(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toto issue an order, direction or Writ more particularly one in the nature of Writ of Certiorari a) Calling for the records relating to the proceedings, dated 29/12/2009 of the 3rd respondent and proceedings, 24/06/2011 of the 2nd respondent affirming the orders of the Disciplinary Authority forwarded to the petitioner through Reference No. VITL/RR/OPNS, dated 21/07/2011 of the Chief Installation Manager and quash or set aside the same holding it as arbitrary, illegal, unjust and violative of Articles 14 and 21 of the Constitution of India. b) Consequently, declare that the petitioner is entitled to be treated as to have been on duty on and from the date on which he has been placed under suspension and that he is entitled to receive all the benefits including monetary and seniority. c) Direct the Respondents to release all the benefits that would flow from out of quashing the impugned orders and grant of the declarations prayed for in this writ petition.

IA NO: 1 OF 2012(WPMP 7044 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to fix an early date for hearing and disposal of the Writ petition.

IA NO: 1 OF 2023

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to file the Counter affidavit in W.P.No.5551 of 2012 and pass)

1. The petitioner is challenging the proceedings dated 29.12.2009 passed by the 3rd respondent and proceedings dated 24.06.2011 affirming the orders of the disciplinary authority by the 2nd respondent, which were communicated to the petitioner vide proceedings dated 21.07.2011. The petitioner is also seeking a declaration that he be treated as on duty from the date of his suspension. A further prayer seeking a direction to the respondents to release all the service benefits due payable to the petitioner, which would have accrued to the service of the petitioner after quashing of the impugned proceedings in the writ petition.

2. The learned senior counsel appearing for the petitioner submits that the petitioner, after completing B.E. Mechanical, has applied for the post of Officer in the 1st respondent-Corporation. The petitioner was appointed as Officer Trainee on 27.12.1993. It is submitted that the petitioner was discharging his duty without any blemish or complaint and to the best satisfaction of his Reporting Officers of the 1st respondent-Corporation.

3. It is submitted that the petitioner was transferred to Visakhapatnam Terminal and he assumed charge on 12.07.2007. It is submitted that the petitioner was posted as a Gantry Officer. The Gantry Officer is in charge of the 16 loading bays, where trucks transporting fuel to the retail outlets are refueled. It is submitted that all 16 bays will fill the pumps simultaneously. It is also submitted that 16 trucks would be filled simultaneously with various fuels, and the responsibility for ensuring each truck is filled to the brim rests with the driver of each of the truck and the officer supervising all 16 bays. The petitioner was suspended on 10.09.2007 and served with a charge memo dated 26.11.2007, containing a sole charge that the tank truck was loaded in excess, as confirmed by the crew, and that this was done on the advice of the petitioner. Alleging violation of clause 4(b)(a) and (c) of the Discipline and Appeal Rules. It is submitted that the respondents have unilaterally determined that the petitioner has indulged in instructing the filling up of excess fuel and that the respondents have detected the misappropriation committed by the petitioner. The respondents did not consider the objections raised by the petitioner and proceeded to appoint V.R. Saxena, and J.M. Nayak was appointed as a Presenting Officer. V.R. Saxena was appointed as an Enquiry Officer.

5. The Enquiry Officer commenced the hearing on 08.07.2008, and the Presenting Officer submitted 11 documents as exhibits. It is submitted that the Presenting Officer has based the case completely on the statement of the truck Driver and the Helper. The learned senior counsel has raised the following grounds for consideration of the Court for setting aside the impugned proceedings ;

                  (i) Ground of No Evidence : The learned senior counsel submits that there is absolutely no evidence which would clinchingly establish the role of the petitioner in allegedly instructing the truck Driver and Helper to fill excess fuel into the tank. It is submitted that when there is no evidence the punishment imposed on the petitioner would have to be set aside. It is also submitted that the petitioner was victimized and targeted by his Office Seniors and others and were waiting in wings for an opportunity to implicate the petitioner in some case and get it of him. It is submitted that the reading of the enquiry proceedings and the statements recorded would categorically imply that there is absolutely no evidence for falsely implicating the petitioner.

                  (ii) Quality of Evidence is important rather than quantity : The learned senior counsel submits that elaborate enquiry was conducted, several statements were recorded and the enquiry report was purposefully made bulky without any quality evidence which points the finger of suspicion to the petitioner.

                  (iii) Private conversation cannot lead to enquiry : It is submitted that private conversation between two parties who were not examined as witness which is the basis for the enquiry and subsequent passing of the orders which are impugned in the writ petition.

                  (iv) No question of overloading : The learned senior counsel submits that the tankers are designed to carry certain capacity of fuel and those tankers are reloaded on several occasions. There cannot be any question of excess loading in the tankers which are designed to carry specified quantity of fuel.

                  (v) Senior Officer MW.3 framed the petitioner : It is submitted that a Senior Officer whose statement was recorded as witness MW3 had targeted the petitioner and has implicated the petitioner in a false case though there is no supporting material.

                  (vi) No other action was initiated against the petitioner : It is submitted that when the property of the 1st respondent is subjected to misappropriation or an attempt to misappropriate is made the respondents would normally filed the criminal case. In the present case the respondents new that filing of a criminal case against the petitioner could be counter productive as they were aware that no offence ever took place which would require investigation by the police.

                  (vii) The punishment is too harsh : The learned senior counsel submits that there is no quantification of the alleged monetary loss incurred by the respondents. Even assuming without admitting that one tanker out of 16 tankers had some excess amount of fuel, the punishment imposed is certainly disproportionate. It is submitted that the role of the petitioner as a Gantry Officer is to be in-charge of the 16 loading base where 16 trucks are loaded simultaneously. It would be humanly impossible for the petitioner to supervise loading of the 16 trucks at the same time. There were also other staff who were overseeing the loading of tankers and the petitioner had to essentially depend on the other staff. The minor irregularity if so committed would have invited the severe punishment of removal from service.

6. The learned senior counsel for the petitioner places reliance on B.C.Chaturvedi Vs. Union of India and others((1995) 6 SCC 749), the Hon’ble Supreme Court while considering the scope of judicial review under the Administrative Law held that the High Court has power to alter the penalty imposed by the disciplinary or the appellate authority. The facts of the case would have to be gone into for determining the proportionality of punishment. Sher Bahadur Vs. Union of India and others((2002) 7 SCC 142), the Hon’ble Supreme Court held that sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. Roop Singh Negi Vs. Punjab National Bank and others((2009) 2 SCC 570), the Hon’ble Supreme Court held that the report of the Enquiry Officer in order to sustain the scrutiny of law and fact should be substantiated by evidence. Report prepared on surmises and conjectures cannot sustain.

7. It is submitted that this is a fit case where this Court can exercise the extraordinary jurisdiction under Article 226 of Constitution of India and set aside the punishment imposed on the petitioner.

8. The learned senior counsel appearing for the respondents submits that the Enquiry Officer has conducted the enquiry in a fair and transparent manner. It is also submitted that the Enquiry Officer accommodated the petitioner by extending a fair opportunity of representation. It is also submitted that the enquiry report is certainly based on appropriate and relevant evidence. It is submitted that the evidence which is relevant to the subject in issue may be considered as irrelevant by the petitioner. It is the Enquiry Officer who has conducted the enquiry and recorded the statements of witnesses who have found relevant evidence for holding the charges as proved against the petitioner. It is submitted that it is certainly not the case of no evidence or evidence without quality. It is submitted that the petitioner could have had locus to comment on the evidence, subject to the petitioner participating in the enquiry proceedings during the relevant point in time.

9. It is submitted that though the petitioner was granted ample opportunity to cross-examine the witnesses whose statements were recorded by the Enquiry Officer, the petitioner chose to abstain from participating in the enquiry proceedings. It is submitted that the petitioner has himself admitted that the petitioner has not cross-examined MW.2, MW.3 and MW.4. It is submitted that the request for visiting the site and checking the tanker was rightly rejected by the respondent authorities as the same was evidently an attempt to delay the enquiry process. When the statements and documents were before the Enquiry Officer and available for the petitioner to verify them, cross-examination would have been conducted on the available material and any requirement of visiting the site or verifying the tanker would have been demonstrated by the petitioner during the course of cross-examination. It is submitted that the petitioner was adamant in delaying the enquiry process, and as such, the impugned proceedings were issued after considering the available material and cogent evidence.

10. The learned senior counsel appearing for respondents places reliance on The State of Karnataka & Anr Vs. N.Gangaraj(Civil Apeal No.8071 of 2014, decided on 14.02.2020), the Hon’ble Supreme Court while deciding the scope of judicial review held that the discrepancies in evidence of the department cannot be branded as case of no evidence. It is also held that the findings of the disciplinary authority once based on the appreciation by the Enquiry Officer, the Tribunal or the High Court ought not to interfere. The Indian Oil Corporation & Ors Vs. Ajit Kumar Singh & Anr(2023 LIveLaw (SC) 478), the Hon’ble Supreme Court held that the power of judicial review of the constitutional Courts is evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. It is also held that the constitutional Courts would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity. The State of Rajasthan & Ors Vs. Bhupendra Singh(Civil Appeal Nos.8546-8549 of 2024, decided on 08.08.2024), the Hon’ble Supreme Court held that the High Court ought not to interfere in the fact finding exercise and had restored the removal order passed by the disciplinary authority.

11. Heard both the learned senior counsel appearing for the parties.

Perused the material on record.

12. The short point for consideration is whether this Court can interfere with the impugned proceedings and grant the relief as prayed for or any other relief for which the petitioner is entitled to.

13. It is not in dispute that the petitioner was issued a charge memo dated 26.11.2007, alleging the petitioner's involvement in excessive loading of a tanker bearing No.AP31U2529. The petitioner was suspended on 10.09.2007. On the basis of the said charge, an enquiry was initiated after appointing the Enquiry Officer and a Presenting Officer. The Enquiry Officer has recorded the statements of the witnesses on behalf of the management and also took into consideration the documents as submitted.

14. The petitioner was also granted ample and fair opportunity for participating in the proceedings, it was open for the petitioner and the defence assistant to cross examine the witnesses who were examined on behalf of the respondents, however, the petitioner had refused to cross examine by denying to participate in the enquiry proceedings when examination of MW.2, MW.3 and MW.4 was taken up by the Enquiry Officer. The reason assigned by the petitioner for not participating in the enquiry proceedings is that the defence assistant requested the respondents to permit the petitioner and the defence assistant to visit the site and see the tanker. Such a request could have been made by the petitioner and his defence Assistant after completely participating in the enquiry proceedings and demonstrating the necessity of visiting the site and checking the tanker. In the present case, the petitioner evaded cross-examination of the MW.2 to MW.4.

15. The scope of this Court to go into the aspect of the quality of evidence is concerned, it is a settled preposition of the Administrative law that the constitutional Courts cannot re-appreciate the evidence and assume the role of the appellate authority over the disciplinary authority. The constitutional Courts can certainly set aside the punishments awarded by the disciplinary authorities, subject to satisfaction that the punishment imposed is shockingly disproportionate to the charges framed. Such interference would be necessary in cases where there is no evidence at all.

16. On the facts of the present case, the disciplinary authority has considered the available material on record and held the petitioner guilty of misconduct, finding that the charges levelled against the petitioner were proved. It is also undisputed that the petitioner chose to evade cross-examining the other material witnesses, and in such circumstances, the petitioner can claim no evidence or no quality evidence.

17. On these considerations, this Court is of the considered view that the petitioner has not made out any valid grounds for interfering with the impugned proceedings. Accordingly, the writ petition fails and is hereby dismissed.

18. Accordingly, the writ petition is dismissed. No costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.