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2015 DIGILAW 1010 (HP)

Gulshan Kumar v. State of H. P.

2015-08-04

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. The petitioner was deputed to drive the departmental vehicle from Shimla to Kalka. According to the petitioner, when he was coming back from Kalka to Shimla, he got down from the vehicle. He was overpowered by some unknown persons. He was drugged by them. Some person dropped him at his residence. He regained consciousness and found himself at his residence on 6.10.2004. The fact of the matter is that the vehicle of the petitioner met with an accident on the evening of same day at Kacchi Ghati, Shimla, causing loss to the tune of Rs. 59,190/-. The petitioner neither reported the matter to the police nor apprised the Department. 2. The disciplinary proceedings were initiated against the petitioner under Rule 14 of CCS(CCA) Rules 1965, vide memorandum dated 2.12.2014. The petitioner filed a detailed reply to the same vide Annexure P-5 dated 10.12.2014. The Inquiry Officer was appointed. The Inquiry Officer submitted the report to the Disciplinary Authority. The Inquiry Officer gave findings that the delinquent official drove the vehicle in a negligent manner, resulting in the accident on 5.10.2004. The version of the petitioner that some unidentified persons have drugged him and dropped him at his home was not accepted by the Inquiry Officer. The petitioner was permitted to file representation to the inquiry report vide memorandum dated 28.7.2006. The petitioner filed the detailed reply to the memorandum vide Annexure P-11 dated 11.8.2006. Thereafter, the Disciplinary Authority removed the petitioner vide order dated 21.9.2006 by passing a speaking/detailed order. The representation, made by the petitioner against the findings of the Inquiry Officer, was dealt with in detail. 3. The petitioner assailed the removal order dated 21.9.2006 by filing OA No. 3229 of 2006 before the erstwhile H.P. State Administrative Tribunal. It was transferred to this Court and assigned CWP(T) No. 6354 of 2008. Since the petitioner had not filed any statutory appeal against the order of removal, he was permitted to file statutory appeal, while disposing of the petition on 5.4.2010. The petitioner filed statutory appeal and the same was dismissed by the appellate authority vide office order dated 10.6.2010. 4. The accident has taken place on 5.10.2004. The plea of the petitioner that when he came out from the vehicle, he was drugged by some unidentified persons and he was dropped by them at his house, which is at a distance of 15 kms. 4. The accident has taken place on 5.10.2004. The plea of the petitioner that when he came out from the vehicle, he was drugged by some unidentified persons and he was dropped by them at his house, which is at a distance of 15 kms. from Kacchi Ghatti, is unbelievable. It is a concocted story. It is not the case of the petitioner that he was robbed or some physical harm was caused to him. He does not know the name of the persons even who have dropped him at his house at Mehli. How a person, not known to him, should come to know that he is a resident of Mehli ? Even his wife could have made inquiries about the name of the person who had allegedly brought him to his house. The petitioner has caused the accident due to his rash and negligent driving and to avoid the liability, he has made this concocted cock and bull story. 5. The inquiry against the petitioner has been initiated and concluded in accordance with law. He has been permitted to file reply to the memorandum dated 2.12.2004. The Inquiry Officer has given the findings after correct appraisal of the evidence placed on record. The Disciplinary Authority before passing the order of removal has also given the opportunity to the petitioner to make representation against the inquiry report. He has filed detailed representation to the memorandum dated 28.7.2006. The grounds taken by the petitioner in his reply to memorandum dated 28.7.2006, have been duly considered by the Disciplinary Authority, while concurring with the findings of the Inquiry Officer. The order, whereby the penalty of removal has been imposed upon the petitioner on 21.9.2006, is a well reasoned order. Similarly, the appellate authority, while dismissing the appeal on 10.6.2010, has considered the grounds taken by the petitioner in his appeal. The order passed by the appellate Authority cannot be termed as laconic, as argued by Mr. Subhash Sharma, Advocate, for the petitioner. It is again very detailed and self-speaking order. The scope of judicial review in such matters is very limited. 6. Their lordships of the Hon’ble Supreme Court in the case of Apparel Export Promotion Council vrs. The order passed by the appellate Authority cannot be termed as laconic, as argued by Mr. Subhash Sharma, Advocate, for the petitioner. It is again very detailed and self-speaking order. The scope of judicial review in such matters is very limited. 6. Their lordships of the Hon’ble Supreme Court in the case of Apparel Export Promotion Council vrs. A.K. Chopra, reported in (1999) 1 SCC 759 , have held that it is the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authority. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. It has been held as follows: “16. The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the wellsettled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, observed : “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.” 7. Mr. Subhash Sharma, Advocate, for the petitioner has also argued that the penalty imposed upon his client is disproportionate. Their lordships of the Hon’ble Supreme Court in the case of Chairman and Managing Director, United Commercial Bank and others vrs. P.C. Kakkar and connected matter, reported in (2003) 4 SCC 364 , have held that it is settled position in law 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. It has been held as follows: “11. P.C. Kakkar and connected matter, reported in (2003) 4 SCC 364 , have held that it is settled position in law 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. It has been held as follows: “11. 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 in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) 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. 12. To put difference 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.” 8. In the instant case, the penalty of removal imposed upon the petitioner in view of the facts and circumstances of the case cannot be termed as disproportionate. 9. Accordingly, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any.