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Judgment
M.M. Sundresh, J.—The Writ Petition has been filed by the Petitioner, challenging the dismissal of the I.D. No. 165 of 1992 on the file of
the first Respondent confirming the order of dismissal passed by the second Respondent.
Facts in brief:
The Petitioner herein was working as a Conductor with the second Respondent. He had been working in the said capacity from 1975 onwards.
An order of suspension was passed against the Petitioner by the second Respondent on 12.03.1992. Thereafter, a charge memo was issued to the
Petitioner by the second Respondent on 30.03.1992 on the ground that, the Petitioner had misappropriated the money due to the second
Respondent by stealing ticket books and invoices belonging to the other buses and used them in the bus in which he was plying. The said charges
are pertaining to the period between November 1991 to February 1992. It is also stated in the charge memo that, during the enquiry it came to the
knowledge that excess diesel has been used in a particular bus and while examining the driver, he informed that due to heavy passengers intake and
higher income, the said expenses had occurred.
Thereafter, the income particulars of the route bus was checked, by which it was found that the collection was lesser than the other buses which
were plying in the very same route. When this was pointed out to the driver, he was surprised and informed the authorities that he was given excess
batta of Rs. 28/-, since the income had been very high. In view of the said statement, the Petitioner was asked to report before the Branch
Manager. However, he reported only on the next date and during enquiry it was found that, the collection made by him on that date was lesser
than that of the other buses plying in the same route. During further enquiry it was found that, the collection was lesser for a quite some time in the
bus in which the Petitioner was working as a Conductor.
When an explanation was asked from the Petitioner, he has stated that, the driver was driving the vehicle very slowly and as a result the
passengers were not willing to board the bus as more time is taken to reach the destination. Further enquiry was made based upon the records, in
which it was found out that there were discrepancies in the number of passengers boarded. Thereafter, the Petitioner was enquired in his house on
11.03.1992 during which enquiry he accepted and admitted that, he has stolen the ticket books and invoices of the buses which were not running,
and used it in the bus in which he was working. A statement was also given by him to that extent. He was further asked to demonstrate his action
and accordingly, he along with other officials went to the Office and produced the stolen ticket books and invoices covered in a cloth from the
rack. He again gave another statement regarding the recovery made from him in the presence of the witnesses. Therefore, under those
circumstances, the charge memo was given towards the theft of the invoices and bus tickets and for committing loss to the Corporation by the sale
of such tickets. The said charge memo was issued without prejudice to the filing of an additional charge memo for the period in which the
investigation was yet to be done.
An explanation was given by the Petitioner on 06.04.1992 under Ex.M-12. In the said explanation, he has stated that the statements have been
obtained by force and coercion at his residence. He has further stated that it is impossible to steal the ticket books and invoices of the other buses
without the knowledge of the concerned authorities. Not satisfying with the statement given by the Petitioner, an enquiry was ordered and
conducted by appointing an Enquiry Officer.
Before the Enquiry Officer, three witnesses have been examined on the side of the second Respondent. The Petitioner has examined himself on
his side. The Enquiry Officer has also considered the documents produced by the Management. After the conclusion of the enquiry, a report was
filed by the Enquiry Officer under Ex.M.14 dated 22.06.1992 holding that, all the charges levelled against the Petitioner were proved. In pursuant
to the Enquiry Officer''s report, the Petitioner was given a show cause notice dated 13.07.1992 under Ex.M.16. After considering the reply of the
Petitioner, an order of dismissal was passed under Ex.M-19 dated 18.08.1992. A complaint was also given against the Petitioner before the
jurisdictional Police Station but the said complaint was closed, as the materials were found insufficient.
In the meanwhile, the Petitioner filed a Writ Petition in W.P. No. 12095 of 1992 on the ground that, in view of the tendency of the criminal case,
the departmental proceedings shall not be allowed to proceed with. The Writ Petition as well as the Writ Appeal filed were dismissed against the
Petitioner. The Petitioner filed another Writ Petition in W.P. No. 15949 of 1994, challenging the order dated 19.07.1994, by which the Industrial
Tribunal has given approval for the order of dismissal under 33(2)(b) of the Industrial Disputes Act, 1947. In the said Writ Petition, it was
submitted by the Petitioner that, the criminal case filed against the Petitioner was closed, the past records of the Petitioner were not perused by the
disciplinary authority and the penalty of dismissal imposed on the Petitioner was grossly disproportionate to the charges alleged against him. In the
meanwhile, proceedings have been initiated against the Petitioner for some other period based upon the very same allegation. However, in view of
the collection of the enquiry, which resulted in the punishment, the subsequent proceedings have been dropped as unnecessary.
The learned single Judge of this Court was pleased to hold that Ex.M-2 has been signed by the Petitioner which is a statement given by him
accepting his guilt. It was further observed that the contention of the Petitioner that the signature was obtained by force is not borne out by records
and no complaint has been made against it. Another finding was given that the ticket books and invoices were recovered from the locker of the
second Respondent. A reference was also made to Ex.M-3 being the invoices of the buses. The learned single Judge was pleased to hold that, it
cannot be said that the signature of the Petitioner was obtained on a blank paper and the domestic enquiry was conducted properly. The learned
single Judge was pleased to dismiss the Writ Petition by further observing that the Petitioner has not challenged the order of dismissal by raising a
dispute.
After the dismissal of the Writ Petition in W.P. No. 15949 of 1994, the Petitioner raised a dispute in I.D. No. 165 of 1997 before the first
Respondent. The learned Counsel appearing for the Petitioner made submissions before the Tribunal primarily on the ground that, there was a
violation of the standing order in Section 17(4)(a), inasmuch as the reasons for the suspension has not been granted within a period of one week,
as the same was given only on 30.03.1992 by way of a charge memo. A further submission was made on the ground that the charges leveled are
vague and it has not been specifically stated in the charge memo about the date in which the amount has been misappropriated. The Labour Court
on a appreciation of the evidence available on record, both oral and documentary was pleased to dismiss the dispute mainly basing reliance upon
Exs.M-1 and M-2 apart from the oral evidence.
The Labour Court further held that, the enquiry has been conducted in a free and fair manner as found by this Court and considering the
charges leveled against the Petitioner, the order of dismissal cannot be interfered with. On the question of vagueness of charges, the Labour Court
found that it can not be said that the Petitioner has not understood the charges and the mere delay of few days in issuing the charge memo would
not vitiate the proceedings. Challenging the said order passed by the Labour Court, the Petitioner has come forward to file the present Writ
Petition.
Submissions of the Petitioner:
Shri. V. Raghavachari, learned Counsel appearing for the Petitioner submitted that, the findings of the Labour Court are perverse and not
supported by materials. The Ticket Checking Inspectors who checked the tickets on the relevant dates have not been examined. Exs.M-1 and M-
2 have been obtained by force and coercion. Ws.1 to 3 have not seen the statement given by the Petitioner. No enquiry has been initiated against
the concerned officials from whose custody the tickets and invoices were said to be stolen by the Petitioner. The criminal case filed against the
Petitioner has been closed in his favour. Exs.M-3 and M-6 to 8 have not been considered properly. The Enquiry Officer has put the entire onus on
the Petitioner wrongly. The Labour Court has not considered the evidence of the Petitioner properly. The reliance made upon by the judgment of
this Court by the Labour Court is bad in law.
The learned Counsel further submitted that when the departmental enquiry is conducted in a manner contrary to law, an order of dismissal
passed as a consequent thereon will have to be set aside. When there is an allegation of fraud and misappropriation, then it has been proved by
acceptable evidence. When a finding arrived at in a departmental proceedings is totally against fair play and the basic principle of law, then this
Court will have to exercise the power under Article 226 of the Constitution of India. The order of punishment has been imposed even before the
conclusion of the enquiry. In support of his submissions, the learned Counsel has made reliance upon the following judgments:
Amulya Ratan Mukherjee Vs. Deputy Chief Mechanical Engineer, Eastern Rly. and Others,
Sawai Singh Vs. State of Rajasthan,
G. Chandra Kanth v. Guntur DT. Milk Producers Union Ltd. and Ors. 1995 High Court, Andhra Pradesh
Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another,
Vincent, D. v. The Director of Government Examinations 1987 WRIT L.R. 69
P.B.Rocho v. Union of India and Ors. 1984 KLT 590
T.Jayabala Nvs. Inspector General of Police (Law and Order), Deputy Inspector General FO Police and Superintendent of Police [W.P. No.
34189 of 2006 dated 12.01.2010]
Submissions of the second Respondent:
13.M/s. Kala Ramesh, learned Counsel appearing for the second Respondent submitted that, decisions have been made by the Respondents
based upon the materials available on record. Such a decision based upon factual findings shall not be interfered with by this Court by acting as an
appellate authority. The Petitioner having given voluntary statements under Exs.M-1 and 2 cannot contend that the charges leveled against him are
not proved. The Petitioner has signed Exs.M-1 and 2. The charges leveled against the Petitioner are very serious. Ex.M-3 clearly proves the
nature of offences committed by the Petitioner. The report of the Enquiry Officer itself makes it clear that, there is negligence on the part of the
other officials. Action has been taken by the other officials also. In view of the punishment awarded in the first enquiry, the subsequent enquiries
have not been proceeded with. The Petitioner has wrongly submitted that even before the enquiry the proceedings have been concluded.
The learned Counsel further submitted that, the Petitioner has given contrary statement regarding the execution of Exs.M-1 and 2 which are the
statements given by him. The Petitioner has not spelt out the reasons for obtaining the statements by force. No complaints have been made against
the said officers to higher authorities. The learned Counsel has made reliance upon the judgments of the Honourable Apex Court in Govt. of A.P.
and Others Vs. Mohd. Narsullah Khan, , Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva Sankar Prasad, , U.P. State Road Transport
Corporation Vs. Suresh Chand Sharma, and submitted that, in a case where the domestic enquiry has been conducted in a free and fair manner,
the Labour Court has analysed the facts the High Court shall not exercise its jurisdiction under Article 226 of the Constitution of India. Therefore,
the learned Counsel submitted that the Writ Petition will have to be dismissed.
Findings:
This Court is quite aware of the jurisdiction over disciplinary proceedings conducted by a competent authority which has been appreciated by
the Labour Court. However, in view of the elaborate submissions made on facts by the learned Counsel appearing for the Petitioner, this Court is
constrained to go into the same.
Allegation against the Petitioner is that he has stolen the ticket books and invoices of the buses which were not running and sold the same to the
passengers of the bus in which he was working as a Conductor and committed the misconduct. The charge memo has been filed based upon the
investigation done by the authorities. During the enquiry made with the driver it was found that, he was having excess amount as batta and the
collection showed lesser amount. It also revealed that the collection in the bus in which the Petitioner was working, had been low for quite some
time as against the other buses plying in the very same route.
The Petitioner was working as a Conductor on 19.09.1991 in the route between Papanasam to Thiruchendur. Checking was made by two
Inspectors at Seranmadevi Bus stop. The Petitioner has signed the checking report and invoices. The details of the checking was also noted in the
invoices in E. No. 20145. The Petitioner was returning from Thiruchendur to Papanasam, the vehicle was checked at Srivaikuntam. However, the
number of passengers who travelled between Thiruchendur to Papanasam was about 33 + 2 has not been shown in the same invoice (E. No.
20145). Therefore, a finding has been given on the ground that the Petitioner has used the correct ticket and invoice while travelling from
Papanasam to Thiruchendur and after the checkup at Sermadevi, he has suppressed the above said invoice and ticket book and used the stolen
ones for the return from Thiruchendur to Papanasam. Thereafter at the time of handing over the remaining tickets and invoices, he took up the
actual invoices and filled it up with the return passengers by deflating the income and reducing the number of passengers who travelled from
Thiruchendur to Papanasam. The said finding was given based upon the records available with the Checking Inspectors in which the Petitioner has
signed. A similar incidence was also found on 30.05.1991.
The Enquiry Officer found that there is no explanation from the Petitioner for not getting the signature of the Checking Inspector while traveling
from one place to another and also returning from the other place to the starting place. The Enquiry Officer also found that there are discrepancies
in the records of the Checking Inspectors and the one produced by the Petitioner in which the signature of all the Checking Inspectors were not
found. The discrepancies are pertaining to the number of passengers as the invoices produced by the Petitioner showed lesser number of
passengers. It was also pointed out to the Petitioner during enquiry.
Therefore from the available records, the Enquiry Officer found that the Petitioner has committed the misconduct. The Petitioner in his
explanation has not stated anything about Ex.B-3. The learned Counsel for the Petitioner Shri. V. Raghavachari submitted that Ex.B-3 only
supports the case of the Petitioner. This Court is afraid that such a contention has never been raised in the Labour Court and also before the
departmental proceedings. Further as seen from Ex.B-3 the very case of the second Respondent is that the Petitioner has misused the records and
made additions, as the invoice did not contain the signatures of all the Checking Inspectors. The further finding is that it is the Petitioner who has
filled it up to suit his convenience by suppressing the tickets and invoices and replaced them with others and thereafter made wrong entries. Hence,
such findings, which are borne out by records and supported by evidence available on record, do not warrant any interference.
In so far as Exs.M-1 and 2 are concerned, it is seen that the Petitioner himself has made contrary statement. In his explanation given on
06.04.1992 under Ex.M-12 he has stated that the authorities came to his house and by force and coercion they obtained a signature and asked
him to write what they wanted, in two white papers. In the subsequent representation dated 22.06.1992 under Ex.M-14, the Petitioner has stated
that they obtained another statement in the Office. Therefore, from the above said submissions, it is very clear that the Petitioner has not explained
his conduct in writing under Exs.M-1 and 2 properly. The contention of the learned Counsel for the Petitioner that the eyewitness who has signed
the above said documents being not seen actually also cannot be countenanced. Those witnesses have been present when the Petitioner has signed
Ex.M-1 and M-2. They have signed the same in the presence of the Petitioner. It is settled position of law that strict rules of evidence are not
required in a departmental proceedings. The Petitioner has not made any allegations either before the departmental proceedings or thereafter, that
the Officers of the second Respondent are inimically disposed of against him. He has not explained the reason why the officers have forced him to
give the statements. Further no complaints have been made against the Petitioner to the higher authorities about the same. On the contrary, the
evidence of record would show that the Petitioner during the investigation in his residence has admitted his guilt and demonstrated the same by
going over to the Office and handing over the remaining unsold tickets and invoices which were meant for misused.
The Petitioner has filed two Writ Petitions on the earlier occasions. In the Writ Petition filed in W.P. No. 15949 of 1994, a finding was given
by the learned single Judge that the contention of the Petitioner regarding the statements having been obtained by force cannot be accepted. The
learned single Judge has also observed that the Petitioner has not approached the Labour Court challenging the order of dismissal. It is only
thereafter the Petitioner has approached the Labour Court. Therefore, the said findings have been given by the learned single Judge as the
Petitioner himself has warranted the same by filing the earlier Writ Petition. That is a reason why the Labour Court has also made reliance upon the
same. It is further to the seen that a contention was specifically raised in the earlier Writ Petition by the Petitioner stating that punishment imposed is
disproportionate to the charges which were also rejected by the learned single Judge.
It is seen that primarily only three submissions were made by the learned Counsel for the Petitioner before the Labour Court. The said
submissions are pertaining to the vagueness in the charges, delay in issuing the charge memo and non-monitoring of the date for the theft committed
by the Petitioner. The Labour Court has considered the above said submissions and found that there is nothing wrong in the order of dismissal
passed by the second Respondent in the delay of issuing the charge memo. The Labour Court also found that the charges are not vague and the
Petitioner was in a position to put forth his case as he understood the charges properly. A further finding was given that there is no necessity to give
any specific date of alleged misconduct and in any case the same would not vitiate the proceedings. Apart from that the Labour Court has gone
into the merits of the case and appreciated the oral and documentary evidence available on record for coming to the conclusion. Hence, this Court
does not find the order of the Labour Court needs any interference.
It is seen from the records that two proceedings have been initiated against the Petitioner. Even a perusal of the charge memo would indicate
that an additional charge memo would be given in view of the on going investigation. However, the second proceeding was not continued, since an
order of dismissal was passed already. The Petitioner has mixed both the enquiries pertaining to the two charge memos into one. In so far as the
charge memo which is the subject matter of the Writ Petition is concerned, the charges have been framed, enquiry conducted, a copy of the same
was given to the Petitioner, a show cause notice was issued on the charges framed and thereafter final orders have been passed. Therefore, this
Court does not find any merit in the submissions of the learned Counsel appearing for the Petitioner that even before the enquiry is completed a
final order is passed.
Violation of Principles of Natural Justice:
In the present case on hand, there is no violation of principles of natural justice and no prejudice is shown even if there is a violation. In this
connection it is useful to refer the pronouncement of the Honourable Apex Court in State Bank of Patiala and others Vs. S.K. Sharma, , wherein it
is held thus:
33.(3)... Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except in cases
falling under-''no notice'', ''no opportunity'' and ''no hearing'' categories, the complaint of violation of procedural provision should be examined from
the point of view of prejudice viz. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and
effectively.
Scope of Judicial Review:
It is trite law that a judicial review of this Court over a decision rendered by the Industrial Tribunal which was asked to adjudicate upon the
validity of the departmental proceedings is very limited. Until and unless the Labour Court committed a gross error, which is manifest and apparent,
this Court cannot act as an appellate authority and re-appreciate the evidence. In this case, not only the Labour Court but also the second
Respondent in the departmental enquiry have given factual findings based upon the materials available on record. There is nothing to demonstrate
that the findings rendered by the Respondents are perverse or based upon no evidence.
The Honourable Apex Court in Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, considering the scope of judicial review under Article
226 of the constitution of India has held as follows:
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 reappreciating the
evidence as an appellate authority.
We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In Union of India (UOI) Vs. Parma Nanda, , K.
Jagannatha Shetty, J., speaking for the bench, observed at SCC p.189, para 27 as under:
We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with
an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitray or
utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority
either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the
rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the
jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power
to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to
concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on
evidence even if some if it is found to be irrelevant or extraneous to the matter.
Again, the same principle has been reiterated by this Court in B.C. Chaturvedi Vs. Union of India and others, . K. Ramaswamy, J., speaking
for the Court, observed at SCC p.759, 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 or 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 there from, 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 the case.
As already said, in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with
the mode of procedure prescribed by the rules or regulations.
Similarly in Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva Sankar Prasad, has held as follows:
It is also not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at the domestic tribunal. In the
instant case, the opinion arrived at by the Corporation was rightly accepted by the Tribunal but not by the Court. We, therefore, hold that the
order of reinstatement passed by the Single Judge and the Division bench of the High Court is contrary to the law on the basis of a catena of
decisions of this Court. In such cases, there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum
of punishment of removal, which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article
226 of the Constitution only when its finds that the punishment imposed is shockingly disproportionate to the charges proved.
In a recent pronouncement rendered in U.P. State Road Transport Corporation Vs. Suresh Chand Sharma, it has been held hereunder:
In State of Haryana and Another Vs. Rattan Singh, this Court has categorically held that in a domestic enquiry, complicated principles and
procedure laid down in the Code of Civil Procedure, 1908 and the Evidence Act, 1872 do not apply. The only right of a delinquent employee is
that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges.
However, the Court rejected the contention that the enquiry report stood vitiated for not recording the statements of the passengers who were
found traveling without ticket. The Court held as under: (SCC pp.493-94, para 5)
5.... We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-
evaluation of the evidence on the strength of co-conductor''s testimony is a matter not for the court but for the Administrative Tribunal. In
conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal.
In view of the above, the reasoning so given by the High Court cannot be sustained in the eye of the law.
Recently a Division Bench of this Court in Dr. R. Padmavathy v. The Secretary to Government, State of Tamil Nadu 2011 (2) CTC 129
considering the scope of judicial review has held in the following manner:
The scope of judicial review of the administrative decision particularly the disciplinary inquiry and the order imposing punishment by the authority
has been discussed by the Supreme Court in catena of decisions. Normally Courts should not interfere with the administrative decision unless it
was illogical and suffers from procedural impropriety or is shocking to the conscious of the Courts. When the administrative action is challenged as
arbitrary, the question will be whether the administrative order is rationale or reasonable and the test would be Wednesbury''s Test. In the case of
Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar AIR 2003 SCW 944, the Supreme Court observed:
The common thread running through in all these decisions is that the Court should not interfere with the administrator''s decision unless it was
illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral
standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the
administrator open to him and the Court should not substitute is decision to 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 the 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.
In the case of Tilak Chand Magatram Obhan Vs. Kamala Prasad Shukla and Others, , strong and hostile bias was alleged and the Supreme
Court while dealing with the question of bias observed as under:
There is, however, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry
being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire Enquiry proceedings are rendered
void, the Appellate Authority cannot repair the damage done to the enquiry. Where one of the members of the Enquiry Committee has a strong
hatred or bias against the delinquent of which the other members know not or the said member is in a position to influence the decision-making, the
entire record of the enquiry will be slanted and any independent decision taken by the Appellate Authority on such tainted record cannot undo the
damage done. Besides where a delinquent is asked to appear before a Committee of which one member is deeply hostile towards him, the
delinquent would be greatly handicapped in conducting his defence as he would be inhibited by the atmosphere prevailing in the enquiry room.
Justice must not only be done but must also appear to be done. Would it so appear to the delinquent if one of the members of the Enquiry
Committee has a strong bias against him? And we repeat the bias must be strong and hostile and not a mere allegation of bias of a superior having
rebuked him in the past or the like.
In the case of Union of India (UOI) Vs. Sardar Bahadur, , the Supreme Court observed: (SCC page 623, para. 15)
A Disciplinary proceeding is not a Criminal trial. The standard proof required is that of preponderance of probability and not proof beyond
reasonable doubt. If the inference that lender was a person likely to have official dealings with the Respondent was one which a reasonable person
would draw from the proved facts of the case, the High Court cannot sit as a Court of Appeal over a decision based on it. The Letters Patent
Bench had the same power of dealing with all questions, either of fact or of law arising in the Appeal, as the Single Judge of the High Court. If the
enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot
be characterized as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts.
The Supreme Court reiterated its earlier view in the case of Union of India (UOI) Vs. Parma Nanda, and observed: (SCC page 189, para 27)
We must unequivocally state that the jurisdiction of the Tribunal to interfere with the Disciplinary matters or punishment cannot be equated with an
Appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or Competent Authority where they are not arbitrary or
utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the Competent Authority
either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the
rules and in accordance with Principles of Natural Justice what punishment would meet the ends of justice is a matter exclusively within the
jurisdiction of the Competent Authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the
Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the Competent
Authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
Therefore, on a consideration of the ratio laid down by the judgments referred supra, coupled with the fact that the enquiry having been
conducted in a free and fair manner and the Respondents 1 and 2 having taken into consideration of the material facts available on record, this
Court does not find any reason to exercise the power of judicial review in the present case on hand.
The Petitioner was working as a Conductor. His duty is to collect the money and hand over the same to the second Respondent. He holds the
money in trust of the Respondents. In such an event, this Court cannot show any leniency when the charges of misconduct towards the
misappropriation of money are proved. In this connection, it is useful to refer the judgment of the Honourable Apex Court in Regional Manager,
U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, wherein it has been held as follows:
In Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, , the Supreme Court observed: (SCC page 614, para 10)
If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal
with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in
financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.
32.A similar view was also expressed by the Honourable Apex Court in U.P. State Road Transport Corporation Vs. Suresh Chand Sharma, it has
been held hereunder:
We do not find any force in the submissions made by Dr. J.N. Dubey, learned senior Counsel for the employee that for embezzlement of such
a petty amount, punishment of dismissal could not be justified for the reason that it is not the amount embezzled by a delinquent employee but the
mens rea to misappropriate the public money.
In Municipal Committee, Bahadurgarh Vs. Krishan Behari and others, this Court held as under: (SCC p. 715, para 4)
... In a case of such nature-indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in
such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of
misappropriation that is relevant....
Similar view has been reiterated by this Court in Ruston and Hornsby (I) Ltd. Vs. T.B. Kadam, , U.P. SRTC v. Basudeo Chaudhary, (1997) 11
SCC 370 , Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha
Etc., , Karnataka SRTC v. B.S. Hullikatti (2001) 2 SCC 574 and Regional Manager, RSRTC v. Ghanshyam v. Sharma, (2002) 1 LLJ 234 SC .
In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, and U.P. State Road Transport Corporation Vs. Vinod Kumar, this Court held that
the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/ misappropriation, the only
punishment is dismissal.
This, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to
the proved delinquency of the employee, is not worth acceptance.
Hence in the light of the discussions made above both on facts and law, this Court does not find any ground to interfere with the order of
dismissal passed by the first Respondent. Accordingly, the Writ Petition is dismissed. No costs.