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2008 DIGILAW 71 (HP)

Brij Lal v. H. R. T. C.

2008-03-12

DEEPAK GUPTA, RAJIV SHARMA

body2008
JUDGMENT (Rajiv Sharma, J.) - By way of this common judgment CWPs No. 705 of 2001 and 598 of 2002 are disposed of together since common questions of law and facts are involved in these petitions. 2.The brief facts necessary for the adjudication of this petition are that the petitioner in CWP No. 598 of 2002 was appointed as driver on regular basis in the Himachal Pradesh Transport Corporation on 12.4.1985. He was charge-sheeted and departmental inquiry was initiated against him under Rule C.C.S. (CC&A) Rules, 1965. The Articles of charges “Annexure P-1” dated 17.11.1994 reads thus :- “Statement of articles of charges framed against Shri Brij Lal, Driver, Himachal Road Transport Corporation, Rohru. Article-1 That the said Shri Brij Lal, while on the rolls of HRTC, Rohru and working in the capacity of Driver is alleged to have consumed liquor on 11.10.1994 while on duty and was arrested by the Police at Sawra while catering Rohru-Jhagtan service, resulting another bus had to be deputed to cater the above service thereby caused unnecessary loss to the Corporation. Sd/- Head of Office, HRTC, Rohru. Statement of imputation of misconduct or misbehaviour in support of the article of charges framed against Shri Brij Lal, Driver, HRTC, Rohru. Article-1That the said Shri Brij Lal, while on the rolls of HRTC, Rohru and working in the capacity of driver was deputed to cater Rohru-Jhagtan service on 11.10.1994 with bus No. HP-10-317 but the said Shri Brij Lal, driver stranded the above passengers service at Swara without any legal defect and consumed liquor while on duty due to which he was arrested by the Police at Swara and vehicle alongwith passengers remained stranded to Swara upon which another bus No. HP-10-328 had to be deployed to cater the above service which caused unnecessary loss to the Corporation. It was the primary duty of the said Shri Brij Lal, driver not to consume the liquor while on duty and drive the vehicle upto its destination so that the loss caused would have been avoided but he failed to do so. Hence charge-I against him. Sd/- Head of Office, HRTC, Rohru. 3.The petitioner accepted the charges levelled against him on 8.4.1997. The Divisional Manager issued a memorandum dated 5.8.1997 to the petitioner to make a representation against the proposed penalty of dismissal. He submitted detailed reply to the show cause notice on 3.9.1997. Hence charge-I against him. Sd/- Head of Office, HRTC, Rohru. 3.The petitioner accepted the charges levelled against him on 8.4.1997. The Divisional Manager issued a memorandum dated 5.8.1997 to the petitioner to make a representation against the proposed penalty of dismissal. He submitted detailed reply to the show cause notice on 3.9.1997. The disciplinary authority vide an office order dated 1.7.1998 removed the petitioner from service. He preferred an original application before the learned H.P. Administrative Tribunal O.A. No. (M) 13 of 1999. The original application was decided by the learned Tribunal on 5.1.2001. The Tribunal came to the conclusion that the imposition of punishment of removal from service was disproportionate to the misconduct more particularly in view of the confession made by him. Consequently, the Tribunal quashed annexure-P/6 dated 1.7.1998. 4.Against the order dated 5.1.2001 passed by the learned H.P. Administrative Tribunal in O.A. No. (M) No. 13 of 1999 the HRTC has filed the civil writ petition bearing No. CWP 705/01 and the petitioner has filed CWP No. 598 of 2002. In CWP No. 705 of 2001 the petitioner had primarily contended that the order passed by the Tribunal dated 5.1.2001 is not sustainable in the eyes of the law. Mr. Ashok Sharma also contended that the Tribunal had come to wrong conclusion that the penalty of removal imposed upon the petitioner was disproportionate. The principal submission of the petitioner in CWP No. 598 of 2002 is that the petitioner should have been granted all the consequential benefits after the order dated 1.7.1998 was quashed and set aside by the Tribunal. It is in this background that we have to decide the writ petitions bearing CWPs No. 705 of 2001 and 598 of 2002. 5.It is evident from the pleadings of the parties that the foundation for initiating the disciplinary proceedings against the petitioner was Articles of charges drawn on 17.11.1994 as reproduced supra. 6.The main charge against the petitioner as per Article of charges was that he had consumed liquor on duty due to which he was arrested and passengers were stranded on 11.10.1994 while he was deputed to drive bus No. HP-10-317. The petitioner accepted the charges levelled against him on 8.4.1997. the memorandum was issued calling upon him to make a representation against the proposed penalty of dismissal by the Divisional Manager of the Corporation on 5.8.1997. He made a representation on 3.9.1997. The petitioner accepted the charges levelled against him on 8.4.1997. the memorandum was issued calling upon him to make a representation against the proposed penalty of dismissal by the Divisional Manager of the Corporation on 5.8.1997. He made a representation on 3.9.1997. The disciplinary authority on the basis of statement made by the petitioner imposed the penalty of removal of the petitioner from the service. Petitioner had assailed this order dated 1.7.1998 before the Tribunal. The Tribunal has also referred while taking a lenient view to the confessional statement made by the petitioner on the basis of letter dated 8.4.1997 addressed to the Inquiry officer. 7.When we were going through the pleadings of the parties during the course of hearing we came across another statement “Article of Charges” framed against the petitioner on 20.1.1998. It appears that the impression had been given by the petitioner to the Tribunal as if he was removed from service on the basis of willful absence w.e.f. 21.12.1997 onwards on the basis of article of charges dated 20.1.1998. The petitioner had not filed before the learned H.P. Administrative Tribunal the copy of Article of charge dated 17.11.1994 whereby a serious charge was levelled against him. The petitioner has been removed on the basis of the charge sheet dated 17.11.1994. He was removed from service after hearing him. 8.The Tribunal had in fact quashed letter dated 1.7.1998 which was annexed as Annexure A-6 before the Tribunal in O.A. No. (M) 13 of 1999. The exercised has been under taken by the Court to go through the pleadings minutely to see whether the petitioner had brought true facts before the Tribunal in O.A. No. (M) 13 of 1999 or not. We are of the firm opinion that the petitioner has not brought true facts before the Tribunal in his original application by not placing on record the copy of the charge sheeted dated 17.11.1994. The petitioner ought to have placed complete set of documents before the learned Tribunal for adjudication of the original application. In fact the petitioner had also not placed the copy of this charge sheet dated 17.11.1994 in the writ petition bearing No. CWP 598/2002 and it is only the HRTC who has placed the charge sheet dated 17.11.1984 on ward (Annexure P-1). In fact the petitioner had also not placed the copy of this charge sheet dated 17.11.1994 in the writ petition bearing No. CWP 598/2002 and it is only the HRTC who has placed the charge sheet dated 17.11.1984 on ward (Annexure P-1). 9.Now, we have to consider whether the order passed by the Tribunal on the basis of the facts as projected here-in-above is legal or not. The petitioner was charge-sheeted with a serious allegation of consuming liquor while on duty on 11.10.1994 and his subsequent arrest by the police. He has confessed his guilt before the inquiry Officer. The disciplinary authority on the basis of the confession made by the petitioner provisionally came to the conclusion that penalty of dismissal should be imposed upon the petitioner. However, on the basis of the representation made by he petitioner against the proposed penalty, the penalty of removal was imposed upon the petitioner. The Tribunal has not assigned any reasons while coming to the conclusion that the penalty of removal inflicted upon the petitioner was disproportionate to the alleged misconduct. 10.Their Lordships in Director General, RPF and others v. Ch. Sai Babu, 2003(4) Supreme Court Cases 331, have held as under :- “As is evident from the order of the learned Single Judge there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is riot that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely saying that it is shockingly disproportionate. It is riot that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely saying that it is shockingly disproportionate. Normally, the punishment imposed by disciplinary authority should not be disturbed by High Court or Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including nature of charges proves against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.” 11.Their Lordships of the Supreme Court in Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar, 2003(4) Supreme Court Cases 364, have held as under :- “The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was a defiance of logic or moral standards. In view of what has been stated in the Wednesbury’s case the Court would not go into the correctness of the choice made by the Administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision. To put it differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even thereof discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani’s case. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even thereof discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani’s case. As was observed by this court in Balbir Chand v. Food Corporation of India Ltd. and others, 1997(3) SCC 371, even if a co-delinquent is given lessor punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different.” 12.We are not impressed with the submissions made by Mr. Neel Kamal Sood that the Tribunal should have granted consequential benefits after quashing annexure P-6 dated 1.7.1998. Since, we have allowed CWP No. 705 of 2001 by quashing impugned order dated 5.1.2001 the relief sought for by the petitioner in CWP No. 598 of 2002 will not survive. The petitioner in CWP No. 598 of 2002 had not placed true facts before the learned Tribunal and before this Court. It is expected from every litigant to place all the material on record necessary for the adjudication of the case. There should not be any suppression of material facts by a litigant. Their Lordships of the Supreme Court in G.M. Haryana Roadways v. Jai Bhagwan and another, 2008(3) Scale 448 have held as under :- “Suppression of material fact is viewed seriously by the Superior Courts exercising their discretionary jurisdiction. In S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and others, 2004(7) SCC 166, this Court on suppression of fact held :- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case.” The said observation was quoted with approval by one of us in Arunima Baruah v. Union of India (UOI) and others, 2007(6) SCC 120, wherein the question which was raised was : How far and to what extent suppression of fact by way of non-disclosure would affect a person’s right of access to justice ? The court notices that so as to enable it to refuse to exercise its discretionary jurisdiction, the suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Recently, in Prestige Lights Ltd. v. State Bank of India, 2007(8) SCC 449, this Court held :- “The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” Had the aforementioned facts been brought to the notice of this Court, the Special Leave Petition might have been dismissed summarily. Even delay in filing the same might not have been condoned. The Court was not required to waste so much of time when the State itself had, for all intent and purport, accepted the award.” 13.In view of the law laid down by the Hon’ble Supreme Court and the discussion made hereinabove, we are of the confirmed opinion that the order passed by the learned Tribunal is bad in law. Consequently, the CWP No. 705 of 2001 is allowed. Order dated 5.1.2001 passed by the learned H.P. Administrative Tribunal in O.A. No. (M) 13 of 1999 is quashed and set aside. CWP No. 598 of 2002 is dismissed being devoid of any merit. The petitioner (Brij Lal) in CWP No. 598 of 2002 is burdened with costs quantified at Rs. 5,000/-. M.R.B. ———————