R.B. Misra, J.@mdashHeard Mr. Rajnish Maniktala, learned Counsel for the petitioner and Mr. Ashok Sharma, learned Counsel for Himachal Road Transport Corporation (in short ''HRTC Corporation'').
2. In the present writ petition, the order dated 28.2.2002 passed by the learned H.P. State Administrative Tribunal, Shimla (in short ''learned Tribunal'') in OA No. 119/95 has been challenged, whereby, the O.A. preferred by the petitioner against the order dated 25.2.1993 removing him from the service of Corporation and further prayer directing to re-engage him with consequential benefits, has been denied.
3. It appears that the petitioner was initially deployed as daily wager by the respondent corporation in the year 1980. Thereafter his services were regularized in the year 1982. The departmental proceedings were initiated against the petitioner wherein he was served with two charge-sheets dated 20.11.1991 and 21.3.1992. The charges indicated therein were as follows:
(i) Alleged attempt to defraud the corporation of its legitimate revenue by non-issuance of tickets to the passengers immediately when they boarded the bus even after realizing the fare charges from them.
(ii) Alleged negligence in performance of assigned duty.
4. Sh. Mohan Lal, Superintendent of the corporation was appointed as Inquiry Officer. The petitioner was served with charge-sheet and was given opportunity to respond wherein the petitioner had admitted his guilt, however, according to him under the pressure of respondent No. 2 as the petitioner was allured that he would be allowed to go scot free and disciplinary proceedings would be stopped provided he apologise. The petitioner was served with a memo dated 7.1.1993 indicating that after careful consideration of the record and report of Inquiry Officer, disciplinary authority came to the conclusion that the petitioner was not fit person to be retained in service and the penalty of removal from service was proposed. Petitioner was given opportunity to make representation in reference to the said proposed penalty. The representation made by the petitioner was considered and rejected and the petitioner was served with another office order dated 25.2.1993 removing him from service with immediate effect. Appeal preferred against such order was also rejected on 17.4.1993. Petitioner preferred writ petition No. 424 of 1993 before this High Court against the order of removal, whereby operation of the order of removal was initially stayed by this Court. The respondents preferred SLP before the Hon''ble Supreme Court whereby stay order passed by this Court was altered with further direction to the High Court to dispose of the writ petition. In that reference, this Court vide order dated 30.12.1994 has held that the writ petition was not maintainable in the High Court.
5. The respondents, however, have controverted the assertions of the petitioner made before learned Tribunal that any coercion or pressure was created to the petitioner when he admitted to his guilt. According to the respondents, petitioner had willfully admitted his guilt in writing when he appeared before the Inquiry Officer on 29.8.1992.
6. It was argued for the petitioner before learned Tribunal that the provisions of Rule 14 of Central Civil Service (Classification, Control and Appeal) Rules, 1965 (in short the ''CCS (CCA) Rules'') have not been followed and the inquiry has not been conducted in consonance with the provisions of above Rules and despite admission, the inquiry officer was under obligation to conduct the inquiry and the inquiry report was to be served to the petitioner and in reference to the representation, the decision was to be taken in consonance to the gravity of offence.
7. After considering the submissions of the petitioner and rival contentions advanced on behalf of the respondents herein, learned Tribunal has arrived at its findings that on 29.8.1992 petitioner has admitted his guilt in the same language in which he had admitted his guilt in the charge-sheet dated 20.11.1991 and in those circumstances, the inquiry officer returned the case file with report. It has also been observed by learned Tribunal that the petitioner did not admit his guilt on the first date of hearing and signatures of the petitioner on this statement were available. However, the petitioner submitted written statement in the shape of letter to the inquiry on 29.8.1992 bearing his signatures which was treated to be made in reference to Sub-clause (9) of Rule 14 of the CCS (CCA) Rules. The Inquiry Officer has stated that the petitioner has made a confessional statement on 29.8.1992 that he had received charge-sheet and pleaded guilty to the charge leveled against him and that the petitioner did not want any formal inquiry. The learned Tribunal has arrived at conclusion that the procedural requirement for conducting disciplinary inquiry in consonance to provisions of CCS (CCA) Rules has been completed. As the petitioner has already admitted his guilt, therefore, keeping in view of his admitting the guilt, punishment of removal from service was found to have been correctly awarded by learned Tribunal.
8. While assailing the order dated 28.2.2002 passed in OA No. 119/1995, learned Counsel for the petitioner has submitted that (i) that the Inquiry Officer has not proceeded as per procedure contained in Rule 14 of CCS (CCA) Rules; (ii) In view of Sub-rule (i) of Rule 14, no order imposing any of the penalties as specified in Clause (v) to (ix) of Rule 11 could be made except after proper inquiry; (iii) The disciplinary authority has erroneously held that the charges as proved in view of the provisions in Sub-rules (9) and (10) of Rule 14 and on that ground the inquiry report submitted by the Inquiry Officer was not legal and no penalty could be imposed in that respect; (iv) The imposition of penalty by way of removal order is disproportionate to the gravity of offence; (v) For the sake of argument without conceding that even if the petitioner had admitted his guilt before the Inquiry Officer, even then, the inquiry officer was duty bound to conduct the inquiry in consonance to the provisions of CCS (CCA) Rules and (vi) the petitioner since belongs to weaker section of the society had, however, succumb to the pressure of respondent No. 2 resulting in confessional statement, which was not made voluntarily, as such was not to be taken as ground for awarding punishment.
9. Learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in
10. To strengthen his stand, Sh. Ashok Sharma, learned Counsel for the respondent has invited the attention of this Court to the relevant paragraphs 12 and 13 of the aforesaid judgment of Harendra Arora (supra) which is reproduced herein below:
12. Thus, from the case of ECIL it would be plan that in cases covered by the constitutional mandate i.e. Article 311 (2), non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision and order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of the enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein.
13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the enquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russell V Duke of Norfolk-6 it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability dependents upon the context and the facts and circumstances of each case.
11. In respect of the punishment as submitted by Mr. Ashok Sharma that the petitioner had earlier on four occasions have also been found guilty of similar offences, however, after admission of guilt in the present case, the removal of petitioner from service is in consonance to the decision of Supreme Court in
12. We have heard learned Counsel for the parties. According to Sub-clause (1) of Rule 14 no order imposing a penalty as mentioned in Clause (v) to (ix) of Rule 11 could be imposed except after an inquiry. As per Sub-rule (9) of Rule 14, if the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement or defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign or record and obtain the signature of the Government servant thereon. The Inquiring Authority shall return a finding of guilt in respect of those articles of charge to which the Government servant pleads guilty.
The disciplinary authority can initiate an inquiry and appoint any Inquiry Officer. Thereafter, the Inquiry Officer has to proceed as per Sub-rule (7) to (9) and (11) of Rule 14. While doing so, if the delinquent official confesses his guilt in writing, the Inquiry Officer cannot say that he will still hold inquiry. There is a distinction in the expression used in Sub-rule (5) and Sub-rule (9) read with Sub-rule (10) of Rule 14. In Sub-rule (5) when a charge-sheet is served and the delinquent official pleads guilty, the disciplinary authority "is required to record its finding on each charge after taking such evidence as it may think fit and shall act in the matter laid down in the Rule (15) of CCS (CCA) Rules". However, when a confessional statement is made before an Inquiry Officer under Sub-rule (9) of Rule 14 of the Rules, the Inquiry Officer "shall record a plea, sign and record and obtain the signatures of the Government servant thereon". Thereafter as per Sub-rule (10), Inquiring Authority "shall return a findings on guilt in respect of those articles of charge to which the Government servant pleads guilty."
13. In our respectful consideration, we are of the considered view that as indicated by the petitioner that he has admitted his guilt by submitting the same in his hand writing and by specifically indicating that he has received the charge-sheet and pleaded guilty to the charge leveled against him and the petitioner did not want any formal inquiry, in these circumstances, the requirement of Sub-rules 9 and 10 of Rule 14 has been taken into consideration and that the proposed punishment has already been conveyed to the petitioner vide memorandum dated 7.1.1993 and in that reference, representation has been considered and proposed penalty has been inflicted by office order dated 25.2.1993, therefore, the compliance of the provisions of holding disciplinary inquiry has already been completed and in the facts and circumstances, nothing has been demonstrated or brought before us where it could be said that the petitioner has been prejudiced by non-serving the inquiry report when he has already made a representation in reference to the proposed penalty.
14. In
The disciplinary authority on receiving the report of the enquiry officer may or may not agree with the findings recorded by the latter. In case of disagreement, the disciplinary authority has to record the reasons for disagreement and then to record its own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry and report.
Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority.
15. In
16. In Hoti Lal''s case (supra) the Supreme Court has followed its earlier decision which is necessary to be referred and is as below:
In
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury Associated Provincial Picture Houses Ltd. v. Wednesbuny Corporation (1948) 1 KB 223, test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision as absurd or perverse. The Court would not, however, go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury (supra) test.
17. In
A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The appellant''s conduct in collecting fare at the designated place and not collecting fare from persons who had already travelled were in violation of various regulations contained in the A.P. State Road Transport Corporation Employees (Conduct) Regulations, 1963.
Interference with the quantum of punishment cannot be a routine matter.
Case-law shows that the Court should not interfere with the administrator''s decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscience of the Court in the sense that if was in defiance of logic or moral standards. 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 for 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 shorten litigation, 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.
18. In
It is now well settled that commission of a criminal breach of trust by a person holding a position of trust is a misconduct of serious nature. The charges levelled against the respondent having been proved, it is held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution was not at all justified in reducing the punishment and imposing the punishment of stoppage of two increments only.
The High Court has not arrived at the conclusion that the quantum of punishment imposed upon the respondent was disproportionate to the gravity of his misconduct. Even in such a situation, the course which would have been ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the question in regard to the quantum of punishment.
The High Court without assigning any reason could not have substituted its opinion to that of the disciplinary authority.
19. In Ram Kishan Arora''s case (supra) the employee was a bus conductor who was found guilty of misconduct of serious nature (carrying several passengers without ticket) and in obstructing the inspection team from checking process and was awarded punishment of removal from service by the disciplinary authority consequent upon the outcome of the departmental inquiry. However, the High Court viewed that the punishment was disproportionate to the gravity of misconduct and has reduced the punishment to the stoppage of two increments without assigning any reason was held to be unjustified and as observed by the Supreme Court in case finding the punishment to be disproportionate, the course ordinarily open to the High Court was to remit the matter to the employer for reconsideration of the quantum of punishment.
20. In view of the decision of the Supreme Court in
21. In view of the above discussion we find that the writ petition is devoid of merit, therefore, the same is dismissed.
