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2014 DIGILAW 1973 (ALL)

MAHESH CHANDRA MEENA v. STATE OF U. P.

2014-07-08

SUNEET KUMAR

body2014
Suneet Kumar,J. Heard learned counsel for the petitioner and Sri V.C. Dixit, learned counsel appearing for the respondents. 2. The petitioner was working as a driver with the respondent-corporation and on 23.11.2007 it was reported that the petitioner was absenting from duties since 29.10.2007. Petitioner was served charge-sheet on 05.07.2007 containing four charges which briefly is ( i) that the petitioner without information was absent since 29.10.2007 which has adversely affected the corporation and on resuming duties on 26.11.2007 plea of wife's illness was taken which is against the rules. ( ii) Without information the petitioner absented from 01.01.2008 to 05.02.2008 and on resuming duty on 06.02.2008 plea of wife's illness was taken. ( iii) petitioner was absent from 11.03.2008 to 11.04.2008 and on resuming duty on 12.04.2008 petitioner had taken plea of his mother's illness. ( iv) Petitioner absented without prior information from 11.03.2008 to 11.04.2008 and on resuming duty on 12.04.2008 plea of mother's illness was taken and after performing five days duty from date 18.04.2008 the petitioner was continuously absenting himself without permission and without application of leave. The month of april being peak season the Corporation has suffered loss of approximately 250 km. per day and apart from the above charges, it was stated that the petitioner's attendance was never satisfactory as is reflected from the service record. The petitioner since appointment has absented without information for the following periods:- 05.08.2003 to 09.08.2003, 13-14.08.2003, 16-17.10.2003, 19-20.10.2003, 27-28.10.2003, 03.11.2003 to 05.11.2003, 08.11.2003 to 10.11.2003, 29.09.2003 to 03.10.2003, 16-17.08.2003, 20.08.2003 to 22.08.2003, 16.12.2003 to 19.12.2003, 30-31.12.2003, 16.01.2004 to 18.01.2004 and similarly in the year 2004, 2005, 2006, 2007 and 2008. 3. The petitioner submitted his reply to the enquiry officer, Regional Manager, Aligarh on 29.01.2003 denying the allegations and further stated that on account of illness of his mother and wife he was unable to attend his duties and produced medical certificate for the period of absence. After concluding the enquiry, the enquiry officer submitted enquiry report on 21.03.2009 stating that all the charges stood proved against the petitioner. Show cause notice dated 10.06.2009 alongwith enquiry report was served upon the petitioner calling upon the petitioner to show cause as to why the services of the petitioner may not be terminated and the petitioner vide objection dated 03.07.2009 stated that he was under the influence of some supernatural disaster apart from the illness of his wife and mother. Show cause notice dated 10.06.2009 alongwith enquiry report was served upon the petitioner calling upon the petitioner to show cause as to why the services of the petitioner may not be terminated and the petitioner vide objection dated 03.07.2009 stated that he was under the influence of some supernatural disaster apart from the illness of his wife and mother. He was not in good mental health. 4. Considering the enquiry report dated 27.08.2009 the disciplinary authority affirmed the findings and approved the recommended punishment of dismissal from service by order dated 27.08.2009. 5. Aggrieved, petitioner filed appeal on 25.09.2009 before the Regional Manager U.P..S.R.T.C. stating therein that the enquiry officer has not stated the facts correctly rather suppressed the materials and submitted the enquiry report, the absence from duty by the petitioner was not deliberate but on compelling reasons i.e. on account of illness of his wife and mother and information was given by the petitioner to the officials on telephone further on account of the death of Amar Singh ( complainant) the petitioner could not examine him otherwise the truth would have surfaced. 6. The petitioner further stated that he had informed orally as well as in writing before absenting himself to Amar Singh, the complainant, and had he been alive the truth would come out. It is alleged that the procedure prescribed under Regulation 1981 was not followed. The petitioner was suffering on account of supernatural calamity and he has constitutional right to take leave. 7. The appellate authority after considering the appeal in detail rejected it vide order dated 23.11.2009 stating that the applications as alleged by the petitioner to have filed is not available on record and the petitioner in order to hide his fault is taking the name of ( deceased employee) Amar Singh. Since the day of his appointment till 2009 petitioner was continuously absenting without information, practically he never attended duty as a result of which the Corporation had to face serious inconvenience and financial loss. 8. Aggrieved by the appellate order, petitioner preferred revision before the Chairman of U.P.S.R.T.C, Tehari Kothi, Lucknow, which was also dismissed on 27.05.2011. 9. The orders dated 27.08.2009, 23.11.2009 and 27.05.2011 passed by the disciplinary authority, appellate authority and revisional authority, respectively, is under challenge. 10. 8. Aggrieved by the appellate order, petitioner preferred revision before the Chairman of U.P.S.R.T.C, Tehari Kothi, Lucknow, which was also dismissed on 27.05.2011. 9. The orders dated 27.08.2009, 23.11.2009 and 27.05.2011 passed by the disciplinary authority, appellate authority and revisional authority, respectively, is under challenge. 10. Submission of learned counsel for the petitioner is that the orders impugned are illegal and arbitrary and the petitioner's grievance has not been considered. The nature of enquiry is defective as the petitioner was not given an opportunity to examine the complainant Amar Singh ( deceased employee) and further petitioner belongs to poor family and the absence of the petitioner was due to unavoidable circumstances and beyond control on account of supernatural calamity ( 'daivik apda'). 11. The petitioner in the entire writ petition has not pleaded nor taken any ground on which this Court can review the disciplinary proceedings. The scope of judicial review of disciplinary proceedings is very limited. It is not the case of the petitioner that the procedure as prescribed under U.P. Secondary Education Services Commission ( Removal of difficulties) ( Second) order, 1981 was not followed. Petitioner was served charge sheet to which he submitted his reply. The enquiry was conducted by the enquiry officer in which the petitioner participated. The copy of the enquiry report along with show cause notice was supplied and thereafter penalty was imposed, against which petitioner preferred appeal as well as revision. The court in its power of judicial review cannot re-examine/assess the evidence nor come to a finding different from that of the disciplinary authority. 12. The Supreme Court in the case of State of Madras vs. G. Sundaram AIR 1965 SC 1103 had explained the scope of judicial review::- "7. It is well settled now that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It was so held in State of Orissa v. Murlidhar, AIR 1963 SC 404 , where it was said at p. 408: "Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. It was so held in State of Orissa v. Murlidhar, AIR 1963 SC 404 , where it was said at p. 408: "Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself, and that, in our opinion, is not reasonable or legitimate." 8. Similar view was emphatically expressed in State of Andhra Pradesh v. Sree Rama Rao, AIR1968 SC 1728, wherein it was said at p. 1726: "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 petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. But the departmental authorities are, if the enquiry is otherwise properly held the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution." 9. It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. This view was reiterated in Union of India v. H. C. Goel,." 13. In State Bank of India vs. Ramesh Dinkar Punde ( 2006) 7 SCC 212Hon'ble Supreme Court has held that:- "13. We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the findings of the Inquiry Officer, the Disciplinary Authority and the Appellate Authority by acting as a court of appeal and re- appreciating the evidence. 14. In the case of T.N.C.S. Corpn. Ltd. and Ors. ( appellants) v. K. Meerabai ( respondent) ( 2006) 2 SCC 255 , the plea of no loss or quantum of loss was rejected by the Court. It was pointed out at page SCC 267 para 29 as under: "29. Mr. Francis also submitted that a sum of Rs. 34,436.85 being 5% of the total loss of Rs. 6,88,735/- is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis- appropriating the Corporation 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 mis-placed sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority." 15. 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 mis-placed sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority." 15. The Supreme Court recently in Nirmala J. Jhala vs. State of Gujarat and another ( 2013) 4 SCC 301 ) after considering earlier judgments has again reiterated the principle of judicial review in disciplinary proceedings and held that in the departmental enquiry, the nature and standard of proof is not at par with the quasi judicial and quasi criminal proceedings; the principle of preponderance is applicable and not the doctrine of proof beyond reasonable doubt. 16. The Apex Court further considered the parameter of the Court's power of judicial review of administrative action or decision. The relevant portion of the judgment of Nirmala J. Jhala ( supra) is as follows:- "The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision- making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene." 17. The Supreme Court in Union of India and others v. Gulam Mohd. Bhat, AIR 2005 SC 4289 , dealt with the case of overstay of leave without information and upheld the punishment of dismissal. The Court observed as under:- "This Court had occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of U.P. v. Ashok Kumar Singh [ 1996 ( 1) SCC 302 ], the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterized as disproportionate and/or shocking. ( See Mithlesh Singh v. Union of India and others, [ 2003 ( 3) SCC 309 ]. It has been categorically held that in a given case the order of dismissal from service cannot be faulted. In the instant case the period is more than 300 days and that too without any justifiable reason. That being so the order of removal from service suffers from no infirmity. The High Court was not justified in interfering with the same. The order of the High Court is set aside. " 18. In the instant case the period is more than 300 days and that too without any justifiable reason. That being so the order of removal from service suffers from no infirmity. The High Court was not justified in interfering with the same. The order of the High Court is set aside. " 18. Applying the law on the facts of the case at hand, it transpires that the petitioner was a driver at Artauli Depo, Aligarh and while working at Atrauli Depo, Senior Station Incharge Amar Singh on 27.04.2007 reported to the Assistant Regional Manager that without prior permission petitioner is continuously absenting himself, as a result of which, the Depo has suffered loss of several hundred kilometers thus causing financial loss as well as inconvenience to the passengers, appropriate action be initiated against the petitioner under Uttar Pradesh Secondary Education Services Commission ( Removal of Difficulties) ( Second) Order, 1981. On the report, the petitioner was charge sheeted, to which, the petitioner replied not disputing the facts of his unauthorized prolonged absence causing loss to the corporation. The explanation furnished by the petitioner for his absence was that it was beyond his control on account of unnatural calamity and illness of his wife and mother. 19. By a detailed order taking into consideration, the report submitted by the enquiry officer, the disciplinary authority imposed the penalty as proposed by the enquiry officer. The same plea was taken by the petitioner in appeal filed before the Regional Manager, U.P. State Road Transport Corporation, Aligarh, which was rejected after considering the grounds taken in appeal by order dated 23.11.2009 and similarly revision was dismissed on 27.05.2011. 20. The record reflects that the petitioner has not disputed the factum of his prolonged absence without approval from the authorities thus causing loss to the corporation and loss in kilometers. 21. The learned counsel for the petitioner has failed to show as to how the petitioner was prejudiced or there was violation of principles of natural justice adversely affecting the petitioner or procedural error causing injustice. There was sufficient material before the authorities on the basis of which the charges was proved. The Court cannot sit in appeal over the finding or assess the sufficiency of the evidence. 22. It is made clear that no other ground or submission was pressed. 23. There was sufficient material before the authorities on the basis of which the charges was proved. The Court cannot sit in appeal over the finding or assess the sufficiency of the evidence. 22. It is made clear that no other ground or submission was pressed. 23. For the reasons stated hereinabove, the writ petition is devoid of merit and is accordingly dismissed.