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2015 DIGILAW 293 (UTT)

GURDEV SINGH v. CHAIRMAN, UTTARAKHAND TRANSPORT CORPORATION

2015-06-02

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, C.J. (Oral) Petitioner assails the order passed in disciplinary proceedings, by which he stands removed from service, as also the order passed by the appellate authority and, finally, the order passed by the Public Services Tribunal. 2. The petitioner was posted as Upholster in the Rudrapur Workshop of the respondent Transport Corporation. The disciplinary proceedings were taken against him and an Inquiry Officer was appointed and, finally, the report went against him. On the strength of the same, the disciplinary authority decided to impose punishment of removal from service. He challenged the same in an Appeal. The same was unsuccessful. He approached the Tribunal and failed there also. Consequently, he is before us. 3. We have heard learned counsel for the petitioner Sri Harshpal Sekhon and the learned counsel appearing for the respondents Sri Rajeev Singh Bisht. 4. The learned counsel for the petitioner would address six arguments before us. He would, firstly, submit that the inquiry originated from a complaint essentially by his Foreman, who was ill-disposed towards him. Secondly, he would submit that, in the inquiry, everything ultimately turned on the statement of the Foreman. Thirdly, he contended that his request for appointment of another Inquiry Officer was illegally turned down. Fourthly, he would submit that, at any rate, the punishment awarded against him was highly disproportionate having regard to the facts present. Next, he would submit that, at any rate, he may be given an opportunity to demonstrate that he is innocent. He would, lastly, submit that, in the criminal trial, he has been acquitted. 5. Per contra, the learned counsel for the Corporation would support the orders. 6. We must, first of all, remind ourselves of the limits of the jurisdiction of the judicial review. In fact, judicial review is also sought of the order passed by the Tribunal. So, it is a case, where the Tribunal has also had judicial oversight of the impugned proceedings, namely, the order of dismissal, as affirmed by the order in appeal. Judicial review is not an appellate jurisdiction. In other words, in judicial review, the court does not review the findings of fact unless the findings are perverse or a case is, otherwise, made out for judicial review, which is based on substantially the wednesbury principles. Judicial review is not an appellate jurisdiction. In other words, in judicial review, the court does not review the findings of fact unless the findings are perverse or a case is, otherwise, made out for judicial review, which is based on substantially the wednesbury principles. No doubt, the principle of proportionality, which is the latest recruit available in the hands of the writ court to interfere with unfair action, is also an important tool. 7. Bearing in mind these principles, if we approach the facts of this case, we would think that the petitioner may not have made out a case for interference. We stand informed by the learned counsel for the Corporation that, following a request of the petitioner, twice the Inquiry Officer was changed and the petitioner, again, was dissatisfied and he made yet another effort to get the Inquiry Officer changed; but, he was unsuccessful. The Tribunal notes in the order that the petitioner was given an opportunity, but he did not participate in the inquiry. Notwithstanding his persevering in remaining absent, the inquiry naturally proceeded and it culminated in a report adverse to the petitioner. The charges against the petitioner are that he manhandled his Foreman. The case is that he manhandled the Foreman twice. No doubt, the petitioner has a case that the Foreman was ill-disposed towards him; but, he did not avail of the opportunity to make good his case in the inquiry and he stayed away. After staying away from the inquiry, it does not lie in the mouth of the petitioner to turn around and contend that the findings in the inquiry based on evidence, otherwise acceptable, should be interfered with and, that too, in judicial review. 8. The acquittal of the petitioner cannot advance his case in departmental proceedings, as it is settled that the standard of proof required in a criminal trial is far more exacting and different from that which is required in a departmental proceeding. At this length of time, we cannot also accede to the request of the petitioner to afford another opportunity to him. 9. Lastly, the petitioner lays store by the doctrine of proportionality. The doctrine of proportionality, as noted by the Tribunal also, in the sphere of disciplinary action means, essentially, that the punishment must be so shocking to judicial conscience that the court could not possibly allow it to pass muster before it. 9. Lastly, the petitioner lays store by the doctrine of proportionality. The doctrine of proportionality, as noted by the Tribunal also, in the sphere of disciplinary action means, essentially, that the punishment must be so shocking to judicial conscience that the court could not possibly allow it to pass muster before it. In this case, the misconduct alleged against the petitioner is of a very serious nature, as he stands charged and the charge stands proved that he manhandled his Foreman. If the employer thought that these acts suffice to visit him with the punishment of removal from service, we would think, it is no part of the power of the Court in judicial review, keeping in mind the principle of doctrine of proportionality, to substitute what it might consider in the circumstances to be more just. 10. There is also a case that the petitioner was charge-sheeted for not doing his work properly, which also stood proved. Though we did enquire with the learned counsel for the Corporation as to whether the petitioner could be awarded a lesser punishment, it appears that there is no possibility of accommodating him in a lower post, as he was already working as an Upholster. 11. In the circumstances, we are left with no choice, but to non-suit the petitioner. The writ petition will stand dismissed. No order as to costs.