High Court
Case Details
WP(C) 1718/2008 BEFORE HON’BLE MR. JUSTICE T.VAIPHEI
Legal Reasoning
The legality of the impugned order dated 26-12-2007 passed by the Assam Administ rative Tribunal, Guwahati in appeal Case No. 17 ATA/2005 upholding the order dat ed 9-1-2004 rejecting the appeal filed by the petitioner against his dismissal f rom service vide the order dated 22-1-2003 issued by the respondent No. 4, is ca lled into question in this writ petition. Both Mr. P Sarma, learned counsel for the petitioner and Mr. M Haloi, learned St ate counsel appearing for the State are heard at length. I have also perused the materials on record. The facts giving rise to this writ petition are that the p etitioner used to serve as cook (grade-iv) in 4th APTF Battalion Head Quarter, H owli w.e.f. 01.11.1986 against a sanctioned post. While he was serving as cook, in the year 2000, the then Commandant, 4th Assam Police Tusk Force Battalion Ho wli assaulted and misbehaved with the petitioner and directed him to go on compu lsory leave for a few days. According the petitioner, when he went to resume his duty, the Commandant did not allow him to do so. On 17.10.2003, he was surprise d to receive the order dated 23.1.2003, removing him from service. Aggrieved by this, he promptly filed an appeal before the respondent No. 3, who, however, by the impugned order dated 09.01.2004, dismissed his appeal. The grievance of the petitioner is that though the respondent authority rejected the appeal of the pe titioner, the respondent authority did not communicate the order to him. Ultimat ely, he was constrained to approach the respondent No. 4 for furnishing of the c ertain documents which were not served upon him and accordingly, visited the off ice of the respondent No. 3 as well. It was after visiting the respondent No. 3 that he got the said order dated 09.01.2004. Ultimately, he approached the Assam Administrative Tribunal in Appeal No. 17 ATA/ 2005. The case of the petitioner is that he was never served with a copy of the charge-sheet nor was he aware of any enquiry conducted against him by the respondent No. 4. The Tribunal dismisse d his appeal which prompted him to file this writ petition. After perusing the m aterials on records, it is obvious that the first point for consideration is as to whether the petitioner was aware of the Departmental enquiry conducted agains t him. In paragraph 6 of his writ petition, he categorically asserts that the im pugned removal order was passed without serving him a copy of the show cause not ice/charge sheet farming the definite charge against him. When this contention w as raised before the Tribunal, the Tribunal at paragraph 2 of Page 30 of the wri t petition dealt with the same in the following manner: (cid:28)The appellant having contended in his appeal memo that he was not given any not ice of the proceedings initiated against him and he having not been furnished wi th a copy of the show cause notice dated 15.05.00, the punishment imposed upon h im was unsustainable, the records were called for ascertaining the said position . The records having revealed that the appellant was in fact furnished with the show cause notice dated 15. 05. 00 and he had in fact received it by acknowledgi ng the receipt of the same by appending his signature on the copy of the said no tice available on records and further that the appellant had preferred a reply t o the same on 03.06.00, the appellant was confront with the said position to whi ch the appellant again denied receipt of the said show cause notice and denied t he signatures figuring on the body of the show cause notice and the said reply t o be his. This Tribunal for the purpose of ascertaining the veracity of the cont ention as raised before it by the appellant, proceeded to place the questioned d ocuments before and expert to ascertain as to whether the signatures as figuring therein was of the appellant or not. The said procedure adopted by this Tribuna l was not objected to by any of the parties to the proceeding.
Legal Reasoning
The report of the handwriting expert as brought on record, clearly refle cts that the appellant had received the copy of the show cause notice dated 15.0 5.00 and had submitted his reply to the same on 08.06.00. As such the contention of the appellant that he had no notice of the initiation of the proceeding agai nst him is clearly unfounded and the appellant had suppressed the said fact from this Tribunal. The records of the matter as produced before us also reveals tha t the appellant was given all due opportunities to place his case and in spite o f repeated directions to participate in the Enquiry, the appellant ignored the s ame without any reason. The appellant acted in the matter in a most casual manne r. The allegations as leveled against the appellant of remaining unauthorisedly absent having been proved against the appellant and there being no infirmity in the proceedings initiated against the appellant, there exits no occasion for thi s Tribunal to interfere with the orders as impugned in the instant appeal. (cid:29) In my opinion, in view of the above findings made by the Tribunal, which are, at any rate, based on some evidence, that this Court can hardly substitute its opi nion for the opinion of the Tribunal. In other words, the findings recorded by T ribunal can be interfered with by this Court only if the findings are based on n o evidence, are perverse, or suffer from procedural impropriety. The findings of the Tribunal, that the petitioner actually received the show cause notice, is based on the opinion of the report of the handwriting expert examined by it and , as such, the same cannot be faulted with. Under the circumstances, the content ion of the learned counsel for the petitioner that the petitioner had no notice of the initiation of the proceeding against him, is clearly without any foundati on and has no legs to stand upon. In this connection, the observations of the Apex Court in the Case of State of Haryana V. Rattan Singh in (2005) 3 SCC, 254 may profitably be quoted by us: (cid:28)In a domestic enquiry all the strict and sophisticated rules of the Evidence Ac t may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative Tribunals mu st be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial a pproach is objectivity, exclusion of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, can not be held to be good. The simple point in all these cases is, was there some e vidence or was there no evidence- not in the sense of the technical rules govern ing court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence informant proof of the find ing by a domestic tribunal is beyond scrutiny by court, while absence of any evi dence in support of the finding is an error of law apparent on the record and th e court can interfere with the finding. In the present case, the evidence of the inspector is some evidence whic h has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also, merely because th eir statements were not recorded, the order for termination cannot be invalid. I n fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but for the Tribunal to assess the evidence o f the co-conductor. (cid:28) That part, the petitioner is equally guilty of suppression of material fact: he has undoubtedly suppressed the material fact that he received the reply to the s how cause notice received by him. He, who comes before this Court must come with a clean hand. A number of contentions have also been raised by the learned coun sel for the petitioner to challenge the legality of the impugned removal order b ut since this Court is satisfied from the fact that the petitioner having duly r eceived the show cause notice and having filed his written statement and having not chosen not to take in the disciplinary proceeding, he has no legitimate grie vance to make against the findings made against him in the departmental enquiry. There is, therefore, no merit in this writ petition, which is, accordingly, dis missed, but by directing the parties to bear their respective costs.