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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 )