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Anwar Ahmed v. Union Of India & Others - WRIT - A No. 38153 of 2002  RD-AH 9446 (12 May 2006)
Civil Misc.Writ Petition No.38153 of 2002
Union of India and others
Hon.Sanjay Misra, J.
( Delivered by Hon.Sanjay Misra,J.)
The petitioner who was working as Assistant Station Master, Bundki railway station was served with a charge sheet dated 16.2.1999 on two charges regarding interpolating the date in the fitness memo by changing the same and for shortage of Rs.1836/- in the sale of railway tickets during July 1998 and August 1998. By an order dated 2.6.1999 an Inquiry Officer was appointed who found that the charges against the petitioner were established. A notice dated 20.12.1999 was given to the petitioner who replied to the same on 14.3.2000. The disciplinary authority upon considering the same imposed the punishment of removal from service by the order dated 10.4.2000. The appeal of the petitioner was rejected on 30.5.2000. In revision the revisional authority reduced the punishment of removal from service to compulsory retirement. The O.A. No.397 of 2001 (Anwar Ahmad Vs. Union of India and others) was dismissed on 2.5.2002. This writ petition has been filed for quashing of the aforesaid orders.
Counter affidavit and rejoinder affidavit have been exchanged and learned counsel for the parties have been heard.
The first argument raised by the learned counsel for the petitioner is that the petitioner was denied full and proper
opportunity to defend himself during the enquiry. It is contended that one Sri R.K.Sharma, ASM was not examined during the enquiry he being a vital witness to whom leave application and sick fit certificate was handed over. The petitioner has, therefore, been deprived of an opportunity to defend himself. It is also contended that in the normal course shortage of cash in sale of railway tickets occurs and the same is made good by the concerned official. The Enquiry Officer it is contended has not considered these aspects of the matter and, therefore, the enquiry report dated 18.12.1999 is vitiated in the eye of law. It has also been contended that the appellate order and the revisional order are non-speaking orders and therefore, suffer from the vice of non-application of mind and the punishment awarded to the petitioner is disproportionate to the charge found proved against him. Learned counsel for the petitioner has further contended that learned Tribunal has failed to consider this aspect of the matter and as such the impugned orders are liable to be set aside.
Learned counsel appearing on behalf of the respondents has contended that full opportunity was given to the petitioner by the Enquiry Officer. The petitioner never applied for summoning Sri R.K.Sharma, ASM as his defence witness. It has been contended that Sri R.K. Sharma was not included in the list of prosecution witnesses and therefore, it was open for the petitioner to summon him as a defence witness. It is also contended that the disciplinary authority and the appellate authority afforded full opportunity of personal hearing to the petitioner prior to passing of the orders. The revisional authority gave personal hearing to the petitioner and purely on humantarian ground and sympathetic consideration, the punishment of removal from service was reduced to compulsory retirement. It is contended that in so far as charge no.2 is concerned the only defence put up by the petitioner was that shortage of Rs.1836/- in the sale of
railway tickets occurs usually and it is made good by the concerned official. As such he submits that on the evidence led before the Enquiry Officer the charge of shortage is itself proved. However, it is contended that witnesses were examined and documents were considered by the Enquiry Officer while recording his finding that the said charges are established.
Learned counsel for the respondents has placed reliance on a decision of the Hon'ble Supreme Court rendered in the case of Ranjit Thakur Vs. Union of India and others, reported in (1987) 4 Supreme Court Cases 611 and has relied upon paragraphs 25,26 and 27. His contention is that a judicial review of administrative action is not directed against the decision, but is directed against the decision making process. The choice of quantum of punishment is within the jurisdiction of the disciplinary authority. He submits that interference would only be required if the punishment is outrageous and in defiance of logic. Learned counsel for the respondents submit that in the present case the punishment of dismissal awarded to the petitioner cannot be said to be strikingly disproportionate.
In the case of B.C.Chaturvedi Vs. Union of India and others reported in 1996 SCC( L & S) 80 the Hon'ble Supreme Court has held as quoted below:-
" Judicial review is not an appeal from a decision 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 law. When an inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings 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 the 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 reach case.
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 Vs. 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."
In the case of Union of India and another Vs. G.Ganayutham, reported in (1997) 7 Supreme Court Cases 463, it has been held that reasonableness and rationality are grounds for judicial review and the principle of proportionality can be invoked where the court has to find out whether the authority concerned has left out relevant factors or taken into account irrelevant factors.
Learned counsel for the respondents submits that the decision of the disciplinary authority could be one of many choices, which were open before the authority concerned and it was for the said
authority to decide upon the choice and it is not for the court to substitute the view of the authority.
Relying upon a case of Om Kumar Vs. Skipper Construction and another, reported in 2000 Suppl (3) JT SC 93, learned counsel for the respondents has submitted that there is a distinction between the discriminatory administrative action and arbitrary administrative action. Therefore, when the principle of proportionality is to be applied, the courts would be unlikely to interfere unless it shocks the judicial conscience of the court. He has also argued that even in the event that the punishment is found to be disproportionate to the charge proved against the delinquent, the court would be inclined to remit the matter back to the disciplinary authority to consider the quantum of punishment, which was required to be given to such charged employee.
In the case of Regional Manager UPSRTC and another Vs. Holi Lal and another reported in 2003 Volume-3 SCC 605, the Hon'ble Supreme Court has laid down that the test of proportionality is very limited and restricted to exceptional cases. While dealing with a case of misconduct that had caused a loss of Rs.16/- to the State, the Hon'ble Supreme Court held that mere statement that the punishment was disproportionate would not be sufficient. It was held that the disciplinary authority and the appellate authority being the fact finding authorities have exclusive power to consider the evidence and with a view to maintain discipline, it is in their discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. It is only when punishment imposed by such authorities shocks the conscious of the court that it would be appropriate for the court to direct said authorities to consider the penalty imposed or the court itself in exceptional and rare cases impose appropriate punishment with cogent reasons. While deciding the proportionality of punishment factors such as mental set
up, type of duty and similar circumstances have to be taken into consideration.
In view of the settled position in law regarding scope of judicial review under Article 226 of the Constitution of India this court finds that there was no illegality in the decision making process. It was the petitioner who could have summoned his defence witness before the Enquiry Officer. However, inspite of being informed in writing on 2.9.1999 to produce his defence witness the petitioner did not intimate to the Enquiry Officer for summoning his witness. Since Sri R.K.Sharma,ASM was not included in the list of prosecution witnesses and the petitioner did not apply for summoning him as a defence witness, therefore, it cannot be said that the Inquiry Officer has failed to provide full and sufficient opportunity to the petitioner during the enquiry proceeding. The petitioner's contention with respect to not being given full and proper opportunity is confined to his plea about non-examination of Sri R.K.Sharma, ASM. However, in view of aforesaid circumstances, the petitioner is himself to blame for not summoning or producing his defence witness during the enquiry proceeding. It therefore, cannot be held that the principles of natural justice were violated during the enquiry proceedings. Full opportunity was afforded to the petitioner by the Enquiry Officer.
It is also seen that his explanation with respect to second charge was not found satisfactory and in effect it admitted that there was short fall in the sale of railway tickets. In view of the findings recorded by the authorities it appears that they came to the conclusion that the petitioner was not a fit person tobe retained in service inasmuch as the employer has lost confidence on the petitioner.
On the basis of Enquiry Report and the explanation given by the petitioner upon show cause notice the Disciplinary Authority has concurred with the findings of the Enquiry Officer. It is settled law that the concurrence of the Disciplinary Authority with the reasoning and conclusion of the Enquiry Officer means that the Disciplinary Authority has adopted the conclusion and the basis of the conclusion as its own. It is, therefore, not necessary for the Disciplinary Authority to restate the reasoning. It appears that the petitioner has filed the order dated 10.4.2000 imposing the punishment but has not filed the order of the Disciplinary Authority dated 4.4.2000 which was the basis and contained the reasons. Therefore, it can not be held that the Authority had not applied its mind while passing the order of punishment.
The Revisional Authority gave opportunity of personal hearing to the petitioner. It has held that the enquiry was held in a legal manner and that the petitioner had committed acts of misconduct. He had been given punishment even in the past. Consequently the Revisional Authority has formed its opinion that it would not be in public interest to retain the petitioner in service.
No error can be found in the orders of revisional authority where it has taken a humanitarian and sympathetic view by reducing the punishment of removal from service to compulsory retirement.
The Tribunal has considered the case of the petitioner and has held that the petitioner was afforded full opportunity to defend himself. At no stage of the proceedings there has been any violation of the principles of natural justice. From the facts of this case it is found that the impugned orders do not suffer from any error of law. The punishment of dismissal from service has been reduced to compulsory retirement. It therefore can not be said that the punishment is disproportionate to the charges found proved against the petitioner.
For the aforesaid reasons, the writ petition has got no merit and is therefore, dismissed. No order is passed as to costs.
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