JUDGMENT
Hima Kohli, J.
1. All these writ petitions are taken up for final hearing and disposal by passing a common order, as counsels for the parties agree that the facts of these matters and issues involved are common and the order assailed by the petitioners is also the same. The petitioners have assailed the orders dated 20th February and 4th May, 1995 passed by the respondent, DTC removing the petitioners from the service of the respondent with immediate effect under Clause 15 (2) (vi) of D.R.T.A.(Conditions of Appointment and Services) Regulations, 1952.
2. Factual matrix of the case is as narrated hereinafter. The petitioners were posted as the Assistant Traffic Inspectors on 1st April, 1994. On 12th April, 1994, they were suspended from service and were served with a charge sheet on 13th May, 1994 indicating the following irregularities and calling upon them to explain as to why action should not be taken against them for misconduct within the meaning of para 19 (f) (h) & (m) of the Standing Orders governing the conduct of DTC employees:
That as per duty allocation, Raja Garden Terminal, West Checking, w.e.f.1.4.94, you were assigned the checking job in Beat No. 5+6 Along with Sh.Rajvir, ATI, T.No. 18046 & Sh.Prem Singh, ATI, T.No. 11456, but after scrutinizing your checking sheet for the different dates the following irregularities have been reported against you:
1) You did not perform your duty as per duty allocation i.e. in beat No. 5+6. You performed the duty in beat No. 10+11+12 unauthroisedly.
2) On 1.4.94, after availing rest you Along with Sh.Rajvir, ATI, & Sh.Prem Singh, ATI, checked the bus and mentioned the same in your checking sheet at S.No. 22, but you have shown different bus number in your checking sheet, however, the bus conductor & waybill numbers are same.
3. In the aforesaid charge sheet, it was recorded that the past conduct of the petitioners shall be taken into consideration at the time of passing the final orders in the case. The petitioners filed their reply to the charge sheet which was not found satisfactory and pursuant thereto enquiry proceedings were initiated against the petitioners. The Inquiry Officer submitted his report holding inter alia that both the charges mentioned in the charge sheet against the petitioners stood proved. As a result, the Disciplinary Authority vide orders dated 20th February, 1995 in respect of Mr.Ramphal, petitioner No. 1 in WP(C) No. 4824/95 and 4th May, 1995 in respect of Mr.Rajbir Singh, petitioner No. 2 in WP(C) No. 4824/95 and petitioner in WP(C) No. 5013/2001, imposed the penalty of removal from service with immediate effect. The petitioner in WP(C) No. 3474/1996, Mr.Prem Singh was also removed from service with immediate effect vide orders dated 20th February, 1995 passed by the Disciplinary Authority. Aggrieved by the said penalty imposed on them, the petitioners filed an appeal before the Appellate Authority. The Appellate Authority, however, rejected the appeal of the petitioners vide order dated 27th July, 1995. Under these circumstances, the petitioners filed the present writ petitions.
4. It was submitted by the counsel for the petitioners that the action of imposing the penalty of removing the petitioners from the service of the respondent is illegal, arbitrary and discriminatory inasmuch as both the Disciplinary Authority as also the Appellate Authority failed to appreciate the fact that the findings of the Inquiry Officer were a result of non-application of mind. It was submitted that no concrete evidence was brought on record or proved against the petitioners in the enquiry proceedings for them to have been held guilty. It was further submitted that the petitioners had served the respondent for about three decades, were holding the post of senior ATIs and were on the verge of promotion as TIs. There was no adverse entry in their CRs and there was no occasion to inflict any punishment upon them by the authorities as per their past record which could have invited such a serious penalty on them.
5. In support of the contention that the Inquiry Officer misappreciated the evidence placed on record to give the finding that he did, the counsel for the petitioners referred to the inquiry report to state that despite the statement of Sh.Mandu Singh, ATI, defense witness to the effect that he was responsible for preparing the duty allocation register for checking at the relevant time and that the petitioners were asked to continue their checking according to their convenience so that output should not be less in the CFT, the Inquiry Officer completely overlooked the said evidence. Thus counsel for the petitioners emphasized that the petitioners on their own had not changed their duty from beat No. 5+6 to beat No. 10+11+12, contrary to the duty allocation and that it was on the instructions issued by the said Sh.Mandu Singh, the superior officer of the petitioners, who was in-charge of duty allocation, that the petitioners performed duty in beat No. 10+11+12. It was further stated that it is not a case where the petitioners had absented themselves from duty illegally but a case where they were very much found performing duty, but on a different beat. The Inquiry Officer, however, dealt with the aforesaid issue as below:
Accused employee produced his defense witness Shri Mandu Ram, A.T.I. who stated during the enquiry that Shri Rajvir Singh, Traffic Inspector and Deputy Manager Sahib ordered the aforesaid employee as Shri Rajvir Singh ATI and Shri Prem Singh, ATI be posted jointly in the checking duty and they should continue checking work according to their convenience so that there may not be any lesser output in the CFT. On the basis of the facts, this seems not satisfactory because defense side has not produced any concrete certificate or sold proof.
6. Another plea raised by the counsel for the petitioners was that even the other charge levelled against the petitioners to the effect that the checking sheet of the petitioners showed different bus numbers though the bus conductor and the waybill Nos. were the same was not of such a grave magnitude, as to impose penalty of removal from service on the petitioners. Counsel for the petitioners invited the attention of this Court to paras 19 (f), (h) & (m) of the Standing Orders of the respondent mentioned in the charge sheet and the categorical observation made therein that the past conduct of the petitioners will be taken into consideration at the time of passing the final orders in the case. He submitted that despite the fact that paras 19 (f), (h) & (m) were not attracted to the petitioners, the respondent did not take into consideration the said fact and also completely overlooked the fact that the petitioners had worked diligently with the respondent for over 30 years and they had a blemishless career as there was not a single adverse entry against them. Hence, it was not a case where such a severe punishment should have been imposed on the petitioners, nor was it a case where it could be held that the respondent had lost confidence in the petitioners. Thus it was argued that the punishment imposed on the petitioners was disproportionate to the charges levelled against them. It was also argued that at the most, it was a case where the petitioners should have been let off with a warning.
7. It was further argued on behalf of the petitioners that assuming that without admitting that the respondent had lost confidence in the petitioners, the petitioners could have been compulsorily retired from service instead of being removed from service keeping in view the fact that 30 years of long service had been rendered by the petitioners and that a punishment of compulsory retirement would have at least entitled the petitioners to retiral benefits, including pension for which they had opted under the 1992 Scheme floated by the respondent and of which they have been deprived by passing of the impugned orders. Reference was made by the petitioner on Rule 48A of the CCS Rules which makes it clear that after 30 years of service being rendered by an employee, he is entitled to take retirement from service. In support of his contention that the punishment imposed on the petitioners was disproportionate to the charges levelled against them, the counsel for the petitioners has relied on the following judgments:
(i) Colour-Chem Ltd. v. A.L. Alaspurkar and Ors. 1998 (1) SLR 757.
(ii) Ram Autar Singh v. State Public Service Tribunal and Ors. 1998 (3) SLR 799.
8. Counsel for the petitioners also relied on a judgment rendered by the Supreme Court in the case of Mahindra and Mahindra Ltd. v. N.B. Narawade etc. reported as 2005 (2) SLR 765, to state that this Court while exercising its discretion under Article 226 of the Constitution of India can interfere with the punishment imposed by the Disciplinary Authority in a case like that of the petitioners.
9. On the other hand, counsel for the respondent supported the impugned orders of punishment. It was stated that the Inquiry Officer observed the principles of natural justice and gave an opportunity of hearing to the petitioners to adduce evidence as also to examine relevant documents. Hence, all the principles of natural justice were duly followed by the Inquiry Officer before submitting his report. It was also argued that the petitioners being senior ATIs were expected to conduct themselves properly and that non-performance of duty on the assigned beat is a severe misconduct and if the action of the petitioners was permitted to be condoned, it would lead to indiscipline. Hence the impugned orders passed by the respondent imposing penalty of dismissal from service on the petitioners were justified. It was also stated that an opportunity of personal hearing was granted to the petitioners by the Appellate Authority and the petitioners, therefore, cannot make a grievance on this count. In respect of the Standing Orders, it was submitted that the respondent had placed reliance on para 19(m) thereof for imposing the punishment of removal of service on the petitioners. Lastly, it was submitted that the defense taken with regard to the deposition of witness, Mr.Mandu Singh is a sheer afterthought and there was no such grievance raised by the petitioners in the appeal preferred before the Appellate Authority. In support of his contention that the nature of misconduct has to be seen in each case in its own peculiarities, counsel for the respondent relied on the judgment of the Supreme Court in the case of M.M. Malhotra v. Union of India and Ors. reported as .
10. On the scope of judicial review in examining the proportionality of punishment being limited to the decision making process and not to the decision itself, following judgments were referred to by the counsel for the respondent:
(i) Disciplinary Authority-Cum-Regional Manager and Ors. v. Nikunja Bihari Patnaik .
(ii) Chairman & Managing Director, United Commercial Bank and Ors. v. P.C.Kakkar .
(iii) Ram Saran v. IG of Police, CRPF and Ors. .
(iv) P.D.Agrawal v. State Bank of India and Ors. (2006) 8 SCC 776.
11. I have heard the counsels for the parties. I have also perused the documents placed on record of the case, including the charge sheet, the inquiry report and the representations made by the petitioners to the Appellate Authority.
12. With respect to the findings given in the Inquiry Report and assailed by the petitioners, the settled law is that the court should refrain from scrutinizing the domestic proceedings, except where the proceedings are vitiated by violation of the principles of natural justice or on account of arbitrariness or utter perversity. The court is not expected to sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf and until the decision of the disciplinary authority or the appellate authority is so illogical, or suffers from such procedural impropriety or is so shocking to the conscience of the court/tribunal, or such decision is arrived at in complete defiance of logic or moral standards. The Court/Tribunal would not go into the correctness of the choice made by the disciplinary authority or the appellate authority, as may be open to it in law. In this regard, reference may be made to the following judgments of the Supreme Court:
(i) Martin Burn Ltd. v. R.N. Banerjee 1958 SCR 514.
(ii) State of Orissa v. Bidyabhushan Mohapatra .
(iii) State of A.P.v. S. Sree Rama Rao .
(iv) State Bank of India and Ors. V. Samarendra Kishore Endow and Anr..
(v) Regional Manager, Rajasthan SRTC V. Sohan Lal .
(vi) Bharat Forge Co.Ltd.V.Uttam Manohar Nakate .
(vii) Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane .
(viii) Muriadih Colliery v. Bihar Colliery Kamgar Union .
(ix) V. Ramana v. APSRTC .
(x) Hombe Gowda Educational Trust and Anr. V. State of Karnataka and Ors. .
(xi) L.K. Verma v. H.M.T. Ltd and Anr. .
13. Thus merely because a different conclusion can be arrived at than the one arrived at in the enquiry proceedings, is no ground for this Court to interfere in the findings recorded by the Inquiry Officer. Sitting in judicial review, while the court ought not to interfere in the decision taken in the domestic proceedings, it can certainly put under the scanner, the decision making process adopted by the competent authority.
14. Now coming to the proportionality of the punishment imposed on the petitioners. The charge sheet was issued to the petitioners on two counts, namely, non-performance of duty as per the duty allocation and showing different bus numbers in the checking sheet though the bus conductor and waybill numbers were the same. The aforesaid misconduct has been stated to fall under para 19 (f), (h) and (m) of the Standing Orders of the respondent, which are reproduced hereinbelow for ready reference:
19 (f): Habitual breach of any rules, law, instructions or orders etc.applicable to the employees of the Authority.
(h) Habitual negligence of duties and lack of interest in the Authority’s work.
(m) Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation.
15. While paras 19 (f) and (h) of the Standing Orders categorically state that the breach/negligence of duties should be habitual in nature, para 19 (m) of the Standing Orders refers to an activity which is prima facie detrimental to the interest of the organisation. As is evident from the records and remains uncontroverter by the respondent, the petitioners were not in any habitual breach of the rules or habitually negligent in performing their duties. There was no past history of misconduct on the part of the petitioners that has been brought on record. Counsel for the respondent has also not placed reliance on para 19 (f) and (h) of the Standing Orders. Coming to para 19 (m), which refers to an activity which is prima facie detrimental to the interest of the organisation, counsel for the respondent stated that the respondent has invoked the said para of the Standing Order to impose the punishment of removal from service on the petitioners.
16. The only justification given by the counsel for the respondent in imposing the aforementioned punishment of removal from service on the petitioners is that performing duties at a different beat than the assigned beat was not permissible and the same if permitted, would cause indiscipline in the respondent Corporation. With respect to the second charge, i.e. error in the checking sheet as prepared by the petitioners on 1st April, 1994 the respondent itself observed in the charge sheet that while the bus conductor and the waybill numbers were the same, the bus numbers in the checking sheets were different. The said error was explained by the petitioners to be a result of bona fide inadvertence. No mala fides of any nature were attributed to the petitioners on account of the said misconduct, nor was a case made out by the respondent to the effect that by performing their duties elsewhere, the petitioners had taken some undue advantage or availed of any illegal benefit to the detriment of the respondent.
17. A perusal of the charge sheet issued to the petitioners shows that it was specifically recorded that their past record shall be taken into consideration at the time of passing of the final orders in the case. Nothing adverse has been brought on the record by the respondent, with respect to the previous record of the petitioners. Nor is there anything placed before the court to show that the past conduct of the petitioners was taken into consideration by the competent authority while imposing the penalty of removal from service on the petitioners. Keeping in mind the grave impact of the impugned orders imposing penalty of removal from service on the petitioners, the caveat inserted by the respondent in the charge sheet can neither be lost sight of nor wished away.
18. In the case of M.M. Malhotra (supra), the Supreme Court observed with regard to misconduct as below:
Para 17: The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word “misconduct” is not capable of precise definition. But at the same time though incapable of precise definition, the word “misconduct” on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
19. In the present case, the acts for which the charge sheet was issued to the petitioners and for which the petitioners were found guilty, are not of such a forbidden quality or character so as to invite the severest of punishment, namely, removal from service without taking into consideration their past conduct.
20. The judgments relied on by the respondent to claim that the scope of judicial review is limited while interfering with the proportionality of punishment have no applicability as the same are in respect of cases where the delinquent employee was found to be guilty of fraud, verbal abuse and unlawful behavior in performance of duty. The case in hand, however, is not of the said nature.
21. It is settled law that in judicial review, the court can take cognizance of the fact that the penalty imposed on the ground of proven misconduct is disproportionate in certain cases. The Supreme Court has held in the case of B.C. Chaturvedi v. Union of India and Ors. reported as as below:
Para 18: A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
22. Observations made by the Supreme Court in this regard in the case of United Commercial Bank (supra) are also noteworthy, and the relevant extract of the said judgment is being reproduced hereinbelow:
Para 11: 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 its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.
Para 12: 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.
23. In view of the aforesaid facts and circumstances, it is concluded that the impugned orders have the effect of imposing highly disproportionate and arbitrary penalty upon the petitioners in respect of a misconduct which cannot be prima facie said to be of such a grave magnitude as to be held as being detrimental to the interest of the organisation for attracting the punishment of removal from service, without taking into consideration the past conduct of the petitioners, as specifically recorded in the charge sheets.
24. Keeping in view the peculiar facts and circumstances of the present case, the penalty of removal from service imposed on the petitioners cannot be characterised as reasonable. In this view of the matter, the impugned orders dated 20th February and 4th May, 1995 are set aside. The respondent is directed to reconsider the issue of penalty after perusing the records and particularly keeping in view the past conduct of the petitioners. Fresh orders shall passed by the competent authority in respect of the petitioners in all the three writ petitions, preferably within a period of six weeks from the date of receipt of the copy of the judgment. The writ petitions are allowed to the above extent. Parties are left to bear their own costs.