The petitioner was appointed Conductor in U.P State Roadways Transport Corporation (U.P.S.R.T.C) in 1993 on compassionate ground, was suspended on 31.5.2006 for cutting and overwriting way bills, which on being sent for examination to the Forensic Science Laboratory, it was reported that some chemical was used to tamper the way bills. Accordingly, the petitioner was served a charge sheet on 23.4.2007 for cutting, overwriting and tampering the way bills, thus causing loss to the respondent corporation.
Petitioner submitted reply on 30.6.2007 denying the allegations. The inquiry officer on conducing the inquiry submitted the inquiry report dated nil, to which petitioner submitted a reply on 23.7.2009. Disciplinary authority considering the reply and the inquiry report passed the impugned order on 30.09.2009 removing the petitioner from service.
Aggrieved, petitioner preferred an appeal, to the next higher authority, which was dismissed on 22.12.2009 and against the appellate order, the petitioner preferred revision which was dismissed by the order dated 10.3.2011.
The revisional order dated 10.3.2011, the appellate order dated 30.9.2009 and the order dated 22.12.2009 passed by the disciplinary authority is being assailed by the petitioner.
The submission of the learned counsel for the petitioner is that the petitioner denied the allegations in the charge sheet, stated that he had not tampered or used chemical on the way bills, no cutting or overwriting was reported by the checking clerk Raj Karan, further, the Inquiry Officer nor the Disciplinary Authority have recorded any finding regarding the misappropriation/loss caused to the Corporation.
It is alleged that coemployee, namely Raj Karan Singh, the checking clerk was also charge sheeted along with the petitioner for conspiracy, for causing financial loss to the corporation, the charges against Raj Karan Singh was proved but while imposing penalty, the petitioner was discriminated against, Raj Karan Singh was reinstated in service by the order dated 14.5.2008 whereas the petitioner was dismissed from service. Though the checking clerk, Raj Karan Singh was previously punished on five occasions and two departmental proceedings were still pending against him.
Per contra, Shri Ramanuj Pandey, learned counsel appearing on behalf of the respondent Corporation submits that the service conditions of the petitioner are governed under the Uttar Pradesh State Road Transport Corporation Employees (other than officers) Service Regulations, 1981. The procedure for imposition of major penalty as prescribed under the regulations was fully followed. The petitioner was given ample opportunity to defend, it is not in dispute that the way bills produced by the petitioner was found tampered, chemicals was used to deface the way bills which was duly affirmed by the Forensic Laboratory. Thus, the punishment awarded to the petitioner is commensurate to his guilt.
Rival submissions fall for consideration:
The facts between the parties are not in dispute. The petitioner was a conductor, way bills that was submitted to the dealing clerk Raj Karan Singh was found tampered, when checked by the Senior Station Incharge Khurja by inspecting 10% of the total way bills randomly.
Inquiry was conducted as per the provisions of 1981 Regulations, the allegations against the petitioner was proved by the expert evidence i.e the report of the Forensic Laboratory that certain chemicals was used on the way bills.
Considering the past conduct of the petitioner that the petitioner was earlier punished on ten occasions, punishment of removal was imposed, which was duly affirmed by the appellate authority and revisional authority.
The charge/allegations against the petitioner briefly is that the way bills used by the petitioner was re-examined by the Senior Station Incharge, Khurja and was found that the way bills used by the petitioner of different numbers in 2006 for the Bus No.9038 on Kanpur Road, on examination, it was found that some chemical was used for tampering the way bills and different inks was used on the tickets as well as the way bills. The petitioner defaced the way bills on Kannauj to Delhi route by using chemical and made it Kannauj to Gursahaiganj, thus, tampering the way bills causing loss to the Corporation.
After receiving the report of the Station Incharge, the tickets and way bills were sent to the Forensic Lab, the infirmities of tampering was reported which is detailed in the charge sheet. In the reply, petitioner, denied that the petitioner did not use of any chemical to tamper the way bills. It was further submitted that the petitioner used pens of different inks, that would not mean that the petitioner tampered the way bills and the corresponding tickets, if the petitioner tampered the way bills, the checking clerk would have reported the matter. The way bills was accepted by the checking clerk, after verifying the correctness of the way bills, since, there is no adverse report by the checking clerk, it cannot be said that way bills was tampered prior to the deposit with the checking clerk.
The Inquiry Officer considered the reply, submitted by the petitioner, as well as, the statement of the Reporting Officer taken on 16.10.2007, affirming the content the report submitted by him earlier, also examined the witnesses, who affirmed that carbon and different pens was used in tampering the way bills and the tickets. The statement of the petitioner was taken. The petitioner refused to produce any defence witness. The Inquiry Officer considering the evidences available on record, as well as, the statement of the officials, the report of the Forensic Lab held the allegation against the petitioner proved.
The petitioner in reply to the show cause notice stated that the Forensic Lab has not specified the chemical used on the tickets and on the way bills, further the cuttings on the way bills and tickets is not deliberate but for the reason of the moving bus.
The Disciplinary Authority after considering the Inquiry Report, reply to the show cause notice by the petitioner affirmed the findings and imposed major penalty.
The contention of the learned counsel for the petitioner that the burden of proving the allegation is upon the department but the department failed to prove the allegations and shifted the burden upon the petitioner to prove his innocence. The Inquiry Officer examined the prosecution witness, official submitting report of tampering and use of chemical, the petitioner cross examined the witness who reiterated and reaffirmed the report, the statement of official witness was established by the report of the Forensic Lab. It was proved that the way bills and tickets was tampered by using some chemical. The petitioner cannot be absolved of his guilt by merely saying that the receiving clerk, while receiving the way bills/tickets did not point out or report that the way bills was tampered.
The scope of judicial review under Article 226 is very limited.
The Supreme Court in the case of State of Madras vs. G. Sundaram AIR 1965 SC 1103 had 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. It was so held in State of Orissa v. Murlidhar, AIR 1963 SC 404, where it was said at p. 408:
"Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself, and that, in our opinion, is not reasonable or legitimate."
8.Similar view was emphatically expressed in State of Andhra Pradesh v. Sree Rama Rao, AIR1968 SC 1728, wherein it was said at p. 1726:
"The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. But the departmental authorities are, if the enquiry is otherwise properly held the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
9. It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It 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. This view was reiterated in Union of India v. H. C. Goel,."
In State Bank of India vs. Ramesh Dinkar Punde (2006) 7 SCC 212 Hon'ble Supreme Court has held that:-
"13. 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 Officer, the Disciplinary Authority and the Appellate Authority by acting as a court of appeal and re- appreciating the evidence.
In the case of T.N.C.S. Corpn. Ltd. and Ors. (appellants) v. K. Meerabai (respondent) (2006) 2 SCC 255, the plea of no loss or quantum of loss was rejected by the Court. It was pointed out at page SCC 267 para 29 as under:
"29. Mr. Francis also submitted that a sum of Rs. 34,436.85 being 5% of the total loss of Rs. 6,88,735/- is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis- appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or mis-placed sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority."
The Supreme Court recently in Nirmala J. Jhala vs. State of Gujarat and another (2013) 4 SCC 301) after considering earlier judgements has again reiterated the principle of judicial review in disciplinary proceedings and held that in the departmental enquiry, the nature and standard of proof is not at par with the quasi judicial and quasi criminal proceedings; the principle of preponderance is applicable and not the doctrine of proof beyond reasonable doubt.
The Apex Court further considered the parameter of the Court's power of judicial review of administrative action or decision. The relevant portion of the judgment of Nirmala J. Jhala (supra) is as follows:-
"The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. 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. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. 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. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. 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 Court does not finds any infirmity or error in holding the charges proved against the petitioner. The petitioner was given full opportunity, witnesses were cross examined by the petitioner, as well as, examined by the Inquiry Officer, thereafter, based on evidences, the conclusion was drawn, which appears to be reasonable and appropriate.
As regards the second submission regarding discrimination in awarding penalty to two similarly situated persons, imposing major penalty upon the petitioner but reinstating the dealing clerk, with minor penalty, if at all was discriminatory.
The petitioner has brought on record the order dated 23.7.2008, passed by the Assistant Regional Manager, U.P.S.R.T.C in respect of Raj Karan Singh, the order states that on report dated 30.5.2006 the Senior Station Incharge, Khurja, Raj Karan Singh was prima facie found guilty and was placed under suspension on 31.5.2006, thereafter, charge sheeted on 13.6.2006.
The allegation that Raj Karan Singh did not report regarding the tampered way bills and tickets submitted by the petitioner, used on Khurja-Delhi Marg route on 1.5.2006, 6.5.2006, 18.5.2006, 22.5.2006, thus, Raj Karan Singh conspired with the petitioner in aiding and abetting in acts of the petitioner, hence, was responsible for the loss caused to the Corporation. Raj Karan Singh was issued show cause notice along with the inquiry report and in reply it was stated, at the time of deposit of the way bills and tickets by the petitioner, there was no chemical used nor there was any tampering, therefore, he did not report, further, the Senior Station Incharge Khurja, merely on doubt, during cross examination, admitted that the way bills and tickets was not sent to any Forensic Lab for examination, further witness Suraj Ram Sharma stated that there was no fault on the part of the petitioner.
The Disciplinary Authority after perusing the report of the Senior Station Incharge Khurja observed that it was no where stated as to the nature of tampering caused by the conductor and how much loss occurred to the Corporation and it was also not mentioned as to which entry was deleted or incorporated, during the cross examination the Station Incharge Khurja admitted that since the inks on the way bills was dim, which created doubt that it was tampered. Further way bills available on record, no comments have been endorsed. However, on some way bills nos. 55210, 56026, 56206 to 22 cutting is illegible which proves the irregularity on the part of Raj Karan Singh. However, considering his length of service, the proposed penalty of dismissal or removal was diluted, and minor penalty withholding one annual increment, without cumulative effect, was imposed and for loss, equivalent to one annual pay was ordered to be recovered from Raj Karan Singh.
Where an employee concerned and a co-delinquent are equally placed, imposing different penalty would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution. The Supreme Court in Lucknow Kshetriya Gramin Bank versus Rajendra Singh (2013) 12 SCC 372 held that the principle of law is that it is the disciplinary authority, or the appellate authority which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee.
If there is a complete parity in two sets of cases, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution. If there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority.
Even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employees accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted to the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees.
The Supreme Court relying upon Rajendra Yadav versus State of M.P (2013) 3 SCC 73 and Obettee (P) Ltd. Versus Mohd.Shafiq Khan (2005) 8 SCC 46 laid down the following principles in Rajendra Singh(Supra) paragraphs 19 & 20 as follows:
19. The principles discussed above can be summed up and summarized as follows:
19.1 When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
19.2 The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
19.3 Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;
19.4 Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5 The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.
20. It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was co- delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries.
In the facts and circumstances of the case, it is not denied that both the employees the petitioner and Raj Karan Singh were charged for the same incident and for the same allegations were placed under suspension on 31.5.2006, relying upon the same report submitted by the Senior Station Incharge, Khurja on 30.5.2006, the disciplinary authority in proceedings, held both the petitioner and Raj Karan Singh guilty of tampering the way bills and proposed major penalty of removal from service. However, the disciplinary authority in respect of the petitioner imposed major penalty of removal whereas considering the length of service of Raj Karan Singh was imposed minor penalty.
In my view, the penalty imposed upon the petitioner and the other co delinquent viz. Raj Karan Singh for the same incident and charges based upon the same material is discriminatory. The past conduct of the employees are also similar.
The impugned orders is set aside, the matter is remanded to the respondent no. 1 U.P State Roadways Transport Corporation, Lucknow with a direction to take a fresh decision on the quantum punishment imposed upon the petitioner vis-a-vis Raj Karan Singh, similarly situated co-delinquent.
Fresh order shall be passed within six weeks from the date of the filing of the certified copy of this order.
Subject to above, the writ petition is allowed.
Order Date :- 23.12.2014 IB