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DHIRENDRA KUMAR UPADHYAYA versus UNION OF INDIA AND OTHERS.

High Court of Judicature at Allahabad

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Dhirendra Kumar Upadhyaya v. Union Of India And Others. - WRIT - A No. 26848 of 2004 [2006] RD-AH 2235 (30 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 34

Civil Misc. Writ Petition No. 26848 of 2004

Dhirendra Kumar Upadhyaya,  

Vs.

Union of India & Ors.,

*********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 3rd February, 2004 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 464 of 2002 filed by the claimant/petitioner.

The Original Application had been filed against the order dated 1st March, 2001 passed by the Disciplinary Authority by which the claimant was removed from service and the order dated 19th March, 2001 by which the appeal filed by the claimant against the aforesaid order was rejected.

The claimant/petitioner was appointed in Group-D category and posted under DSTE/MW/MGS Eastern Railway on the basis of the alleged order dated 25th January, 1999 purported to have been issued by the Assistant Personnel Officer (E) of the Eastern Railways. Subsequently it came to the notice of the superior officers that he had secured his employment on the basis of forged and fake letter issued by CPO Office at Calcutta. A charge-sheet was issued to the claimant that he had produced fake and false appointment order for initial appointment in the Railways and had acted in a manner unbecoming of a Railways servant. An inquiry was conducted and the Enquiry Officer submitted a detailed report holding that the purported office order of appointment was fake. A show cause notice was then issued to the claimant enclosing a copy of the enquiry report and after considering the reply, the Disciplinary Authority passed the order of removal of service on 1st March, 2001. The Tribunal has recorded a categorical finding that it was proved that the applicant had got the appointment on the basis of the forged office order.

We have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents and have perused the materials available on record.

The contention of the learned counsel for the petitioner is that the principles of natural justice had been violated while conducting the enquiry inasmuch as certain documents like the application forms, copy of the medical memo and copy of the medical fitness certificate were not supplied to the petitioner. He, therefore, contended that the entire disciplinary proceedings stood vitiated and the order imposing the punishment should be set aside.

The Supreme Court in State Bank of Patiala & Ors. Vs. S.K. Sharma JT 1996 (3) SC 722 examined the principles of natural justice in the context of disciplinary proceedings and held as follows:-

"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and others of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ''no notice', ''no opportunity' and ''no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory character,  the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or the Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice-or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/ "no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query.(It is made clear that this principle (No. 5) does not apply in the case of rule against bias,  the test in which behalf are laid down elsewhere.)

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

In High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors, JT 1997 (5) SC 298 the Supreme Court held that disciplinary proceedings are not a criminal trial and, therefore, the scope of enquiry is entirely different from that of a criminal trial in which the charge is required to be proved beyond doubt. In the case of disciplinary enquiry, the technical rules of evidence have no application and preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. The same view was reiterated by the Supreme Court in the case of Depot Manager, A.P. State Road Transhport Corporation and Mohd. Yousuf Miya, 1997 (77) F.L.R. and in Lalit Popli Vs. Canera Bank & Ors, (2003) 3 SCC 583.  It was held that strict standard of proof or applicability of the Evidence Act stands excluded and the standard of proof in the departmental proceedings is not the same as of the criminal trial. In the disciplinary proceedings the principal question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him.

In Cholan Roadways Ltd. Vs. G. Thirugnanasambandam 2005 AIR SCW 84 the Supreme held that it is a well-settled principle that the principles of Evidence Act have no application in a domestic enquiry.

It is in the light of the aforesaid observations that we have to examine whether non-supply of the documents vitiated the enquiry proceedings.

In respect of supply of documents, the Supreme Court in State of U.P. Vs. Ramesh Chandra Mangalik 2002 Lab. I.C. 978 laid down the following principles:-

"11. Learned counsel for the appellant has further submitted that particular documents copies of which are said to have not been supplied are not indicated by the respondent much less in the order of the High Court nor their relevance has been pointed out. The submission is that the delinquent will also have to show as to in what manner any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non-furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in 1987 (Supp) SCC 518 Chandrama Tewari v. Union of India. It has been observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent.  The inquiry would not be vitiated in such circumstances. In State of Tamil Nadu v. Thiru K.V. Perumal and others (1996) 5 SCC 474 relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned counsel for the appellant reported in (2001) 6 SCC 392 State of U.P. v. Harendra Arora and another, it has been held that a delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground.

12. Learned counsel for the appellant submitted that no material or document has been relied upon by the Inquiry Officer, copy of which or inspection thereof may not have been allowed to the respondent. No material has been obtained after the date of hearing nor any such material has been made use of by the Inquiry Officer. It is further submitted that in the judgment of the High Court it has nowhere been indicated that any material or document, copy of which has not been supplied to the respondent, was used much less any prejudice, if caused to the respondent. Learned counsel for the respondent could not pinpoint any particular document which may have been made use of by the Inquiry Officer for establishing the charges leveled against the respondent, copies of which or inspection thereof may not have been allowed to the delinquent by the Department. No submission has been advanced on behalf of the respondent on the point of prejudice which may have been caused to the respondent by non-supply of document, if any. The High Court has also not gone into the question of the relevance of the documents copies of which are said to have not been supplied to the respondent and consequent prejudice, if caused. We therefore find that the finding of the High Court that principles of natural justice have been violated for non-supply of documents to the respondent is not sustainable. The cross-examination of a witness which was sought for, had unfortunately died which fact was also brought to the notice of the respondent."  

In the present case, learned counsel for the petitioner has not been able to explain as to how these documents were relevant or what prejudice has been caused by non-supply of the documents. A bare perusal of the charge-sheet indicates that the relevant documents were supplied to the petitioner. In such circumstances we are not inclined to accept the contention of the learned counsel for the petitioner that principles of natural justice had been violated as certain documents had not been supplied to the petitioner.

We must also not forget that the present case is a case where the petitioner has claimed appointment on the basis of a forged and fictitious order. The Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors,. JT 1993 (6) SC 331, in identical circumstances, refused to interfere on the ground of breach of principles of natural justice before passing orders and the relevant portion of the judgment is quoted below:-

"The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."      

Learned counsel for the petitioner than contended that the findings recorded by the Enquiry Officer were vitiated. In effect he wanted us to re-appraise the evidence. Regarding re-appreciation of evidence by the High Court, the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar (supra) clearly held as follows:-

"..... In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749, State of Tamil Nadu vs. T.V. Venugopalan JT 1994 (5) SC 337=(1994) 6 SCC 302 (SCC para 7), Union of India vs. Upendra Singh JT 1994 (1) SC 658 = (1994) 3 SCC 357 (SCC para 6), Government of Tamil Nadu vs. A. Rajapandian JT 1994 (7) SC 492 = (1995) 1 SCC 216 (SCC para 4) and B.C. Chaturvedi vs. Union of India (at pp. 759-60)"

The Supreme Court in Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Ors, (1997) 3 SCC 657 held as follows:-

"6. Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained."

In R.S. Saini Vs. State of Punjab (1999) 8 SCC 90, the Supreme Court observed as follows:-

"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

In the case of Lalit Popli (supra) the Supreme Court observed as follows:-

"17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority."

Learned counsel for the petitioner could not point out any finding recorded by the enquiry officer which could be termed as perverse and nor could he point out any error of law leading to manifest injustice. In such circumstances, we reject this contention also of the petitioner.

This apart, it has been repeatedly held that an order will not be quashed merely on the ground that principles of natural justice had been violated if the result of the quashing of the order would be to revive of an illegal order. In this connection reference may be made to the decision of the Supreme Court in the case of M.C. Mehta Vs. Union of India & Ors,. 1999 (6) SCC 237. In the present case if the order of the disciplinary authority is set aside, it would result in restoration of the fake and fictitious order of appointment. Thus also, the order impugned does not deserve to be set aside.

In any view of the matter, inasmuch as the petitioner is claiming relief on the basis of a forged appointment order, in our opinion, it is not a fit case for interference under Article 226 of the Constitution of India.

The writ petition is, accordingly, dismissed.    

Date: 30.1.2006

NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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