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Himachal Pradesh High Court · body

2015 DIGILAW 1751 (HP)

Nain Sukh v. HRTC

2015-12-01

MANSOOR AHMAD MIR, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant Letters Patent Appeal has been preferred before this Court by the appellant against the judgment of the learned Single judge of this Court whereby the reliefs ventilated therein, of the impugned orders comprised in Annexures A-2, A- 3 and A-4 being quashed and set aside were declined to the appellant. 2. The facts necessary for deciding the instant appeal are of the appellant having been engaged as a conductor by the respondents. He was deployed in the aforesaid capacity in bus No.HP-10-0358 plying from Rohru to Reckongpeo. On 23.11.1998 the bus came to be inspected near Samarkot by Shri Krishan Chand and Darshan Chand, Inspectors. During the course of its inspection by the aforesaid it was found carrying 58 ½ passengers besides 600 kg load. Their inspection of the bus unearthed the factum of four passengers travelling without tickets from Rohroo to Samarkot from whom though a fare in the sum of Rs.36 stood collected by the appellant, yet the appellant having not issued tickets to them. The inspection party also recovered unpunched tickets from the bag of the appellant. The detection by the inspection party of commission of the aforesaid misdemeanor/misconduct by the appellant sequelled the serving of articles of charges upon him comprised in Annexure A-1. 3. The appellant herein submitted a reply to the charge sheet wherein he denied the imputations levelled against him in Annexure A-1. 4. The Inquiry Officer during the course of holding an inquiry against the appellant in proof of the articles of charges comprised in Annexure A-1, recorded the statements of Shri Krishan Chand, Inspector who appeared as PW-1 and Satish Kumar, who appeared as DW-1. The Inquiry Officer on appraising the testimony of PW-1, who deposed in tandem with as also in corroboration to the imputations of misconduct levelled against the appellant comprised in Annexure A-1, construed his testimony to be both credible as well as inspiring. The Inquiry Officer on appraising the testimony of PW-1, who deposed in tandem with as also in corroboration to the imputations of misconduct levelled against the appellant comprised in Annexure A-1, construed his testimony to be both credible as well as inspiring. However, the testimony of Satish Kumar (DW-1) who deposed, that he along with Savir Dass, Banvir Singh and Bhag Singh were travelling in the aforesaid bus and all had been issued tickets by the appellant yet the same remained in the custody of one of them, who had earlier alighted therefrom at a distance preceding 200 meters to the bus having been subjected to inspection, was disbelieved by the Inquiry officer especially when the unpunched tickets continued to be retained in the bag of the appellant wherefrom they were collected by the Inspectors aforesaid. In sequel, the Inquiry officer concluded that the imputations levelled against the appellant herein comprised in Annexure A-1 stood established. 5. The appellant herein was served on 11.7.2000 with a memo by the respondent whereto he furnished a reply. The Disciplinary Authority vide order dated 15.9.2000 imposed a penalty of stoppage of two increments with cumulative effect upon the appellant. The order of the Disciplinary Authority was assailed by the appellant before the Appellate Authority. The Appellate Authority vide order Annexure A-3 rejected his appeal. However the appellant preferred another appeal which vide order of 27.2.2002 stood rejected on the ground of his earlier appeal having been considered and it having stood previously rejected by the Divisional Manager. The appellant had instituted OA No. 3017/2002 before the H.P State Administrative Tribunal which OA on disbandment of the Administrative Tribunal was transferred to this Court and was assigned No. CWP(T) No. 8915 of 2008. Therein the appellant had sought for quashing of impugned Annexures P-2, P-3 and P-4. The appellant had instituted OA No. 3017/2002 before the H.P State Administrative Tribunal which OA on disbandment of the Administrative Tribunal was transferred to this Court and was assigned No. CWP(T) No. 8915 of 2008. Therein the appellant had sought for quashing of impugned Annexures P-2, P-3 and P-4. The learned Single Judge of this Court while seized of the CWP(T) aforesaid had on a close and circumspect discernment of the entire record of the case rendered the impugned judgment concluding therein the factum of the Inquiry Officer having carried out the inquiry against the appellant in accordance with law besides therein held that the power vested in this Court to judicially review the findings and conclusions recorded by the Inquiry officer in his inquiry report comprised in Annexure A-1, being circumscribed to unearth from the material on record portrayals up surging the factum of the Inquiry Officer preceding his authoring the inquiry report wherein he recorded conclusions of guilt against the appellant, his having infringed the principles of natural justice for hence rendering both the procedure adopted by him in conducting the inquiry as also conclusions drawn thereupon by him to be both vitiated as well as legally unsustainable. Contrarily the power vested in a writ Court to judicially review the findings recorded by the Inquiry Officer in inquiry report comprised in Annexure A-3 not obviously extending to its reappraising or reevaluating evidence as existed before the Inquiry Officer rather the power to reassess or reevaluate the evidence relied upon by the Inquiry Officer vesting in the appellate forum which the writ court is not, precluded the learned Single judge to not delve into the evidence relied upon by the Inquiry Officer or to reevaluate or reappraise it, rather with the material on record depicting adherence by the Inquiry Officer with the principles of natural justice in conducting the inquiry constrained the learned Singe Judge to impute sanctity to the conclusions drawn by him in Annexure A- 3. Apart therefrom hence with existence of telling material portraying adherence by the Inquiry Officer with the principles of natural justice in conducting the inquiry hence rendered unavailable for succor by the appellant, the permissible parameter on infringement whereof a Writ Court may have been coaxed to judicially review the findings of fact recorded in Annexure A-3. Necessarily then the learned Single Judge accepted the findings recorded by the Inquiry Officer. Necessarily then the learned Single Judge accepted the findings recorded by the Inquiry Officer. It was also concluded by the learned Single Judge that the conclusions drawn therein by the Inquiry Officer could not be rendered infirm merely on the score of his having relied upon the testimony of PW- 1. 6. This Court has with incision traversed through the entire material on record. In the aforesaid endeavor it has been unable to unearth therefrom the imperative fact of the Inquiry Officer having conducted the inquiry against the appellant in transgression of the cardinal tenets of natural justice rather there exists on record abundant material depicting the factum of the inquiry Officer while holding an inquiry against the appellant his having begotten compliance with the principles of natural justice, in as much, as his having afforded an opportunity to the appellant to adduce evidence in defence as also his having afforded an opportunity to the appellant to cross-examine the witness. In aftermath with material on record vividly manifesting adherence, by the Inquiry Officer while his conducting an inquiry against the appellant, with the tenets of natural justice rendered the proceedings preceding the authoring of inquiry report comprised in Annexure A-3 to remain unvitiated besides as a corollary with the power vested in this Court to judicially review it, being restricted to this court gauging any inherent lapse or shortcoming in the holding of an inquiry by the Inquiry Officer against the appellant herein arising from non adherence by the Inquiry Officer with the principles of natural justice which parameter for the reasons assigned hereinabove and hereinafter when is unavailable , precludes this Court to interfere with Annexure A-3. Sequelly in other words given the non-existence or lack of unfoldment by the material existing on record of the Inquiry Officer having not conformed to the principles of natural justice while conducting the inquiry against the appellant constrains this Court to, in the exercise of its power to judicially review the findings drawn by the Inquiry Officer in Annexure A-3, not dislodge them. The endeavor on the part of the learned counsel for the appellant that the Inquiry Officer had untenably relied upon the testimony of PW-1 in pronouncing thereupon the guilt of the appellant qua the imputations of misconduct levelled against him in Annexure A-1 besides had committed a gross legal misdemeanor in discarding the testimony of DW-1 gathers no legal sinew as countenancing the aforesaid endeavor of the learned counsel for the appellant would constrain this Court to re-appreciate/re-evaluate besides reappraise the testimonies of PW-1 and DW-1 for hence upsetting the findings of fact recorded by the Inquiry Officer which concert would tantamount to this court proceeding to fathom the weight, sufficiency or adequacy of evidence adduced and relied upon by the Inquiry Officer even when it is for the reasons assigned hereinafter legally interdicted to do so. 7. The Hon’ble Apex Court in a judgment reported in 2015 AIR SCW 455 titled as G.M (Operations) S.B.I v. R. Periyasamy, the relevant paragraphs 9 and 12 stand reproduced hereinafter has graphically spelt out therein that a writ Court is prohibited to gauge whether the evidence adduced before the Inquiry Officer besides relied upon by him to anchor thereupon his conclusion of imputations of misconduct levelled against the appellant having stood proven, is either sufficient or adequate. However, it has been also vividly with explicity pronounced therein that a writ Court may interfere with the findings of fact recorded by the Inquiry Officer in the Inquiry report only when such findings are anchored upon palpably inadmissible evidence. Apart therefrom it further stands enunciated therein that the factum of existence or non-existence of clinching evidence in support of the charges against the appellant is too not a parameter for warranting any interference by a writ Court with the findings of fact recorded by the Inquiry Officer, as the aforesaid parameter necessitates embarking upon by this Court a legally proscribed exercise qua existence of sufficient and adequate evidence on record for sustaining the findings of fact recorded against the appellant by the Inquiry Officer in his Inquiry report. When the parameter of existence of sufficient or adequate evidence on record in support of the charges against the appellant is a parameter prohibited to be resorted to, by this Court for it to hence in the exercise of its power of judicially reviewing Annexure A-3 upset the findings of fact recorded therein, as a corollary, for reiteration any endeavor on the part of this court to by reappraising or reevaluating evidence as exists on record gauge the tenacity of the findings of fact recorded against the delinquent/appellant by the Inquiry Officer in Annexure A-3 would obviously be a resort to by this Court of a legally proscribed exercise of its adjudging both the sufficiency or adequacy of evidence especially when the existing evidence is ex-facie not demonstrably inadmissible. In sequel, when there is no emanation from the evidence existing on record of its being inadmissible hence discard able for thereupon pronouncing upon the guilt of the appellant herein, necessarily when the aforesaid parameter of inadmissibility of evidence for constraining this Court to dislodge the findings recorded in Annexure A-3, which yet stood relied upon by the Inquiry Officer in concluding qua the guilt of the appellant is amiss whereas its existence may have prodded this court to while discarding it quash Annexure A-3. In aftermath when no permissible parameter enjoined by the verdict of the Hon’ble Apex Court exists for prodding this court to interfere with the findings of fact recorded by the Inquiry Officer in Annexure A-3, moreso when any fathoming by this Court qua existence on record of clinching evidence for sustaining the charges against the appellant would tantamount to an impermissible exercise by this Court especially when it devolves upon sufficiency or abundancy of evidence moreso with its falling within the gamut or ambit of the prohibitions cast by the Hon’ble Apex Court in its judgment, apt paragraphs whereof stands extracted hereinafter, upon this court to judicially review the findings of fact recorded by the Inquiry Officer. “9. It is not really necessary to deal with the judgment of the learned Single Judge since that has merged with the judgment of the Division Bench. However, some observations are necessary. “9. It is not really necessary to deal with the judgment of the learned Single Judge since that has merged with the judgment of the Division Bench. However, some observations are necessary. The learned single judge committed an error in approaching the issue by asking whether the findings have been arrived on acceptable evidence or not and coming to the conclusions that there was no acceptable evidence and that in any case the evidence was not sufficient. In doing so, the learned single judge lost sight of the fact that permissible enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned single judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not sufficient to hold the respondent guilty. ………………….. 12. On the question of shortage of money, the Division Bench merely upheld the findings of the learned single judge that there was no clinching evidence in support of the charges. The Division Bench approved the findings of the single judge that the enquiry report that the shortage of cash occurred only between 16.11.1985 and 05.04.1986, when the respondent was a joint custodian, was based on surmise and conjecture. The Division bench did not care to advert to the evidence. That evidence rightly relied on by the enquiry officer which established that the shortage did occur between 16.11.1985 and 05.04.1986. In fact the Inquiring Officer has given cogent reasons for rendering the findings that the shortage could not have occurred after 05.04.1986 up to the discovery of 15.04.1986, when two acting cashiers had functioned. Moreover, the observation that there is no clinching evidence in support of the charges is another way of saying that the evidence is insufficient or inadequate, which is not permissible. It bears repetition that sufficiency or adequacy of evidence is not the ground on which the findings of facts may be set aside by the High Court under Article 226. Moreover, the observation that there is no clinching evidence in support of the charges is another way of saying that the evidence is insufficient or inadequate, which is not permissible. It bears repetition that sufficiency or adequacy of evidence is not the ground on which the findings of facts may be set aside by the High Court under Article 226. The justification offered by the Division Bench that the learned single judge had to undertake the exercise of analysing the findings of the enquiry officer because the appellants had deprived the respondent of his livelihood is wholly untenable. A transgression of jurisdiction cannot be justified on the ground of consequences, as has been done. Moreover, the reliance by the Division Bench on Mathura Prasad v. Union of India & Ors. is entirely misplaced, since that case arose in an entirely different set of circumstances. We also find it difficult to understand the justification offered by the Division Bench that there was no failure on the part of the respondent to observe utmost devotion to duty because the case was not one of misappropriation but only of a shortage of money. The Division Bench has itself stated the main reason why its order cannot be upheld in the following words,” on re-appreciation of the entire material placed on record, we do not find any reason to interfere with the well considered and merited order passed by the learned single Judge.” 8. In trite the ratio propounded by the Hon’ble Apex Court in the aforesaid judgment, the relevant paragraphs whereof stand reproduced hereinabove is with aplomb appositely applicable to the facts at hand, for hence discountenancing the submission of the learned counsel for the appellant of there being neither adequate or sufficient evidence nor any clinching evidence in support of conclusions arrived at by the Inquiry Officer in his inquiry report comprised in Annexure A-3. Necessarily with this Court having for the reasons aforesaid concluded qua the parameters enjoined in the relevant extracted paragraph of the afore-referred judgment of the Hon’ble Apex Court for constraining this Court to judicially review the findings and conclusions recorded by the Inquiry Officer ask for evidence portraying the factum of the Inquiry Officer having conducted the inquiry against the appellant in transgression of the principles of natural justice, which apposite parameter for the reasons aforesaid remains un-satiated also qua unfoldment by material on record of the Inquiry Officer in authoring Annexure A-3 having relied upon inadmissible evidence besides discard able evidence which taint besmirching Annexure A-3 has not surged forth. As a concomitant, this Court does not deem it fit to either interfere with the findings and conclusions recorded by the Inquiry Officer vide Annexure A-3 nor hence this Court deems fit to interfere with the well reasoned judgment of the learned Single Judge of this Court. 9. The summom bonum of the above discussion is of the findings of fact qua the guilt of the appellant recorded by the Inquiry Officer in Annexure A-3 necessitating reverence by this Court. Even otherwise they remain un-tainted by any misdemeanor committed by the Inquiry Officer while his holding an inquiry against the appellant arising from his not affording to the appellant herein an opportunity to adduce evidence in defence or of theirs being infected with any vice qua his having misconducted the inquiry in as much as his having prohibited the appellant to cross examine PW-1 for precluding him from eliciting truth from him. Naturally when sufficient and adequate opportunity was afforded to the appellant to defend himself in the proceedings conducted by the Inquiry Officer, no ground hence remains with the appellant for warranting this Court to rely upon the statement of DW-1 for ousting the findings of fact founded upon the credible deposition of PW-1 as recorded by the Inquiry Officer in Annexure A-3. For reiteration, the contention of the learned counsel for the appellant that the testimony of DW- 1 was un-tenably discarded by the Inquiry Officer whereas it comprises a credible piece of evidence to succor his defence is unworthy of acceptance by this court, as it impinges upon the existence of sufficiency or adequacy of evidence adduced before the Inquiry Officer any exercise whereto by this Court is legally interdicted by the Hon’ble Apex Court in the decision supra. 10. Consequently, the impugned judgment is upheld and the instant appeal is dismissed alongwith pending applications, if any.