Telangana High Court

Mohd. Shareef, vs The Presiding Officer, on 21 October, 2022

Bench: C.V. Bhaskar Reddy

           THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

                    WRIT PETITION No.8347 of 2004
ORDER:

This Writ Petition is filed questioning the award passed by the

Labour Court in I.D No.44 of 2000 dated 09.02.2004 passed by the

Labour Court-II, Hyderabad, 1st respondent herein, confirming the

order of removal passed by the 2nd Respondent in proceedings

No.01/802(5)/96-DM-SRD dated 08.07.1977 is illegal and arbitrary

and to consequently set aside the award by granting the relief of

reinstatement with continuity of service, full back wages and other

reliefs.

2. The petitioner was engaged as a casual cleaner along with

others in the 2nd respondent organisation in the year 1986. When

the petitioner and other co-workers were prevented from

discharging duties without assigning any reasons, they filed Writ

Petition No.862 of 1990 on the file of this Court praying for

regularisation of services and in pursuance of interim direction

granted by this Court, the petitioner was continued in service as

casual cleaner. While so, on the basis of a report submitted by the

security guard to the effect that the petitioner and another were

caught with the stolen articles of 2nd respondent, a criminal case in

Crime No.294 of 1996 under Section 379 of IPC was registered and

a charge sheet was also laid in CC.No.483 of 1996. In addition to

the criminal trial, the 2nd respondent initiated departmental

proceedings for the misconduct alleged against the petitioner. The

petitioner was served with a charge sheet framing the following

charges:-

"Charge No.1: For your failure to go through the security check at 0300 hours on 2-10-1996 after spell of your duty and whisked away in the rain which constitutes misconduct under Regulation 28(Xvii) of APSRTC EMPLOYEES (conduct) Regulations 1963.

Charge No.2: For having stolen away the corporation property i.e. Wiper Machine E1, Head Rest Cover E6 and Iron E1 totally worth of Rs.900/- which were caught by the police Head Constable Sri Md.Hafeez Khan No.316 of Sangareddy Police Station when checked bagat above 0300 hours on 2-10-1996, which Constitutes misconduct under Reg. 28(x) of APSRTC Employees (conduct) Reg.1963."

3. In response thereto, the petitioner submitted a detailed

explanation denying the charges. After elaborately considering the

evidence, the enquiry officer held that the charges levelled against

the petitioner have been proved. Basing on the enquiry report, the

2nd respondent passed orders dated 18.07.1997 terminating the

services of the petitioner. Questioning the said order, the petitioner

filed an appeal on the file of the Deputy Chief Mechanical Engineer

and the same was dismissed against which a review petition has

also been filed and same was dismissed by the Regional Manager.

Thus the order of termination passed against the petitioner became

final.

4. Aggrieved by the order of punishment of removal, the

petitioner invoked the jurisdiction of the Industrial Tribunal.

Meanwhile, the petitioner was acquitted in C.C.No.483 of 1996 for

the offence under section 379 of IPC. The learned Magistrate

acquitted the petitioner on the ground that Mos.1 to 3 which were

said to be stolen property were not ascertained to be the property of

the 2nd respondent and only one panch witness was examined for

seizure of the property and the other witnesses turned hostile.

Since the prosecution failed to adduce the evidence beyond all

reasonable doubt to prove the charges for conviction and in the

departmental proceedings the standard of proof is one of

preponderance of probability and in criminal case the charge has to

be proved by the prosecution beyond reasonable doubt, petitioner

was acquitted from the said charges on the benefit of doubt vide

judgment dated 27.08.1999.

5. After acquittal in the criminal case, the petitioner raised an

Industrial Dispute in I.D No.44 of 2000 before the Industrial

Tribunal-II, Hyderabad, under Section 2-A(2) of the Industrial

Disputes Act of 1997, questioning the validity of termination orders.

The Tribunal, after considering the entire file relating to the

domestic enquiry, including 21 documents, marked as Ex.M-1 and

the judgment of acquittal passed in C.C.No.483 of 1996, confirmed

the order of removal.

6. Aggrieved by the award of the Tribunal, the present writ

petition has been filed mainly on the ground that in the criminal

case and disciplinary proceedings the same evidence was examined

and after thorough examination of evidence, Criminal Court

acquitted the petitioner and in the departmental enquiry relying on

the same evidence has come to different conclusion that the

charges levelled against the petitioner have been proved. It is

further case that the disciplinary authority committed an error in

not accepting similar evidence that was accepted in criminal trial

and there are discrepancies in the evidence of the witness which

make it unreliable, as such the enquiry is vitiated by bias and

violation of principles of natural justice and is liable to be set aside.

7. I have considered the submissions of the learned counsel for

the parties and examined the material filed in support of the writ

petition.

8. The disciplinary authority has taken into consideration the

evidence adduced before the enquiry officer to return a finding that

the charges levelled against the petitioner stand proved. The

punishment imposed in the domestic enquiry has been examined

by the Lower Tribunal and gave a finding that the same does not

suffer from patent error to exercise power of judicial review which

was confined to the decision making process. It is settled law that

the power of judicial review conferred on the Constitutional Court is

not that of appellate power to reappraise the evidence examined in

the domestic enquiry or before the Lower tribunal. Further, as per

the contentions of the prosecution, both the petitioner and another

were found going on cycle on the intervening night dated

02.10.1996 and they were in possession of a bag containing some

material and both of them were detained and secured the articles

namely Wiper Machine, Head Rest Cover and Iron Rod which is the

property of the 2nd respondent and in the investigation it was

disclosed that the recovered articles were theft properties. However,

the learned Magistrate acquitted the petitioner on the ground that

the Mos.1 to 3 which were said to be stolen property were not

ascertained to be property of the 2nd respondent and the said

articles are generally available in the open market, only one panch

witness was examined and another turned hostile.

9. The Lower Tribunal, after evaluating the evidence examined in

the domestic enquiry, held Charge No.1 as perverse. However, so

far as Charge No.2 is concerned, the Lower Tribunal held that there

is a material evidence in the absence of denial of stolen property is

not owned by them nor it was their case that was purchased

property for their personal use in the open market, and justified the

findings recorded by the enquiry officer on Charge No.2 and held

the same was proved and the action of the 2nd respondent in

removing the petitioner from service was upheld. It is settled law

that this Court exercising powers under Article 226 of the

Constitution of India is not an appellate authority. In the domestic

enquiry, complicated principles and procedure laid down in the

Code of Civil Procedure,1908 and the Evidence Act, 1872 do not

apply. The only right of a delinquent employee is that he must be

informed as to what are the charges against him and he must be

given full opportunity to defend himself on the said charges.

10. In State of Andhra Pradesh & Ors. vs. Sree Rama Rao1,

the Supreme Court held that High Court is not a court of appeal

over the decision of the authorities holding a departmental enquiry

against a public servant, which reads as under:-

"7. ...The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a

AIR 1963 SC 1723

petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence..."

11. In State of Bikaner and Jaipur vs. Nemi Chand Nalwaya2

the Supreme Court held that the courts will not act as an appellate

court and reassess the evidence led in the domestic enquiry, nor

interfere on the ground that another view is possible on the

material on record. If the enquiry has been fairly and properly held

and the findings are based on evidence, the question of adequacy of

the evidence or the reliable nature of the evidence will not be

ground for interfering with the findings in departmental enquiries.

Thus the Supreme Court held as under:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala

(2011) 4 SCC 584

fide or based on extraneous considerations. (vide B.C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan -1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana -1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416)."

12. In Union of India Vs. P. Gunasekaran3 the Supreme Court, while dealing with the case of reappreciating evidence held that the High Court cannot act as an appellate authority in the disciplinary proceedings and laid down the parameters as to when the High Court shall not interfere in the disciplinary proceedings:

"13. Under Article 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 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."





    (2015) 2 SCC 610

13. In NEKRTC v. H. Amaresh4 the Supreme Court held that the

punishment should always be proportionate to the gravity of the

misconduct held as follows:

"18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs.360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgements held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikantti5 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum."

14. In the present case the except stating that there are

discrepancies in the evidence examined in both the proceedings no

(2006) 6 SCC 187 :2006 SCC (L&S) 1290 : AIR 2006 SC 2730

(2001) 2 SCC 574 : 2001 SCC (L&S) 469

substantial grounds have been raised, calling interference of this

court under the Article, 226 of Constitution of India. Further, the

disciplinary authority agreed with the evidence of the enquiry officer

and passed an order of punishment and appeal filed against said

order was also dismissed and the Lower Tribunal exhaustively

consider the evidence relied upon by the parties before the domestic

enquiry and before the tribunal. After assessing the evidence both

the authorities have came to conclusion that there is no violation of

principles of natural justice and adequate opportunity has been

given to the petitioner to disapprove the said charges.