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 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 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 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 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:
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.