Sanjay Joshi v. Mr. Ishwar Datt Paliwal, Advocate, for the

challenged the aforesaid three orders by filing Claim Petition No. 14/N.B./SB/2014. His claim petition has been dismissed by Uttarakhand Public Services Tribunal vide judgment dated

11.2.2015. Thus feeling aggrieved, petitioner has filed this writ petition, challenging the judgment rendered by learned Tribunal. 2

2. It transpires that petitioner was posted In-charge, Police Station Someshwar, District Almora in the year 2012, while process of assembly elections was on; one Smt. Rekha Arya was contesting election from Someshwar Legislative Constituency; her husband Girdhari Lal Sahu, who was resident of Bareilly (U.P.), had long criminal history and there was apprehension that he may influence voters by extending threat or inducement during the elections.

3. According to petitioner, based on a report submitted by him, SDM concerned had passed an order under Section 144 CrPC, restraining Mr. Girdhari Lal Sahu from entering into Someshwar Tehsil and thereafter the order of SDM was strictly implemented by him. Learned Counsel for the petitioner submits that petitioner was issued a commendation certificate by Superintendent of Police, Almora,

31.2.2012, for conducting assembly elections peacefully.

4. Learned State Counsel, however, submits that petitioner was negligent in his duties and he did not take necessary steps for preventing Mr. Girdhari Lal Sahu influencing voters and there were complaints received that Mr. Sahu had threatened voters for casting votes in favour of his wife and he was found moving in a vehicle with ‘Press’ written on it; it was incumbent upon the petitioner to get Mr. Sahu bound under Section 3 107/116 CrPC, which he did not do. Thus the minor punishment, which has been imposed upon the petitioner, is just and proper in the facts and circumstances of the case.

5. Learned Tribunal has considered the rival contentions made by the parties and refused to interfere with the punishment imposed by holding that if there is some material against the petitioner, then it will not re-appreciate the evidence even though a different conclusion may be arrived at by the Court while sitting in appeal over punishment order. Operative portion of the impugned judgment is extracted below: that he was violating “The petitioner has clearly admitted in his grounds of appeal that the husband of Smt. Rekha Arya was visiting the office of his wife during the course of the election. Thus, it is apparent prohibitory order. So, the findings recorded by the punishing authority had sufficient reasons to hold that the petitioner has not followed the directions of the authorities issued from time time and he has not proceeded accordance with law under Sections 107 & 116 of Cr.P.C. Thus, there is some evidence against the petitioner as we have indicated earlier. This Court has no power to re-appreciate as to whether this is sufficient evidence or not. A vehicle was seized from the office of Smt. Rekha Arya and also the punishing authority has come to the conclusion that the petitioner is guilty of the misconduct. It is also settled position of law if there is some evidence against the petitioner then the Court of the Tribunal will not re-appreciate the evidence even though a different conclusion may be arrived by the Court while sitting as appellate Court. In judicial review the scope is limited. The Hon’ble Supreme Court in Para 25 of M.V. 4 Bijlani Vs. Union of India 2006 (4) SCC 713 has held as under:- “Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures.” In view of the above we do not find any merit in the petition. The petition fails and is liable to be dismissed.”

6. Learned Counsel for the petitioner contends that the view taken by the learned Tribunal that it cannot re-appreciate evidence is unsustainable. He referred to sub-section (1) to (5) to Section 5 of Uttarakhand Public Service (Tribunals) Act, 1976, which are extracted below: “5. Powers and Procedure of the Tribunal.—(1)(a) The Tribunal shall not be bound by the procedure laid down in the code of civil procedure, 1908, or the rules of evidence contained in the Indian Evidence Act, 1872, but shall be guided by the principles of natural justice, and subject to the provisions of this section and of any rules made under section 7, the Tribunal shall have power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private: Provided that where, in respect of the subject matter of a reference, a competent 5 court has already passed a decree or order or issued a writ or direction, and such decree, order, writ or direction has become final, the principal of res judicial shall apply; (b) The provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under section 4 as if a reference were a suit filed in civil court so, however, that:- (i) Notwithstanding limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year; the period (ii) In computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order representation, appeal, passed on such revision or petition, as the case may be, shall be excluded: Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under section 4 may be made within the period prescribed by that Act, or within one year next after the commencement of the Uttarakhand Public Services (Tribunals) (Amendment) Act, 1985, shall affect any reference made before and pending at the commencement of the said Act. Provided further that nothing in this clause as substituted by the Uttarakhand Public Service (Tribunals) (Amendment) Act, 1985, Shall affect any reference made before and pending at the commencement of the said Act. (2) The Tribunal shall decide every reference expeditiously and ordinarily, every case shall be decided by it on the basis of perusal of documents and representations, and of oral or written argument, if any. (3) The Tribunal may admit in evidence in lieu of any original document, a copy thereof attested by a gazette officer or by a notray. 6 (4) The Tribunal shall not ordinarily call for or allow being adduced oral evidence, and may, if necessary, requiring any party to file an affidavit. (5) The Tribunal shall, for the purpose of holding any inquiry under this Act, have, subject to the provisions of sub-section (1) the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters:- (a) summoning and enforcing attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or copy thereof from any office; (e) examination of witnesses or documents; commission issuing (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) reviewing its decision; (h) dismissing a reference for default or deciding its expert; (i) setting aside an order of dismissal for default or an order passed by it ex parte; (j) passing interlocutory orders pending final decision of any reference on such terms, if any, as it thinks fit to impose; (k) any other matter which may be prescribed.”

7. Reliance by learned Counsel for the petitioner on sub-section (1) to (5) to Section 5 of the aforesaid Act is misplaced. These provisions do not permit the Tribunal to sit in appeal over the order of punishment, passed by the competent authority. 7

8. a Law is well settled that High Court or Tribunal, constituted Administrative Tribunals Act, 1985 Uttarakhand Public Service (Tribunals) Act, 1976, do not exercise the powers which are available to an appellate authority. In other words, they cannot substitute their own judgment in place of the decision taken by the disciplinary authority. 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. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry 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; whether the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion.

9. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate 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 enquiry or where the conclusion or 8 finding reached by the disciplinary authority is based on no evidence.

10. In the case of State Bank of India v. Samarendra Kishore Endow, reported as (1994) 2 SCC 537, Hon’ble Supreme Court has considered and discussed the scope of powers of the Court while exercising judicial review of a punishment order. Para 10 and 11 of the said judgment are extracted below: “10. On question learned counsel punishment, respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It “is not an appeal from a decision, but a review of the manner in which the decision was made”. (Per Lord Brightman in Chief Constable of the North Wales Police v. Evans and H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority v. Gopinath & Sons.) In other words the power of judicial review is meant “to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment, reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court”. (Per Lord Marylebone in Chief Constable v. Evans). In fact in service matters, it was held by this Court as far back as 1963 in State of A.P. v. S. Sree Rama Rao, that: 9 “The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case to be or by allowing influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding … under Article 226 of the Constitution.” themselves 10

11. Now, coming to the power of the Court exercising judicial review to interfere on the question of penalty, it was held by a Constitution Bench in State of Orissa v. Bidyabhushan Mohapatra thus: sentence determining “But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an inquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the Tribunal were findings ‘unassailable’, the order of the Governor on whose powers by the rules no restrictions appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, justiciable. Therefore if the order may be supported finding as to substantial on any misdemeanour punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” is not This principle was reiterated in Railway Board, Delhi v. Niranjan Singh. The same 11 view was reiterated by this Court in Union of India v. Parma Nanda. It was an appeal from the judgment and order of an Administrative Tribunal. K. Jagannatha Shetty, J. speaking for the Bench observed in the first instance that the jurisdiction of the Tribunal is similar to the jurisdiction of the High Court in a writ proceeding and then dealt with the power of the Tribunal to interfere with the penalty imposed by the Disciplinary Authority. The learned Judge referred to the holding in State of Orissa v. Bidyabhushan Mohapatra (quoted by us hereinabove) and after referring to several other judgments of this Court, concluded thus: (SCC p. 189, para 27) 309 to Article “We must unequivocally state that 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 Constitution. If there has been an inquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of is a matter justice 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 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 substitute 12 found to be irrelevant or extraneous to the matter.” (emphasis supplied)”

11. Thus the view taken by the learned Tribunal that it cannot re-appreciate evidence while exercising power of judicial review cannot be faulted. Learned Tribunal could have interfered with the punishment order only if it reached to the conclusion that it was a case of no evidence. That is not the case here, as there appears to be some negligence on the part of the petitioner. Moreover, punishment has been imposed upon the petitioner after following the procedure as laid down in the applicable rules and petitioner was given an opportunity of defending himself. Thus any interference with the judgment rendered by learned Tribunal would not be warranted. Thus the writ petition fails and is dismissed. No order as to costs. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.)

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