Madras High Court
S.P.Balasubramanian vs The Managing Director on 4 January, 2021
W.P.(MD)No.2232 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.01.2021
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.2232 of 2010
S.P.Balasubramanian : Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Forest Plantation Corporation Limited,
Tiruchirapalli-620 101.
2.The Regional Manager,
Tamil Nadu Forest Plantation Corporation Limited,
Pudukottai. : Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India
seeking a Writ of Certiorarified Mandamus, to call for the records relating to
the orders in (1) Pro.No.848/2009/Pa.2, dated 07.12.2009 of the first
respondent and (2) Pro.No.6873/2007/Pa., dated 28.11.2008 of the second
respondent and quash the same and issue consequential directions to the
respondents to reinstate the petitioner in service with consequential service
and monetary benefits.
For Petitioner :Mr.C.Deepak, for Mr.M.Ravi
For Respondents :Mr.SC.Krena Ranjitham
1/19
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W.P.(MD)No.2232 of 2010
ORDER
The case of the petitioner is that he joined the service of the
respondent/Tamil Nadu Forest Plantation Corporation Limited, as Jeep
Driver on 16.04.2007, on compassionate ground. Whileso, a charge memo,
dated 29.08.2008, was issued to the petitioner under Rule 56(b) of the Tamil
Nadu Forest Plantation Corporation Service Regulations, on the ground that
the petitioner has drove the official vehicle rashly and negligently and
caused two accidents on 08.06.2007 and 17.08.2008 and, thereby, caused
huge loss to the tune of Rs.1,46,073/- to the respondent Corporation,
towards repair charges. Enquiry was initiated in which the petitioner also
participated and after conclusion of enquiry, report was filed by the enquiry
officer holding the petitioner guilty of the charges alleged and after
obtaining further explanation from the petitioner, the second respondent has
passed the impugned order, dated 28.11.2008, dismissing the petitioner from
service. Challenging the order of dismissal, dated 28.11.2008, passed by the
second respondent, the petitioner preferred an appeal before the appellate
authority/first respondent.
2. Pending the appeal before the first respondent, the petitioner filed
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Writ Petition in W.P.(MD)No.11107 of 2009 for early disposal of the appeal
filed by him and this Court, by order, dated 03.11.2009, directed the first
respondent to dispose of the appeal on merits and in accordance with law
within a period of four weeks. Thereafter, the first respondent passed an
order dismissing the appeal filed by the petitioner, vide order dated
07.12.2009. Challenging the same, the present Writ Petition is filed.
3.Heard Mr.C.Deepak, learned counsel for the petitioner and
Mr.SC.Krena Ranjitham, learned Counsel for the respondents.
4.The learned Counsel for the petitioner submits that the accidents,
which were the reason for dismissal of the petitioner, were not on account of
the negligence of the petitioner but was on account of the rash driving of the
opposite vehicle. Further, the petitioner has been dismissed from service
even during the probation period. It is the further submission of the learned
counsel for the petitioner that no witnesses to speak about the accident and
the culpability of the petitioner were examined during the enquiry and the
respondents simply fixed the responsibility on the petitioner as the person,
who drove the vehicle in a rash and negligent manner and dismissed the
petitioner from service, which is wholly unsustainable. The conduct of the
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proceedings of enquiry is in violation of principles of natural justice as no
witnesses were examined and, therefore, the impugned order suffers the vice
of arbitrariness and is unsustainable and unreasonable.
5.Per contra, the learned Counsel for the respondents submits that
admittedly the accidents had happened due to the rash and negligent driving
by the petitioner and to controvert the said stand, the petitioner has not
examined any witness during the enquiry to rebut the charges framed
against him. The petitioner cannot, merely come before this Court and
claim that he had not caused the accident and shift the burden on the
shoulders of the respondents. The evidence that is required in a disciplinary
proceedings is not akin to evidence required in a criminal case and the
disciplinary authority, on the touchstone of preponderance of probabilities,
has held that the petitioner is guilty as held by the enquiry officer and
imposed the punishment and this Court, sitting under Article 226 shall not
interfere with the same in exercise of judicial review.
6.It is the further submission of the learned Counsel for the
respondents that the respondents have no power to summon witnesses, who
are not subordinates to them and not working under their control, especially,
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W.P.(MD)No.2232 of 2010
in matters involved in disciplinary proceedings. He would also submit that
if the petitioner was very much interested in those witnesses, it is for the
petitioner to bring those witnesses to substantiate his case during the
enquiry proceedings. Further, he would submit that at the time of
dismissing the petitioner from service, the petitioner was undergoing
probation period and that even enquiry is not necessary to dismiss the
petitioner, however, in adherence to the principles of natural justice, enquiry
was conducted which has culminated in the dismissal of the petitioner and,
therefore, no interference is warranted with the order impugned herein.
7.The Hon'ble Supreme Court, in B.C. Chaturvedi v. Union of India,
(1995 (6) SCC 749), while dealing with issue relating to the power of the
Court relating to judicial review of the order passed in disciplinary
proceedings, held as under :
“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
rules of natural justice are complied with. Whether the findings
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W.P.(MD)No.2232 of 2010
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 therefrom,
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
reappreciate 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 reappreciate 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
[(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this
Court held at p. 728 that if the conclusion, upon consideration of
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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)
8.The above view has been reiterated by the Hon'ble Supreme Court
in Principal Secy. Govt. of A.P. v. M. Adinarayana, (2004 (12) SCC 579),
wherein, it has been held as under :-
“23. We have read this charge in the light of allegations in
support thereof. In the instant case, it is not disputed that the
respondent has neither supplied any prior information on the
Government nor did he send any prior intimation to the
Government. By not doing this, he has contravened the
provisions of Rule 9. The Tribunal has also categorically held
that the respondent has not applied for prior information before
he purchased the items from the competent authority nor he
intimated to the competent authority forthwith soon after the
purchase of the several items. Therefore, in our view, the charged
officer has violated Rule 9 of the Conduct Rules and thus is guilty
of misconduct within Rule 2-H (sic) of the Andhra Pradesh
Disciplinary Amendment Act, 1993. In view of the abovesaid
finding we hold that respondent is guilty of both the charges
framed against him within Rule 2 (b) of the Conduct Rules of
1961 framed under the Amendment Act, 1993.
* * * * * * * *
26. In our opinion, judicial review cannot extend to the
examination of the correctness of the charges as it is not an
appeal but only a review of the manner in which the decision was
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made. We have, therefore, no hesitation in setting aside the order
of the Andhra Pradesh Administrative Tribunal and the judgment
of the Division Bench of the High Court for reasons stated
(supra). The order passed by the Government removing the
respondent from service is in order and, therefore, the appeal
filed by the appellant State stands allowed. Further, there will be
no order as to costs.”
9.In a recent decision in Director General of Police, RPF & Ors. -
Vs – Rajendra Kumar Dubey (C.A. No.3820/2020 dated 25.11.20), the
Hon'ble Supreme Court, adverting to the various decisions of the Apex
Court relating to the interference by the High Court in exercise of its writ
jurisdiction with respect to disciplinary proceedings, including the decision
in Chaturvedi's case (supra), held as under :-
“12.1 ...... It is well settled that the High Court must not act as
an appellate authority, and re-appreciate the evidence led before
the enquiry officer.
We will advert to some of the decisions of this Court with
respect to interference by the High Courts with findings in a
departmental enquiry against a public servant.
In State of Andhra Pradesh v S.Sree Rama Rao, a three judge
bench of this Court held that the High Court under Article 226 of
the Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is not the function of the High Court under its writ
jurisdiction to review the evidence, and arrive at an independent
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finding on the evidence. The High Court may, however interfere
where the departmental authority which has held the proceedings
against the delinquent officer are inconsistent with the principles
of natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the statutory
rules prescribing the mode of enquiry, or the authorities were
actuated by some extraneous considerations and failed to reach a
fair decision, or allowed themselves to be influenced by
irrelevant considerations, or where the conclusion on the very
face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion. If
however the enquiry is properly held, the departmental authority
is the sole judge of 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 permitted to be
canvassed before the High Court in a writ petition.
These principles were further reiterated in the State of Andhra
Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ
of certiorari under Article 226 is a supervisory jurisdiction. The
court exercises the power not as an appellate court. The findings
of fact reached by an inferior court or tribunal on the
appreciation of evidence, are not re-opened or questioned in writ
proceedings. An error of law which is apparent on the face of the
record can be corrected by a writ court, but not an error of fact,
however grave it may be. A writ can be issued if it is shown that
in recording the finding of fact, the tribunal has erroneously
refused to admit admissible and material evidence, or had
erroneously admitted inadmissible evidence. A finding of fact
recorded by the tribunal cannot be challenged on the ground that
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the material evidence adduced before the tribunal is insufficient
or inadequate to sustain a finding. The adequacy or sufficiency
of evidence led on a point, and the inference of fact to be drawn
from the said finding are within the exclusive jurisdiction of the
tribunal.
In subsequent decisions of this Court, including Union of
India v. G. Ganayutham, Director General RPF v. Ch. Sai
Babu, Chennai Metropolitan Water Supply and Sewerage
Board v T.T. Murali, Union of India v. Manab Kumar Guha,
these principles have been consistently followed.
In a recent judgment delivered by this Court in the State of
Rajasthan & Ors. v. Heem Singh this Court has summed up the
law in following words :
“33. In exercising judicial review in disciplinary matters,
there are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This
is for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The judge does not assume the mantle of
the disciplinary authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who
is responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of natural
justice. But they are not governed by strict rules of evidence
which apply to judicial proceedings. The standard of proof is
hence not the strict standard which governs a criminal trial, of
proof beyond reasonable doubt, but a civil standard governed by
a preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on context
and subject. The first end of the spectrum is founded on
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deference and autonomy – deference to the position of the
disciplinary authority as a fact finding authority and autonomy
of the employer in maintaining discipline and efficiency of the
service. At the other end of the spectrum is the principle that the
court has the jurisdiction to interfere when the findings in the
enquiry are based on no evidence or when they suffer from
perversity. A failure to consider vital evidence is an incident of
what the law regards as a perverse determination of fact.
Proportionality is an entrenched feature of our jurisprudence.
Service jurisprudence has recognized it for long years in
allowing for the authority of the court to interfere when the
finding or the penalty are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they
exercise judicial review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an initial or
threshold level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support
the charge of misconduct and to guard against perversity. But
this does not allow the court to re-appreciate evidentiary
findings in a disciplinary enquiry or to substitute a view which
appears to the judge to be more appropriate. To do so would
offend the first principle which has been outlined above. The
ultimate guide is the exercise of robust common sense without
which the judges’ craft is in vain.”
In Union of India v. P. Gunasekaran, this Court held that the
High Court in exercise of its power under Articles 226 and 227 of
the Constitution of India shall not venture into re-appreciation of
the evidence. The High Court would determine whether : (a) the
enquiry is held by the competent authority; (b) the enquiry is held
according to the procedure prescribed in that behalf; (c) there is
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violation of the principles of natural justice in conducting the
proceedings; (d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations which are
extraneous to the evidence and merits of the case; (e) the
authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations; (f) the conclusion, on
the very face of it, is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence; (h) the disciplinary authority
had erroneously admitted inadmissible evidence which
influenced the finding; (i) the finding of fact is based on no
evidence.
In paragraph 13 of the judgment, the Court held that :
“13.Under Articles 226 / 227 of the Constitution of India, the
High Court shall not :
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in the case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
(Emphasis
Supplied)
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10.From the ratio laid down above, it is implicitly clear that the
Courts, in exercise of its power of judicial review, cannot extend the
examination to the correctness of the act of the disciplinary authority, but
only limit itself to the manner in which the decision has been arrived at by
the authorities and whether the same is in accordance with law. This Court
is to test only the correctness of the decision arrived at by the authorities on
the basis of the evidence before it and not proceed with the case as if it is an
appeal against the impugned order.
11.The facts in the present case are not in dispute. Two accidents
have taken place when the petitioner was performing his duties as the driver
of the vehicle and an amount in excess of Rupees One Lakh had been
incurred towards repairs of the vehicle. The above amount has been shelled
out by the respondent Corporation, which is an unnecessary expenditure and
a loss in the books of accounts of the Corporation.
12.The petitioner is under probation and his service has not yet been
regularised on the date of inflictment of punishment. It is also well settled
that during probationary period, there is no necessity for the employer to
initiate any enquiry, but the serivces of the employee can be terminated at
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W.P.(MD)No.2232 of 2010
any time. However, as a matter of precaution and without violating the
principles of natural justice, the respondents have gone ahead with the
enquiry and after finding the petitioner guilty in the enquiry, the 2nd
respondent has imposed the punishment of dismissal from service.
13.Though it is the contention of the petitioner that no witnesses have
been examined to substantiate that it was the petitioner who was
instrumental in causing the accident due to his rash and negligent driving,
however, it is a matter of record that one Kulanthaisamy, who was the
complainant, was examined and the said witness has also been cross
examined by the petitioner. Based on the evidence of Kulanthaisamy, the
respondents have arrived at the conclusion that the petitioner has been
instrumental in causing the accident, which has caused loss to the
respondent Corporation to the tune of more than Rupees One Lakh. It is
also evident from the evidence of the witness that the accident had
happened due to the rash and negligent driving of the vehicle by the
petitioner.
14.Once a finding is rendered by the enquiry officer, which has been
accepted by the disciplinary and appellate authority, as stated above, this
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Court, sitting under Article 226 of the Constitution cannot reappreciate the
evidence in toto, as if it is sitting in appeal. Once this Court finds that the
procedure has been followed in the conduct of the disciplinary proceedings,
unless it is shown that a fair conclusion is not reached or that the evidence
has not been admitted or inadmissible evidence has been admitted which
prevailed upon the disciplinary authority to come to the erroneous
conclusion, this Court would not be justified in interfering with the decision
arrived at by the disciplinary authority. Further, the petitioner having
participated in the enquiry proceeding, but having not placed any evidence
to disprove the case of the Management and substantiate his case, it is not
open for the petitioner to contend that either the enquiry has not been
conducted in a proper manner or that the enquiry officer has not appreciated
the materials in proper perspective while rendering his finding. Further, it is
also evident that no extraneous considerations have influenced either the
enquiry officer or the disciplinary authority. Such being the case, there
being no lacunae or discrepancy, as pointed out by the Hon'ble Supreme
Court, in the conduct of the departmental proceedings, this Court, in
exercise of its powers under Article 226 is not inclined to reappreciate the
evidence as if sitting in appeal over the appellate decision. In the above
backdrop of the ratio laid down by the Hon'ble Apex Court and in view of
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the findings recorded above, this Court has no hesitation to hold that
decision of the disciplinary authority to punish petitioner on the basis of the
finding rendered by the enquiry officer does not require any interference.
15.Insofar as the punishment awarded to the petitioner is concerned
for the delinquency, it has been the consistent view of the Courts that, it is
always within the domain of the Appointing Authority to decide on the
punishment to be imposed on the delinquent, which should be proportionate
to the act of the delinquent. Only when the punishment is disproportionate
and shocking the conscience, the Courts interfere with the same, in exercise
of powers under Article 226 of the Constitution of India. In Prem Nath
Bali – Vs - High Court of Delhi reported in (2015 (16) SCC 415), the
Hon'ble Supreme Court has held as under :
“20. It is a settled principle of law that once the
charges levelled against the delinquent employee are proved
then it is for the appointing authority to decide as to what
punishment should be imposed on the delinquent employee as
per the Rules. The appointing authority, keeping in view the
nature and gravity of the charges, findings of the inquiry
officer, entire service record of the delinquent employee and
all relevant factors relating to the delinquent, exercised its
discretion and then imposed the punishment as provided in
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the Rules.
21. Once such discretion is exercised by the
appointing authority in inflicting the punishment (whether
minor or major) then the courts are slow to interfere in the
quantum of punishment and only in rare and appropriate case
substitutes the punishment. Such power is exercised when the
court finds that the delinquent employee is able to prove that
the punishment inflicted on him is wholly unreasonable,
arbitrary and disproportionate to the gravity of the proved
charges thereby shocking the conscience of the court or when
it is found to be in contravention of the Rules. The Court may,
in such cases, remit the case to the appointing authority for
imposing any other punishment as against what was
originally awarded to the delinquent employee by the
appointing authority as per the Rules or may substitute the
punishment by itself instead of remitting to the appointing
authority.”
(Emphasis Supplied)
16.In the case on hand, a careful perusal of the entire records relating
to the enquiry as also the order passed by the disciplinary authority, as
confirmed by the appellate authority, it clearly transpires that the
disciplinary authority has applied his mind to the enquiry report and all the
other materials while imposing the punishment of dismissal from service
and on appeal, the appellate authority has appreciated the materials
independently and concurred with the view of the disciplinary authority. On
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an overall consideration of the materials, this Court is in consensus with the
order passed by the disciplinary authority as confirmed by the appellate
authority that the punishment imposed on the petitioner is just and
reasonable considering the nature of delinquency and no sympathy can flow
from this Court for such an act. Therefore, the punishment imposed on the
petitioner is in no way shocking the conscience of this Court or
disproportionate to the delinquency and, therefore, this Court is not inclined
to interfere with the same.
17.For the reasons aforesaid, this Court is not inclined to interfere
with the order impugned herein and, accordingly, the writ petition fails and
the same is dismissed. However, there shall be no order as to costs.
04.01.2021
Index : Yes / No
Internet : Yes / No
cmr
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W.P.(MD)No.2232 of 2010
M.DHANDAPANI, J.
cmr
Order made in
W.P.(MD)No.2232 of 2010
04.01.2021
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