JUDGMENT
Roshan Dalvi, J.
1. The petitioner has challenged the action of the respondents in removing the petitioner from service.
2. The petitioner served as a Booking Clerk for issuing daily tickets with respondent No. 1. A departmental enquiry came to be held against the petitioner with respect to certain manipulations in the records and overcharging a decoy passenger by Rs. 25/- whilst he served as a Booking Clerk and issued the ticket to the passenger. The Inquiry Officer recommended the punishment of removal from service upon one of the two charges being proved against the petitioner. That was the charge in respect of the overcharging of the decoy passenger by Rs. 25/-. The Disciplinary Authority accepted the recommendation and removed the petitioner from service. Appeal therefrom failed on 19.6.2002. A further order was passed in revision by the Revisional Authority on 10.10.2002. An Original Application was filed before the Central Administrative Tribunal (CAT), which, by its order dated 15.9.2004, refused to interfere with the impugned order. That order, ExhibitA to the petition, has essentially been challenged.
3. The facts of the case reveal that the decoy passenger, who accompanied a Constable and had lodged a complaint against the petitioner, was to be given ticket from Khadavli to Pune. Two and half tickets cost Rs. 115/-. The decoy passenger handed over Rs. 200/- to the petitioner. Instead of returning change of Rs. 85/-, the petitioner returned the change of Rs. 60/- and consequently, charged the passenger to the extent of Rs. 25/-.
4. Mr. Bagaria for the petitioner has confined himself to the question of the punishment awarded to the petitioner. We have noted that even Rule, in this case, has been issued only on the question of proportion of the punishment to the misconduct proved.
5. We have seen that the misconduct is overcharging in respect of the small amount. The punishment is of removal from service. We have to consider whether we find that punishment so shockingly disproportionate to the misconduct of the petitioner that we would persuade ourselves to interfere with the order of the Disciplinary Authority confirmed in appeal, in revision, before the CAT and then sought to be challenged in this petition.
6. Though undoubtedly the overcharging is to a very limited extent, it is only with regard to that decoy passenger. It is in respect of a case in which the petitioner has been watched and caught. It leaves out the numerous instances when the petitioner may not have been watched and caught. Each passenger is a victim. Each passenger has consequently been cheated and defrauded to that extent. The fact that the petitioner could overcharge a passenger whilst being under vigilance and scrutiny showed that the petitioner took advantage of either the ignorance or the illiteracy of the victim. It shows a dishonest attitude of the Government servant. It causes financial loss to the institution he serves. It results in criminal breach of trust between the third party contracting with the institution as also qua the petitioner in the service of that institution. It results in misappropriation of funds as it would cause unlawful loss to the third party and unlawful gain to the petitioner. In a given case, albeit to that limited extent, misappropriation of each small amount may cause unlawful loss to that extent to the institution and the corresponding unlawful gain to the petitioner by the use of such dishonest means and by misconducting himself.
7. It is in this light that it is a settled position in law through various judgments of the Apex Court that the quantum of the amount misappropriated, stolen or defrauded is not the yardstick to determine the extent of the punishment. No matter what is the amount the conduct betrays the trust of the institution in its worker. The institution, therefore, loses confidence in the worker. That institution, therefore, is entitled, upon proof of the misconduct, to remove such employee.
8. It is argued on behalf of the petitioner that it is a small act of a small man and the punishment is, therefore, disproportionate to his misconduct. We cannot persuade ourselves not to consider the victim’s point of view. Just as the petitioner is a small man and has committed a small misconduct, his victim is an equally a small man. Rs. 25/- matters to a passenger taking a second class daily ticket from Khadavli to Pune. Such victims would be expected to prefer a rate lesser even to that extent to make that small saving. It is only because of his illiteracy or the ignorance of the ticket value that he could be cheated, albeit to that extent. We must, therefore, not turn a nelson’s eye to the victim’spoint of view. In this light, we must refer to the judgments of the Apex Court cited before us by the counsel for the respondents.
9. Firstly, we will refer to the judgment in the case of U.P. State Road Transport Corporation, Dehradun v. Suresh Pal 2006 SCC (L&S) 1905. In that case, the conductor of State Road Transport Corporation carried the passengers without ticket. He was dismissed from service. It was held that an order of such dismissal by the Disciplinary Authority should not be interfered with by the High Court and such cases should be dealt with an iron hand and not leniently. It was held that by not issuing a ticket and pocketing the money thereby causing loss to the Corporation is a serious misconduct. Dismissal from service is not a punishment shockingly disproportionate to such misconduct. It is observed in that judgment that the conductor was holding a position of trust. If he misappropriated money and fabricated it, he indulged in a malpractice. Nothing can be expected of him in the future. If such persons are allowed to be let off with the light punishment then it will send out a wrong signal to other persons similarly situated. Such a punishment cannot be substituted for a lesser punishment.
10. In the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh 2006 SCC (L&S) 1290, misappropriation of an amount of Rs. 360.95 by a conductor was held to be a grave act of misconduct, deserving the punishment of dismissal. It was observed that sympathy or generosity cannot be a factor which could be considered in imposing or refusing the punishment.
11. In the case of T.N.C.S. Corporation Ltd. and Ors. v. K. Meerabai 2006 SCC (L&S) 265, the acquittal of the delinquent even in a criminal Court for a related charge was held not to matter. An employee found misappropriating the employercorporation’sfunds even for the first time did not call for interference of the order on the ground of sympathy or generosity. In that case despite the fact that the delinquent was acquitted of offences of criminal breach of trust and falsification of accounts under Sections 409 and 477A of the Indian Penal Code, holding that the delinquent had failed to maintain the prescribed records for issue of stock and for swindling the Corporation in collusion with the other members of the staff through misappropriation of stock and cash, deserved the punishment that was imposed as a major penalty. The limits of judicial review came to be considered in that judgment holding that it extended only to correction of errors of law and procedural errors leading to manifest injustice or violation of principles of natural justice. Imposing another punishment for the one imposed by the Disciplinary Authority, therefore, cannot fall within the purview of judicial review.
12. In the case of Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain 2005(1) Supreme 427, the scope of judicial review was considered taking into account the position that prevailed upon the Wednesbury principles in the United Kingdom for validity of an administrative action. It was the case of a Bank Manager, unauthorisedly withdrawing Rs. 25,000/- during the course of service. The doctrine of proportionality was considered in that judgment. It was held that judicial review could extend only to the extent that the Court would consider whether the decision is absurd or perverse. The Court would not go into the correctness of the choice made by the administrator amongst various alternatives open to him nor would it substitute its decision to that of the administrator. Under that principle, the Court would consider only the procedural impropriety or irrationality in the order and not the extent of the punishment imposed. Consequently, only if the decision shocks the conscience of the Court, there would be scope for interference. The Court would, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof.
13. It was further observed in that judgment that in such a case the Bank officer is required to exercise higher standards of honesty and integrity. He dealt with money of the depositors and customers. He had to take all possible steps to protect the interest of the bank to discharge his duties with utmost integrity, honesty, devotion and diligence. The breach of such discipline constituted a misconduct which was serious. The order of the administrator could not be interfered with by the Court.
14. We may not multiply the cases settling the above legal position.
15. Consequently, we are unable to interfere with the punishment imposed upon the petitioner in this case. We are conscious of the limitations which are on our jurisdiction and take into account the loss caused to the victim passenger and/or the respondentinstitution by the petitioner’s conduct.
16. Consequently, the petition is dismissed with costs. Rule stands discharged.