Court No. - 2
Case :- WRIT - A No. - 39480 of 2016
Petitioner :- Awadhesh Kumar Yadav
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Dinesh Kumar Verma,Ranjit Saxena
Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard Sri Ranjeet Saxena, learned counsel appearing for the petitioner and learned standing counsel for the respondent-State.
Learned standing counsel, at the outset, submits that the impugned order is appealable. Learned counsel appearing for the petitioner submits that the petitioner has retired on attaining the age of superannuation, therefore, the petition be heard and decided finally.
Petitioner, a Stenographer in the Forest Department, came to be served with a charge sheet dated 29.09.2015 while he was posted at Aligarh. The charge levelled against the petitioner is that during 4 November 2000 to 12 July 2011 while working as Stenographer at Etah Forest Division, petitioner without permission of the competent authority while renewing saw mill license he changed the place of establishment of the saw mills. Petitioner by filing reply to the charge sheet on 9 November 2015 denied the allegations. It was contended that the petitioner being a Stenographer was not competent to renew of the license, and the place of establishment of the saw mill was changed on the oral direction of the superior officers which was duly complied. The orders of the saw mills was duly signed by the competent authority, therefore, it was contended that the petitioner cannot be held responsible for the manipulation alleged that the petitioner benefited the saw mill owners. The Divisional Forest Officer/Enquiry Officer upon considering the reply and evidences in support of the charge submitted the enquiry report dated 22 June 2016, to the Forest Conservator, holding that the charge levelled against the petitioner was found proved. A show cause notice 27 June 2016 came to be issued to the petitioner along with copy of the enquiry report to submit his reply/objection. The petitioner filed his objection on 29 June 2016 reiterating the stand taken by the petitioner in reply to the charge sheet. The third respondent- Disciplinary Authority- Forest Conservator, Aligarh Circle, Aligarh by the impugned order dated 29 June 2016 affirmed the finding returned by the Enquiry Officer and imposed punishment withholding three increments permanently.
It is urged by the learned counsel for the petitioner that petitioner retired on attaining the age of superannuation in 2016. It is not the duty and function of a Stenographer to issue license or renew saw mill license. The license of saw mill owner was issued by the petitioner on oral instructions of the superior officer i.e. Divisional Forest Officer; the orders were duly signed by the Divisional Forest Officer, therefore, the allegations against the petitioner on the face of it is false and fabricated. It has been noted in the impugned order that the petitioner has admitted that the orders renewing the saw mill license was issued by the petitioner himself, though, place of establishment of the saw mill was changed on the oral direction of the superior officer. In this backdrop, it is urged that petitioner is not responsible for the misconduct.
Petitioner was charged for changing the place of establishment of saw mills to three license holders from the places mentioned in their respective license. It is alleged that petitioner on his own without any application from the saw mill owners and without obtaining orders from the competent authority on his own had issued the alleged license. The defence raised by the petitioner that this was done on the oral instructions of his superior and the authority had duly signed the license, hence, petitioner is not responsible for misconduct being a stenographer. He was bound to carryout the orders of his superior. The Enquiry Officer, upon considering the reply of the petitioner and the evidences led before him was not satisfied with the explanation. The Enquiry Officer was of the opinion that the places of establishment of saw mills as indicated in the license at the time of issue could not have been changed or altered without any application of the saw mill owners. Further, no oral direction as alleged by the petitioner can be given by any authority for altering the license. The issuance of license or alteration, therein, can be initiated only upon an application followed by written orders from the competent authority. The Enquiry Officer held the petitioner guilty of misconduct, accordingly, the charge stood proved. Petitioner was called upon by the Disciplinary Authority to submit objection/reply to the enquiry report to which the petitioner replied reiterating the stand taken before the Enquiry Officer. The Disciplinary Authority was not satisfied, accordingly, the findings returned by the Enquiry Officer was confirmed imposing penalty, withholding three increments permanently.
The scope of judicial review is confined to decision making process and not the decision. It is not the case of the petitioner that no opportunity of hearing was given during the disciplinary proceedings, nor it is his case that the reply or explanation furnished by him was not considered.
The scope of judicial review under Article 226 is very limited. The Supreme Court in the case of State of Madras vs. G. Sundaram1 explained the scope of judicial review:-
"7. It is well settled now that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. .............................
9..........High Court could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution."
In State Bank of India vs. Ramesh Dinkar Punde2, Supreme Court observed as follows:-
" We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the findings of the Inquiry 1 AIR 1965 SC 1103 2 (2006) 7 SCC 212 Officer, the Disciplinary Authority and the Appellate Authority by acting as a court of appeal and re- appreciating the evidence."
The Supreme Court in Nirmala J. Jhala vs. State of Gujarat and another3, on considering earlier precedents again reiterated the principle of judicial review in disciplinary proceedings and held that in departmental enquiry, the nature and standard of proof is not at par with the judicial and quasi criminal proceedings; the principle of preponderance is applicable and not the doctrine of proof beyond reasonable doubt.
The Court considered the parameter of the Court's power of judicial review of administrative action or decision. The relevant extract of Nirmala J. Jhala (supra) is as follows:-
".....................An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made.............. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge The 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. This apart, even when some defect is found in the decision- making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
The Supreme Court in S.R. Tewari vs. Union of India and another4, observed as follows:-
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly 3 (2013) 4 SCC 301 4 [(2013) 6 SCC 602] unreliable evidence and no reasonable person would act upon it, the order would be perverse."
Having due regard to the facts of the instant case, the learned counsel failed to point out any illegality, infirmity or perversity in the impugned order.
It is clarified that no other point or ground was pressed by learned counsel for the petitioner.
The writ petition is dismissed. No cost.
Order Date :- 30.7.2019 Mukesh Kr.