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2005 DIGILAW 87 (HP)

H. R. T. C. v. PYARE LAL

2005-04-07

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT Lokeshwar Singh Panta, J.—Himachal Road Transport Corporation (for short H.R.T.C.) and its Managing Director have filed this petition under Articles 226/227 of the Constitution of India against the order dated 6.11.1998 of the State Administrative Tribunal by which O.A. No. 2322/95 filed by respondent No. l-Pyare Lai was allowed and the order of his removal from service was quashed and set aside with further direction to re-instate respondent No. l with full back wages and other consequential benefits. 2. Pyare Lal-respondent No. 1 was employed as daily wage Conductor on September 1, 1981 by the H.R.T.C. He was regularized on June 1, 1982. On 4.2.1986 respondent No. 1 was the Conductor on duty with Bus No. HPA-830 on the Majholi-Solan route. The said bus was going from Jubbar to Solan. In all 48 passengers were travelling in the bus out of whom 41 passengers were travelling without tickets and seven passengers were the pass holders. The bus was checked by Flying Squad consisting of Shri Chaman Lai Inspector and Shri Hari Singh Inspector. On checking, the Flying Squad detected that respondent No. 1 had not issued tickets to 41 passengers nor collected the bus fare from them thereby defrauded the petitioner-Corporation of its legitimate revenue. 3. The petitioner-Corporation started departmental proceedings against respondent No. 1. Manager (Inquiry), H.R.T.C., Shimla Division was appointed as Inquiry Officer. The Inquiry Officer charge sheeted respondent No. 1 under Rule 14 of CCS (CCA) Rules, 1965 on the following two charges: CHARGE NO. I Alleged attempt to defraud the Corporation of its legitimate revenue by way of carrying passengers without tickets in H.R.T.C. Bus No. HPS 830 dated 4.2.1986. CHARGE NO. II 4. Alleged sheer negligence in the performance of assigned duty. 5. During the inquiry, the petitioner-Corporation examined Shri Chaman Lai, Inspector who was heading the Flying Squad in support of the charges whereas the delinquent official examined one Krishan Kumar in his defence. The Inquiry Officer on consideration of the material on record and the statements of the witnesses has held that there were only seven passengers (pass holders) whereas respondent No. 1 did not issue tickets to other 41 passengers. When the bus was checked by the Flying Squad at about 3 Kms. The Inquiry Officer on consideration of the material on record and the statements of the witnesses has held that there were only seven passengers (pass holders) whereas respondent No. 1 did not issue tickets to other 41 passengers. When the bus was checked by the Flying Squad at about 3 Kms. from Jubbar and within this distance, respondent No. 1 could at least issue tickets to some of the passengers especially those who were to get down from the bus at Garkhal. Both the charges were accordingly proved against respondent No. 1. 6. The Divisional Manager, H.R.T.C, Shimla issued show cause notice to respondent No. 1 to submit his reply against the report of the Inquiry Officer. The Disciplinary Authority on careful consideration of the reply and other relevant record accepted the report of the Inquiry Officer and imposed the penalty of removal of respondent No. 1 from service vide order dated 10.11.1988 mark Annexure P-2. 7. Being aggrieved against the order of the Disciplinary Authority, respondent No. 1 preferred Original Application No. 444/88 before the State Administrative Tribunal without exhausting the remedy of the appeal before the Managing Director of the Corporation. The learned Tribunal vide order dated 21.5.1991 mark Annexure P-3 directed the Managing Director-petitioner No. 2 herein to treat the Original Application No.444188 as an appeal and decide the same after affording an opportunity to the parties within a period of six weeks from the date of the order. Further, it has been observed in the order that in case the decision of the Managing Director was adverse to respondent No. 1, the same shall be supported by reasons and the respondent No. 1 was given liberty to approach the Tribunal again on the same cause of action. 8. Petitioner No, 2-Managing Director of the Corporation rejected the appeal of respondent No. 1 by office order dated 24.8.1991 mark Annexure: P-4. The operative part of the order of the Appellate Authority reads as under: "Now, therefore, after considering the Enquiry Report, the record of the case and what was submitted by him during the course of personal hearing, I have come to the conclusion that the charges stand proved and he has therefore been rightly punished. The operative part of the order of the Appellate Authority reads as under: "Now, therefore, after considering the Enquiry Report, the record of the case and what was submitted by him during the course of personal hearing, I have come to the conclusion that the charges stand proved and he has therefore been rightly punished. I have also gone through his service record and found that the applicant has been punished earlier also on more than a dozen occasions for similar charges and as such does not deserve any sympathy. Hence the appeal is rejected. Sd/- S.C. Malik, IPS. Managing Director, Himachal Road Transport Corporation, Shimla-171003." 9. Against the order of the Appellate Authority, respondent No. 1 filed second Original Application No. 1303/91 before the State Administrative Tribunal. The learned Tribunal vide order dated August 16,1995 mark Annexure P-6 again remanded the application to the Managing Director of the Corporation to re-consider the case of respondent No. 1 on merit in accordance with law and decide the same after considering the points raised by him in the appeal within period of two months. The appeal of respondent No. 1 came to be considered by the Managing Director of the Corporation once again. The Managing Director of the Corporation (Appellate Authority) vide order dated 30th October, 1995 mark Annexure P-7 rejected the appeal on the following grounds: "1. That it was enjoined upon the delinquent Conductor to issue tickets to all the passengers who had boarding the bus from Jubbar itself in accordance with the provisions of Motor Vehicle Act and other instructions issued in this behalf from time to time from the station the passengers had boarding the bus. 2. That out of 48 passengers, 41 passengers were without tickets and remaining were pass holders. Thus, delinquent Conductor failed to issue even a single ticket from Jubbar which proves the mala fide intention of the delinquent without any iota of doubt. 3. The bus was checked at 3 Kms. from the boarding point and not one Km. as claimed by the delinquent official. Even otherwise Conductor was required to issue tickets at Jubbar itself and therefore the question of distance is irrelevant. 4. The plea of the delinquent Conductor that he was engaged in altercation with some students is also not supported by any independent evidence and therefore cannot be relied upon. 5. as claimed by the delinquent official. Even otherwise Conductor was required to issue tickets at Jubbar itself and therefore the question of distance is irrelevant. 4. The plea of the delinquent Conductor that he was engaged in altercation with some students is also not supported by any independent evidence and therefore cannot be relied upon. 5. There was no point in levying any penalty on passengers as the passengers were not at fault but the conductor had failed to issue tickets to them. 6. The mala fide of the then Divisional Manager in arbitrarily transferring the appellant Conductor to Rampur is also not proved on record as it has been the policy of the respondent Corporation to transfer delinquent Conductor on re-instatement to other Unit to break the nexus i.e. purely on administrative grounds. 7. The delinquent appellant Conductor has failed to prove on record that he was innocent and also the circumstances which led to non issue of even single ticket. Thus, the article of charges framed against Sh. Pyre Lai, Conductor vide charge sheet No. 2206 dated 16.6.86 in respect of the above case is fully established." 10. The order of the Appellate Authority was conveyed to respondent No. 1 by Divisional Manager (P&A) of the Corporation. 11. It was for the third time that respondent No. 1 again filed Original Application No. 2322/95 in State Administrative Tribunal challenging the order of his removal from service. The learned Tribunal has quashed both the orders of the disciplinary authority as also the Appellate Authority and directed the petitioners to re-instate respondent No.l with full back wages and other consequential benefits. Hence, the petitioner-Corporation and its Managing Director have preferred this writ petition questioning the correctness and validity of the order of the Tribunal. 12. Respondent No. 1 has filed reply to the writ petition in which he has supported the order of the learned Tribunal. His defence is that the Inquiry Officer has ignored the statement of the independent witness Krishan Kumar and based his report only on conjecture and surmises without recording reasons. Further, he submitted that the Inquiry Officer as also Disciplinary and Appellate Authorities have not considered his defence that the bus was checked by the Flying Squad when it had hardly travelled the distance of 1 Km. Further, he submitted that the Inquiry Officer as also Disciplinary and Appellate Authorities have not considered his defence that the bus was checked by the Flying Squad when it had hardly travelled the distance of 1 Km. from Jubbar and at that time he was engaged in altercation with the students who boarded the bus without tickets. According to respondent No. 1, the allegation of the petitioner that the bus was checked at by the Flying Squad at a distance of about 3 Kms. from Jubbar was factually incorrect and in support of his defence that the bus was checked at a distance of 1 Km. he has placed on record a copy of the certificate issued by the Assistant Engineer, H.P.P.W.D., Kasauli mark Annexure P-4/T with this writ petition where under it is reported that the distance between Chhabraldhar to bus stop Jubbar is 1 Km. and 125 Mts. 13. We have heard learned Counsel for the parties and perused the material on record. Mr. Ashok Sharma, learned Counsel for the petitioners contended that the learned Tribunal has exceeded its jurisdiction beyond its domain and decided the Original Application of respondent No. 1 as if it was exercising the jurisdiction of a appellate Court. The learned Tribunal has no power and jurisdiction to re-appreciate the evidence produced by the parties before the Inquiry Officer. The Disciplinary Authority as also the Appellate Authority both have considered the entire relevant record including the service record of respondent No. 1 which was full of blots as he was penalized earlier on twelve occasions but he did not mend himself. In exercise of the jurisdiction of judicial review against the orders of the authorities in departmental proceedings, the learned Tribunal has exceeded its jurisdiction in ordering the reinstatement of respondent No. 1 in service with full back wages without considering the fact that the services of respondent No. 1 were terminated in the year 1986 and there was no material on record to show that respondent No. 1 was not gainfully employed anywhere during long period of twelve years when the impugned order was passed by learned Tribunal. He next contended that if the impugned order of learned Tribunal is upheld, the public money involving about Rs. He next contended that if the impugned order of learned Tribunal is upheld, the public money involving about Rs. 5,00,000/ - approximately has to be paid to respondent No. 1 without discharging any duty who has been found guilty of misconduct and defrauding the public Corporation. 14. Per contra, Pt. Om Parkash, learned Counsel for respondent No. 1 has sought to support the order of learned Tribunal to contend that the inquiry report of the Inquiry Officer against respondent No. 1 is based upon no evidence and as such there was no question of re-appreciation of the evidence by the learned Tribunal as the Inquiry Officer and the Disciplinary Authority as also Appellate Authority have not properly appreciated the evidence of the defence witness of the delinquent. In support of his submission, reliance is placed in the case of Anil Kumar v. Presiding Officer and others, (1995) 3 Supreme Court Cases 378. In that case, their Lordships have found that the Inquiry Officer merely recorded his ipse dixit that the charges were proved against the delinquent without assigning any reason why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. Therefore, there was no inquiry in that case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable. Further, it was observed that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no co-relation is established between the two showing application of mind, it is not an enquiry report at all. 15. On consideration of the impugned order in the present case, we find that the learned Tribunal has re-appreciated the evidence of the defence witness Krishan Kumar produced by respondent No. 1 before the Inquiry Officer. It was observed in the impugned order that no penalty was levied by the Flying Squad on passengers who were traveling without ticket. 15. On consideration of the impugned order in the present case, we find that the learned Tribunal has re-appreciated the evidence of the defence witness Krishan Kumar produced by respondent No. 1 before the Inquiry Officer. It was observed in the impugned order that no penalty was levied by the Flying Squad on passengers who were traveling without ticket. This part of the observation of the learned Tribunal was not the subject matter of the departmental inquiry being held against respondent No. 1. The Inquiry Officer has considered the evidence of the witnesses produced by the parties and found that when 48 passengers boarded the bus at Jubbar, out of whom seven passengers were pass-holders, not a single ticket was issued by respondent No. 2 to any of the 41 passengers when the bus was checked by the Flying Squad at a distance of about 3 Kms. from Jubbar. The bus started from its destination of Jubbar enroute to Majholi-Solan. The Inquiry Officer has held that respondent No. 1 could at least issue tickets to some passengers in between the distance covered by the bus from Jubbar to a place where it was checked by the Flying Squad and more especially to those passengers who were to get down from the bus at Garkhal. Whether the bus was checked at the distance of 1 K.M. or 3 Kms. by the Flying Squad is a question of fact which has been considered by the Inquiry Officer in his inquiry report and it was not within the jurisdiction of the learned Tribunal to have gone into the appreciation of evidence led by the parties before the Inquiry Officer. The Inquiry Officer has passed a reasoned order on appreciation and consideration of the evidence on record led by the parties and other material holding that both the charges framed against respondent No. 1 stood fully established. The Disciplinary Authority on consideration of the written statement of respondent No. 1 to the show cause notice and relevant material accepted the inquiry report and imposed the penalty of removal of respondent No. 1 from service. On remand by the State Administrative Tribunal, the Managing Director of the Corporation recorded a reasoned order after hearing respondent No. 1 upholding the order of the Disciplinary Authority. On remand by the State Administrative Tribunal, the Managing Director of the Corporation recorded a reasoned order after hearing respondent No. 1 upholding the order of the Disciplinary Authority. In his office order dated 24.8.1991 (Annexure P-4), the Managing Director had also perused the service record of respondent No. 1 and found that he had been punished earlier also on more than a dozen occasions for similar charges. A copy of history sheet of respondent No. 1 w.e.f. 29.3.1982 to 4.2.1986 is placed on record as Annexure P-5 of this petition to show that on earlier twelve occasions, minor penalties for almost similar charges v/ere imposed upon respondent No. 1, but still he has not tried to improve his conduct. The Managing Director of the Corporation considered the appeal of respondent No. 1 on remand from the State Administrative Tribunal and rejected the same vide order dated 30th October, 1995 copy mark Annexure P-7 in giving the above extracted seven reasons. The impugned order of the learned Tribunal shows that it has decided the Original Application of respondent No. 1 as if it was exercising the jurisdiction of appellate Tribunal over the orders of the Disciplinary Authority as also the Appellate Authority in departmental proceedings. It is by now well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no material for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man. We are unable to accept the contention of the learned Counsel for respondent No. 1 that the findings of the Inquiry Officer cannot be held to be findings based on no evidence. The ratio of the judgment of the Honble apex Court in Anil Kumar v. Presiding Officer and others (supra) is of no avail and assistance to respondent No. 1 in the peculiar facts and circumstances of the instant case. In Sub-Divisional Officer, Konch v. Maharaj Singh, (2003) 9 Supreme Court Cases 191, their Lordships while considering the jurisdiction of the High Court under Article 226 of the Constitution held as under: (See Page : 192 Para-5) "Para-5. In view of the submissions made at the Bar, we have scrutinized the impugned order of the High Court. In Sub-Divisional Officer, Konch v. Maharaj Singh, (2003) 9 Supreme Court Cases 191, their Lordships while considering the jurisdiction of the High Court under Article 226 of the Constitution held as under: (See Page : 192 Para-5) "Para-5. In view of the submissions made at the Bar, we have scrutinized the impugned order of the High Court. A bare perusal of the same makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has re-appreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction under Article 226 in interfering with the findings arrived at by the enquiring authority by re-appreciation of the evidence adduced before the said enquiring authority." 16. Again in Lalit Popli v. Canara Bank and others, (2003) 3 Supreme Court Cases 583, the Supreme Court reiterated that 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. The learned Tribunal has not considered the above said settled law in its order while deciding the Original Application of respondent No. 1. 17. In the instant case, the jurisdiction of the learned Tribunal under Section 14 of the Administrative Tribunals Act, 1985 is not an appellate one. The learned Tribunal has re-appreciated the entire evidence adduced in disciplinary proceedings and the well reasoned orders of the Disciplinary Authority as well as the Appellate Authority were not given due consideration. 17. In the instant case, the jurisdiction of the learned Tribunal under Section 14 of the Administrative Tribunals Act, 1985 is not an appellate one. The learned Tribunal has re-appreciated the entire evidence adduced in disciplinary proceedings and the well reasoned orders of the Disciplinary Authority as well as the Appellate Authority were not given due consideration. In the aforesaid premises, we have no hesitation to come to the conclusion that the learned Tribunal has exceeded its jurisdiction under Section 14 of the Act in interfering with the findings of fact arrived at by the Inquiry authority by re-appreciating the evidence adduced before it. The learned Tribunal in its order has failed to consider the above extracted detailed reasons recorded by the Appellate Authority in the order dated 30th October, 1995 (Annexure P-7) upholding the order of the Disciplinary Authority based upon well reasoned inquiry report submitted by the Inquiry Officer. Thus, the impugned order of the learned Tribunal cannot be sustained. No other point was urged by the learned Counsel for the parties. 18. For the above said reasons, we therefore, quash and set aside the impugned order dated 6.11.1998 of the State Administrative Tribunal passed in O.A. No. 2322/95. The writ petition is accordingly allowed. The parties, however, are left to bear their own costs. Stay order, if any, shall stand vacated. Writ petition allowed.