Tara Chand vs Unknown
2022 Latest Caselaw 5935 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 22nd DAY OF JULY, 2022.




                                                              .

                              BEFORE

         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





            CIVIL WRIT PETITION (ORIGINAL APPLICATION)
            No.3265 of 2020.

         Between:-





         TARA CHAND S/O LATE SH. AMAR NATH,
         R/O VILLAGE AND P.O. KHUDLA, TEHSIL
         BALDWARA, DISTRICT MANDI, H.P.
                                      ......PETITIONER.

         (BY SH. NEEL KAMAL SHARMA, ADVOCATE)

         AND

    1.   DIRECTOR ROAD TRANSPORT CORPORATION


         SHIMLA THROUGH ITS MANAGING DIRECTOR.

    2.   DIVISIONAL MANAGER, HIMACHAL ROAD
         TRANSPORT CORPORATION, HAMIRPUR,




         DISTRICT HAMIRPUR, H.P.

    3.   REGIONAL MANAGER, HRTC, HAMIRPUR,





         DISTRICT HAMIRPUR, H.P.
                                 .......RESPONDENTS.





         (BY SH. RAMAN JAMALTA, ADVOCATE)


               This petition coming on for orders this day, the
    Court passed the following:
                         ORDER

The instant petition has been filed for the grant

of the following substantive reliefs:-

"i. That this Original application may kindly be allowed and the impugned order dated 10.07.2017

.

contained in Annexure A-8 and the impugned office

order dated 20.11.2017 as contained in Annexure A-11 and the enquiry report dated 29.07.2016

contained in Annexure A-4 may very kindly be quashed and set aside.

ii. That the penalty as it has been imposed upon the applicant vide Annexure A-8 which has further

been upheld vide Annexure A-11 may also be quashed and set aside.

ii.A That the impugned office order dated

06-01-2018 as contained in Annexure A-12 vide

which the penalty has been enhanced by the respondent No.2 may kindly be quashed and set aside and respondent No.1 may kindly be directed to

decide the appeal of the Applicant/petitioner dated 19-01-2018 as contained in Annexure A-13.

Further, the respondents may kindly be directed to provide all the financial benefits as well as

promotion to the present Applicant/petitioner w.e.f. 26-08-2015 onwards along with penal interest.

iii. That the respondents may kindly be directed to revoke the suspension of the applicant at the earliest."

2. The petitioner was appointed as conductor with

the respondent-Corporation on regular basis in the year

1984. An incident took place on 25.08.2015 for which the

petitioner was charge-sheeted for alleged involvement in

manhandling Shri Jagar Nath, Regional Manager, on

25.08.2015. A penalty in reduction of pay by one stage for

.

a period of six months was imposed with immediate effect.

However, the Divisional Manager being the reviewing

authority reviewed the case under Rule 29A of CCS(CCA),

Rules 1965 as he was of the view that the penalty was on

the lower side. According to the Divisional Manager, he had

studied the inquiry report and was not in agreement with

the same on the following two grounds:-

"A. The Inquiry Officer has not associated the statements of PW-3, PW-4 while drawing the enquiry report. He has based his findings regarding Charge

No.1 on the statement of PW-1 only.

B. The Charge No.2 has been proved against

said Sh. Tara Chand, Conductor which is serious charge against an employee/official."

3. The petitioner was accordingly served with a

memorandum dated 16.12.2017 to submit his reply as to

why major penalty be not imposed on him. The reasons

for the same as given in the Office Order dated 06.01.2018

(Annexure A-12) are as under:-

"And whereas the undersigned considered his reply and heard him in person on 04.01.2018 and during the personal hearing said Sh. Tara Chand, Conductor

has failed to produce any sufficient evidence in his support. However, the undersigned has found that

.

there is substantial evidence that said Sh. Tara

Chand, Conductor was involved in the incident to materialize their bad designs to assault Sh. Jagar

Nath, Regional Manager, HRTC, Sarkaghat."

4. Thereafter, the Divisional Manager proceeded to

pass the following order:-

"Now therefore, after careful consideration of his reply and allied record as well as enquiry report the

undersigned reviewed the penalty imposed by the

Dy. Divisional Manager, HRTC, Hamirpur under Rule 29-A of the CCS(CC&A) Rules, 1965 and enhance the penalty to the extent of reduction of his pay by two

stages in the time scale of pay with cumulative effect upto 31.05.2018. He will get nothing except subsistence allowance for the period of suspension

i.e. w.e.f. 26.08.2015 to 30.12.2017 and the

suspension period will count for pension and gratuity etc."

5. It would be noticed that the only reason given by

the reviewing authority for reviewing the order and

imposing penalty is that the delinquent-petitioner had

failed to produce any sufficient evidence "in his support".

The reviewing authority has been completely remiss and

has been oblivious to the legal position that the onus of

proof in departmental proceedings to prove the charges

lies on the department.

.

6. Reference in this regard can conveniently be

placed on the judgment of the Hon'ble Supreme Court in

Nirmala J. Jhala vs. State of Gujarat and another

(2013) 4 SCC 301.

    7.         Apart from the above,     the reviewing authority

    has failed to spell out
                   r          that "substantial evidence" which

    could suggest much less prove       that the petitioner was

"involved in the incident to materialize his bad designs to

assault Jagar Nath, Regional Manager."

8. It has to be remembered that disciplinary

proceedings are not a criminal trial. The same are

quasi-judicial and quasi-criminal, where the doctrine of

proof beyond reasonable doubt does not apply, but principle

of preponderance of probabilities would apply. On what

basis, the reviewing authority has come to the conclusion

as quoted above is anybody's guess. The conclusion to be

reached in a departmental proceedings is based on the

test of what a prudent person has done. The Court is not

expected to peep into the mind of the decision-maker and

the same has to be explicit and clearly stated in the order.

9. It has to be clearly borne in mind that during the

course of final inquiry in the departmental proceedings

.

although principle of preponderance of probabilities would

apply, yet the basic rules of pleadings and evidence cannot

be allowed to be circumvented by the inquiry or

Disciplinary Officer during such proceedings. The onus of

proving the charge would invariably be on the department

unless the charge has been in very clear, unequivocal and

unambiguous terms admitted by the delinquent.

10. As observed above, there are virtually no

reasons assigned by the reviewing authority for imposing

penalty. It is more than settled that principles of natural

justice now require to record reasons in support of its

decision; the decision of the authorities should be based on

substantive evidence. The principles of natural justice also

mandate that justice should not only be done, but

manifestly and undoubtedly be seen to be done; nothing is

to be done which creates even a suspicion that there has

been improper interference with the course of justice. It

hardly requires any emphasis that compulsion of disclosure

of reasons guarantees consideration. The condition to give

reasons introduces clarity and excludes or at any rate

minimizes arbitrariness. In short, any administrative

authority exercising quasi-judicial functions must record

.

reasons for its decision.

11. Normally, in such circumstances, the matter

would be required to be sent back to the reviewing

authority. However, taking into consideration the fact that

the petitioner has retired about more than four years back,

no useful purpose would be served in remitting the case

back.

12. In view of the aforesaid discussion and for the

reasons stated above, the instant petition is allowed.

Consequently the impugned Annexures A-4, A-8, A-11 and

A-12 are quashed and set aside. Accordingly, the petitioner

shall be entitled to all consequential benefits including and

not restricted or limited to financial benefits, promotion, if

any, etc. etc.

13. Pending application(s), if any, also stands

disposed of.

(Tarlok Singh Chauhan) Judge 22nd July, 2022.

(krt)