Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 839 OF 2008
SHIV NATH .......APPELLANT
Versus
GENERAL SECRETARY, INDIAN
RAILWAY CONFERENCE ASSOCIATION &
ANR.
.....RESPONDENTS
O R D E R
The appellant was an employee of Indian
Railway Conference Association ('IRCA' for short), a
department of the Railways. In regard to certain charges,
one of which was that he seized the muster roll/attendance
register and tore it, a chargesheet was issued to him and
an enquiry was held. The enquiry officer, after holding an
enquiry on 7.3.1980 and 8.3.1980, submitted an enquiry
report holding the appellant guilty of the charges. As a
consequence, the disciplinary authority terminated the
appellant from service on 24.6.1980. The appellant
challenged the termination by filing a suit (Suit
No.955/1984) in the Court of the Munsif, Ghaziabad. The
trial Court, by judgment and decree dated 20.4.1984,
dismissed the suit. The appeal filed by the appellant was
allowed by the first appellate Court by judgment dated
20.1.1990. It held that the enquiry was not proper and the
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evidence that was let was not sufficient to establish the
guilt of the appellant. As a consequence, it declared the
order of termination as illegal and further declared that
the appellant continued as a khalasi under IRCA. The said
judgment was challenged by IRCA in a second appeal before
the High Court. The High Court, by the impugned judgment
dated 4.9.1992, allowed the second appeal. It held that
the first appellate court could not re-appreciate the
evidence produced in the domestic enquiry, as if it sat in
appeal over the findings recorded in the domestic enquiry
and the interference by the first appellate Court was not
warranted. As a result, the judgment of the first
appellate Court was set aside and the suit was dismissed.
The said judgment of the High Court is under challenge in
this appeal of the employee by special leave.
2. The first contention urged by the appellant
is that the enquiry was ex-parte and he did not have an
opportunity to cross examine the several witnesses who were
examined in the enquiry. This plea was not raised by the
appellant in his plaint and no issue was framed. On the
other hand, the specific plea in the plaint was that when
the plaintiff received the letter of Enquiry Officer
(informing the enquiry, date and venue) he informed the
Enquiry Officer that he had complained to Schedule Caste
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Commission about his victimisation and therefore the
enquiry was not to be continued. Thus the appellant was
aware of the enquiry but chose not to participate in it.
It is of some interest to note that the enquiry report
shows that the Enquiry Officer issued a notice dated
11.2.1980 informing the appellant that enquiry would be
held at 11 a.m. on 7.3.1980 and 8.3.1980 and indicated the
venue; that the said notice was acknowledged by the
appellant on 12.2.1980; that the appellant, however,
informed the Enquiry Officer that the disciplinary enquiry
should be suspended till the 'Schedule Castes Commission'
considered his representation in respect of alleged
harassment and passed appropriate orders thereon; that the
Enquiry Officer again sent a communication to the appellant
calling upon him to attend the enquiry as earlier
indicated; that inspite of it, the appellant did not attend
the enquiry; and therefore, the enquiry was conducted on
7.3.1980 and 8.3.1980. The Enquiry Report also records that
on 7.3.1980 the enquiry officer, witnesses and the
appellant were present, but after sometime, the appellant
became hostile and left the room even though he was
required to participate in the enquiry. It is thus seen
that notice was given and opportunity was given to the
appellant. If he chose not to participate in the enquiry
or cross examine the witnesses, he has to blame himself.
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We find no error or violation of principles of natural
justice as far as enquiry is concerned.
3. The next contention of the appellant is that
the first appellate Court being the final Court of facts,
the High Court ought not to have interfered with the
decision of the first appellate Court. We find that the
High Court has framed appropriate questions of law and
examined the matter. The High Court found that all the
witnesses who were examined had given evidence that the
appellant had torn the attendance register. The appellant
admitted in the plaint that he was present when the
attendance register was torn, but tried to contend that
someone else tore it. The first appellate Court examined
the evidence as if it was sitting in appeal over the
evidence led in the domestic enquiry and by holding that
evidence was not satisfactory and further holding that the
punishment was disproportionate to the allegation against
him, interfered with the punishment. It is well settled
that courts will interfere only in cases of 'no evidence'.
Courts cannot interfere on the ground that evidence was
insufficient. Nor can Court interfere with the punishment
unless it is shockingly disproportionate to the gravity of
the proved charge. The High Court observed as follows:
“As it appears from the allegation
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itself, the appellant preferred an appeal
against the order of punishing authority but the
said appeal was also dismissed. In this way, he
exhausted the remedy available to him by filing
departmental appeal. It was the punishing
authority as also the appellate authority who
went into the charge on the basis of the
evidence and the respondent was found guilty and
consequently, while the punishing authority
awarded the penalty, the appellate authority
dismissed the appeal against the said penalty.
The courts are not supposed to sit in
appeal over the finding of the punishing and
departmental appellate authority. The court can
interfere only in the case court finds that it
was a case of no evidence or the conclusion
arrived at was perverse in the light of the
evidence.
On examination of the matter in this
light I find that the first appellate court
itself did not read the evidence correctly. The
first appellate court was influenced by the
statement of Sri A.R. Chatterji regarding whom
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the plaintiff-respondent's contention is that at
the relevant time, he was present before him for
submitting the application. But this witness
during his statement before the trial court when
examined by the plaintiff stated clearly that in
the examination in chief that he could not say
whether or not the plaintiff was present in the
office at the time of the delivery of the
letter. In the cross examination, he has stated
that he sits inside the office and the people
deliver the letter from outside. He stated that
the letter was, no doubt, received, but he could
not say whether the said letter was given by the
plaintiff or some body else. Thus, contention
of the plaintiff based on the statement of Sri
Chatterji, P.W.1 stands demolished by the
statement of the said witness itself.
During the enquiry, all three witnesses
were examined in support of the charge. Before
the court also one of the said witness P.K.
Banerji D.W.2 was also examined and he stated
that he had seen the plaintiff-respondent
torning the register. He further stated that
beside him, there were two other witnesses also
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whose statement were recorded during the
enquiry. In view of this evidence, it cannot be
said that the case was based on the secret or
biased enquiry. Thus, the report is not
defective as observed by first appellate court.
It would be relevant to discuss the
conduct of the plaintiff-respondent during his
service. Because of his misconduct, he was
removed but he repeatedly wrote letters to the
higher authorities and therefore, on the
direction of the Chairman, he was taken back in
service but soon thereafter, he committed
misconduct regarding which the enquiry proceeded
against him but he again adopted the practice of
writing letter to the authorities as has been
alleged by him in the plaint itself. During the
enquiry, opportunity was given to the plaintiff-
respondent and the enquiry report was submitted
after evidence in the case, was recorded. It
was not proper for the first appellate court to
have gone into the appreciation of evidence. He
committed gross error by misinterpreting the
evidence and his approach and appreciation of
evidence was against the material statements.
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He did not read the evidence as a whole but gave
finding in favour of the appellant by reading
out the portion which was in his favour while
reading the evidence as a whole, no case of the
plaintiff was made out even of the basic
evidence produced before the court.”
4. On the facts and circumstances, we are
therefore satisfied that the High Court was justified in
reversing the decision of the first appellate Court. We
find no reason to interfere. Appeal is dismissed.
......................J.
( R.V. RAVEENDRAN )
New Delhi; ......................J.
December 15, 2010. ( A.K. PATNAIK )