued a new

permit with changed route i.e. from Shalimar Bagh to Regal.

In our view, the findings returned by the Disciplinary

Authority are based on no evidence and are liable to be set

aside.

22. In the light of the above discussion, we are of the

considered view that the Tribunal had taken erroneous view

in upholding the finding of the Enquiry Officer/Disciplinary

Authority and the Appellate Authority.

W.P. (C) No.6216/1999

23. Since we have already arrived at a finding that the

order passed by the Disciplinary Authority is based on no

evidence, we need not delve upon the other arguments

raised by the learned counsel for the Petitioner.

24. In view of the above discussion we allow this writ

petition and set aside the order passed by the Disciplinary

Authority dated 19th December, 1996 and all the orders

arising therefrom. Petitioner would be entitled to all

consequential benefits.

25. Vide the impugned order dated 29th April, 1999

Tribunal modified the penalty imposed upon the Petitioner

to the extent of reduction in a lower grade only. In other

words, Petitioner's pay in the lower grade was fixed on the

assumption as if he had not been promoted as M.L.O. at all.

Respondent has challenged this order of the Tribunal by

filing C.W.P. No. 6216/1999 on the ground that the Tribunal

cannot substitute its own penalty in place of penalty

awarded by the Disciplinary Authority in exercise of its

power of judicial review. As we have set aside the order of

the Disciplinary Authority and the subsequent orders arising

W.P. (C) No.6216/1999 therefrom, the W.P.(C) No. 6216/1999 has become

infructuous and is dismissed accordingly.

A.K. PATHAK, J

MADAN B. LOKUR, J

OCTOBER 13, 2009 ga

W.P. (C) No.6216/1999