Mahesh Chandra Sharma S/O Sri Ishwar ... vs Uttar Pradesh
State Road Transport
on 15 February, 2006
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT
Sudhir Agarwal, J.
1. Heard Sri M.A
. Mishra, learned Counsel for the petitioner and Sri Sheshadri Trivedi holding brief
of Sri Samir Sharma learned Counsel for the respondents.
2. This writ petition arises out of the order dated 20th August 1997, (Annexure No. 7) passed by the
Assistant Regional Manager, UPSRTC, Pilibhit, removing the petitioner from service and the orders
dated 24th September 1997, and 11th August 1998, passed by Respondents No. 3 and 2, respectively
rejecting the appeals of the petitioner against the aforesaid order.
3. The brief facts as stated in the writ petition are that the petitioner while working as Driver in
UPSRTC was served with a charge sheet dated 27th March 1992, (Annexure No. 2 to the writ
petition ) containing four charges of abuse, misbehaviour, dereliction of duty etc. A Departmental
Enquiry was conducted against the petitioner, in which the charges were held proved by the Enquiry
Officer, Consequently a show cause notice dated 31st July 1997 was issued proposing punishment of
removal whereafter the Disciplinary Authority considering the entire record as well as reply
submitted by the petitioner passed the impugned order of removal holding all the charges proved
against him. The appeals preferred before the respondent Nos. 2 and 3 have been rejected.
4. The learned Counsel for the petitioner submits that the enquiry proceedings are vitiated in law
since charges could not be proved against him and the Enquiry Officer as well as Disciplinary
Authority have wrongly believed the evidence produced on behalf of the respondents while the
evidence produced in defence has wrongly been disbelieved and rejected. He, therefore, submits that
the rinding on charges is arbitrary and illegal, vitiating the impugned orders. He, further submits
that the allegations are mainly that of abuse and misbehavior and for the said charges punishment
of removal is highly disproportionate. In support of the aforesaid, reliance has been placed on the
judgment of the Apex court in the case of Ram Kisan v. Union of India .
5. Counter-affidavit has been filed on behalf of the respondents disputing the contention of the
petitioner. It is stated that the disciplinary enquiry was conducted against the petitioner in
accordance with Rules and after giving due opportunity of defence to the petitioner, the punishment
impugned in the writ petition has been passed. It is stated that the disciplinary authority has passed
Mahesh Chandra Sharma S/O Sri Ishwar ... vs Uttar Pradesh State Road Transport ... on 15 February, 2006
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the order of punishment against the petitioner after considering all the material available on record
including the reply to the show cause notice. It is also stated that retention of the petitioner is not in
the interest of the Corporation and the allegations that he has been punished with malafide
intention are false.
6. Heard learned Counsel for the parties and perused the record. It is not disputed that in the
present case the punishment orders have been issued by the Disciplinary Authority pursuant to the
inquiry report, wherein the charges were found proved. It is also not disputed that the copy of the
inquiry report was supplied to the petitioner vide show cause notice dated 31.7.97 (Annexure-5 to
the writ petition) which was replied by the petitioner vide Annexure-6 to the writ petition. The
disciplinary authority after receiving reply has passed a detailed order holding all the charges proved
against the petitioner and imposed punishment of removal. The petitioner represented/appealed
against the aforesaid order of punishment before the Assistant Regional Manager, UPSRTC, Pilibhit
which has been rejected by the Regional Manager, UPSRTC, Bareilly Region, Bareilly vide order
dated 24.9.97. The petitioner further preferred an appeal before Chairman, UPSRTC, Head Office at
Lucknow which has also been rejected by the order dated 11.8.98 (Annexure-11 to the writ petition).
7. Considering the first submission of the petitioner that the authority has wrongly believed the
evidence produced on behalf of the department and his defence evidence has been disbelieved
illegally, the mute question as to what is scope of judicial review in disciplinary matters.
8. The departmental authorities while proceeding in disciplinary matters do not function as Court
although since the right of livelihood is involved, the power exercised in disciplinary matters can be
said to be quasi judicial function. The authorities are not bound either by the Rules of evidence or
the procedure prescribed for trial of action in Court. The authorities can obtain all important
material on the point under inquiry from all sources and through all channels without being fettered
by Rules and procedure which govern proceeding in Court, provided they have confronted the
concerned employee with such information before taking the same into account. The High Court
does not sit in appeal over the decision of the disciplinary authority in disciplinary matters. The
scope of judicial review is to consider as to whether the inquiry is held by the competent authority,
following the procedure of affording adequate opportunity of defence to concerned employee and
decision was taken on some evidence which is relevant to arrive at the conclusion of guilt of the
employee concerned. It may also consider as to whether the decision is fair in the manner that on
the basis of the material available on record it may not be said that no reasonable person could ever
arrive at such a conclusion. Otherwise departmental authorities are sole judges of facts and if there
is some legal evidence whereupon the finding can be based, the adequacy, sufficiency and reliability
of such evidence is not a matter which can be permitted to be canvassed before the Court.
9. In B.C. Chaturvedi v. Union of India , reiterating the principles of judicial review in disciplinary
proceedings, the Apex Court held in para 12 as under:
Judicial review is not an appeal from a decision but a review of the manner in which
the decision is made. Power of judicial review is meant to ensure that the individual
receives fair treatment and not to ensure that the conclusion which the authority
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reaches is necessarily correct in the eye of the court. When an inquiry is conducted on
charges of misconduct by a public servant, the Court/Tribunal is concerned to
determine whether the inquiry was held by a competent officer or whether rules of
natural justice are complied with. Whether the findings or conclusions are based on
some evidence, the authority entrusted with the power to hold inquiry has
jurisdiction, power and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical rules of Evidence Act
nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding.
When the authority accepts that evidence and conclusion receives support therefrom,
the disciplinary authority is entitled to hold that the delinquent officer is guilty of the
charge. The Court/Tribunal in its power of judicial review does not act as appellate
authority to reappreciate the evidence and to arrive at its own independent findings
on the evidence. The Court/Tribunal may interfere where the authority held the
proceedings against the delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the mode of inquiry or
where the conclusion or finding reached by the disciplinary authority is based on no
evidence. If the conclusion or finding be such as no reasonable person would have
ever reached, the Court/Tribunal may interfere with the conclusion or the finding,
and mould the relief so as to make it appropriate to the facts of each case.
10. In R.S. Saini v. State of Punjab the Apex Court held:
The standard of proof required in disciplinary proceedings is that of preponderance
of probability where there are some relevant material which the authority has
accepted and which material may reasonably support the conclusion that the officer
is guilty. It is not the function of the High Court to review the material and to arrive
at its own independent finding. It also held if the enquiry has been properly held, the
question of adequacy or reliability of the evidence cannot be canvassed before the
Court. This is followed in Lalit Popli v. Canera Bank and Ors. . (Para 16-19)
11. The same view has been followed by the Apex Court in the case of High Court of Judicature at
Bombay v. Shashikant S. Patil , wherein it has been held as under:
Interference with the decision of departmental authorities can be permitted, while
exercising jurisdiction under Article 226 of the Constitution if such authority had
held proceedings in violation of the principles of natural justice or in violation of
statutory regulations prescribing the mode of such inquiry or if the decision of the
authority is vitiated by considerations extraneous to the evidence and merits of the
case, or if the conclusion made by the authority, on the very face of it, is wholly
arbitrary or capricious that no reasonable person could have arrived at such a
conclusion, or grounds very similar to the above. But we cannot overlook that the
departmental authority, (in this case the Disciplinary Committee of the High Court)
is the sole judge of the facts, if the inquiry has been properly conducted. The settled
legal position is that if there is some legal evidence on which the findings can be
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based, then adequacy or even reliability of that evidence is not a matter for
canvassing before the High Court in a writ petition filed before Article 226 of the
Constitution. (Para 16)
12. Recently, in the case of Government of Andhra Pradesh v. Mohd. Nasrullah Khan Judgment
Today 2006 (2) SC 82, the Apex Court has reiterated the scope of judicial review as confined to
correct the errors of law or procedural error if resulting in manifest miscarriage and justice or
violation of principles of natural justice. In para 7, the Hon'ble Court held as under:
By now it is a well established principle of law that the High Court exercising power
of judicial review under Article 226 of the Constitution does not act as an Appellate
Authority, Its 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. Judicial review is not akin to adjudication on merit by
appreciating the evidence as an Appellate Authority. (Para 7)
13. In the present case the disciplinary authority has stated in removal order that the complaint
against the petitioner that he abused Sri Khusi Ram, Senior Depot Incharge on 27.12.97, was proved
not only by the complainant but also by Sarwar Ali, a Junior Depot Incharge. The witnesses
produced by the petitioner in his defence also admit that there was a hot debate in loud voice
between the petitioner and Senior Depot Incharge. The appreciation of evidence on the part of the
authority has not been shown to be impermissible and the observation on the part of the authority
cannot be said to be legally impermissible. In these circumstances, submission that authorities have
wrongly accepted the departmental witnesses and disbelieved the defence evidence is not accepted.
14. Coming to the second contention, that the punishment is disproportionate to the gravity of
charges, I find that this submission also has no force, I have no doubt in my mind that a subordinate
employee who has not misbehaved or abused the senior officer is not a lit person for retention in
service. In order to maintain discipline in the institution, if a subordinate employee has abused the
senior authority or has misbehaved, such an employee cannot be retained in such institution and the
punishment of removal or dismissal cannot be said to be disproportionate. Recently the Apex Court
has occasion to consider this very aspect in a large number of cases and it has constantly taken the
view that the employee guilty of abuse, latches or misbehave with the senior officer deserves
punishment of dismissal or removal.
15. The Apex Court in U.P. State Textile Corporation Spinning Mills Jhansi v. State of U.P. and Ors.
1997 (75) FLR 45, has observed as under:
In the present case, the respondent No. 3 has not only given abuses and threats but
he has actually gone further and committed acts of violence, In my opinion, the
industry cannot run if a person like the respondent No. 3 is its employee, and hence
the only punishment called for was dismissal. The tribunal, in my opinion, acted
arbitrarily in interfering with the punishment of dismissal on the sentimental ground
that such dismissal would mean economic death. A person like the respondent No. 3
Mahesh Chandra Sharma S/O Sri Ishwar ... vs Uttar Pradesh State Road Transport ... on 15 February, 2006
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who behaves like a hooligan has to be dismissed, otherwise the industry cannot run.
16. The Apex court recently in a catena of cases has upheld the punishment of dismissal for using
abusive language. In Mahindra and Mahindra Ltd. v. N.B. Narawade Judgment Today 2005 (2) SC
583, the workmen abused the superior officers twice using filthy abusive language. The Apex Court,
upholding the punishment of dismissal, observed as under:
We too are of the opinion that the language used by the workman is such that it
cannot be tolerated by any civilized society. Use of such abusive language against a
superior officer, that too not once but twice, in the presence of his subordinates
cannot be termed to be an indiscipline calling for lesser punishment in the absence of
any extenuating factor referred to herein above. (Para 14)
17. In Muriadih Colliery of Bharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union through
workmen , it was held that misbehaviour and violence justify the stringent punishment and the
punishment of dismissal was upheld observing that substituting the order of dismissal by another
minor punishment would be wholly disproportionate to the gravity of misconduct and cannot be
upheld.
18. In Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. 2005 (10) 9 JT 606,
the Apex Court has held that in view of change of economic policy of the country the earlier trend
has undergone a major change and the court seek to strike a balance between the interest of the
workmen as well as employer, It has further held as under:
This court has come a long way from its earlier view points. The recent trend in the
decisions of this Court seek to strike a balance between the earlier approach of the
industrial relation wherein only the interest of the workmen was sought to be
protected with the avowed object of fast industrial growth of the country. In several
decisions of this Court it has been noticed that how discipline at the
workplaces/industrial undertaking received a set back. In view of the change in
economic policy of the country, it may not now be proper to allow the employees to
break the discipline with impunity. (Para 30) The said view has been referred and
followed in the case of L.K. Verma v. H.M.T. Ltd. Judgment Today 2006 (2) SC 99,
wherein it has held as under:
So far as the contention as regard quantum of punishment of concerned, suffice it to
say that verbal abuse has been held to be sufficient for inflicting a punishment of
dismissal.(Para 22)
19. The reliance placed by learned Counsel for the petitioner in Ram Kishan's case (Supra) does not
lend any support to his case since a perusal thereof would show that the Apex Court has not held as
a matter of law that wherever the employee is guilty of abusing the senior authority, the punishment
of dismissal would be disproportionate to the gravity of the imputation. This is apparent from para
11 of the judgment, which is reproduced as under:
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It is next to be seen whether imposition of the punishment of dismissal from service
is proportionate to the gravity of the imputation. When abusive language is used by
anybody against a superior, it must be understood in the environment in which that
person is situated and the circumstances surrounding the event that led to the use of
abusive language. No strait-jacket formula could be evolved in adjudging whether the
abusive language in the given circumstances would warrant dismissal from service.
Each case has to be considered on its own facts. What was the nature of the abusive
language used by the appellant was not stated.
20. In the case in hand the petitioner has been charged of abusing the senior most officer at the
Depot, namely Senior Depot Incharge. The nature of abuses is also mentioned in the charge sheet.
The charge having been found proved, it cannot be said that the punishment of removal imposed
upon the petitioner is disproportionate to such extent that it shocks the conscious of the Court
warranting interference in extra ordinary equitable jurisdiction under Article 226 of the
Constitution.
21. In the result I do not find any merit in the writ petition and it is accordingly dismissed without
any order as to costs.
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