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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORGINAL CIVIL JURISDICTION
WRIT PETITION NO.2537 OF 2003
T.S.Kolhatkar }
Omkar Apartments
S.L.Raheja Hospital Marg }
New Police Lane, Mahim (W)
Mumbai-400 016. } .. Petitioner
vs
1. Air India }
Santacruz (East)
Mumbai-400 029.
}
2. M.R.Sannakki
General Manager (PC & F)
Air India, Santacruz (East) }
Mumbai-400 029.
3. Ms Deepa Kanchan
Dy.General Manager (Engg) }
Air India
Santacruz (East)
Mumbai-400 029. }
4. Mr.Babu Peter }
Director of Engineering
Air India,Santacruz (East)
Mumbai-400 029.
}
5. Mr.Ambokar
Dy.General Manager (MPD)
Air India }
Santacruz (East)
Mumbai-400 029. .. Respondents
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Mr.Arshad Shaikh I/b Sanjay Udeshi & Co for Petitioner
Mr.S.K.Talsania Sr.Advocate with Ms.Kavita Anchan
I/b M.V.Kini & Co for Respondents
CORAM : A.A.SAYED AND
M.S.KARNIK, JJ
JUDGMENT RESERVED ON: 28th July 2017
JUDGMENT PRONOUNCED ON: 15 November, 2017
JUDGMENT (Per M.S.Karnik, J)
1. The challenge in this Petition filed by the Petitioner under Article 226 of the Constitution of India is to an order dated 23.12.2002 awarding punishment of suspension for two days on loss of pay and wages. By this order, it is directed that the Petitioner would be paid subsistence allowance at 50% of his basic pay plus D.A.allowance for the first six months and thereafter at 75% and that the Petitioner will not be entitled to any pay over and above this during the said suspension period.
2. The facts of the case in a nutshell are as under :
The Petitioner was served with the charge sheet along with suspension memo alleging non-performance of duties ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 3 wp2537.03 and that the Petitioner was indulging in sexual harassment of women. The charge sheet is dated 20.2.2001. It would be material to re-produce the relevant portion of the chargesheet in respect of the charges levelled against the Petitioner.
" You are attached to the PPD Main Office to discharge dues and responsibilities assigned to you effectively and are required to sit and work in the open half of PPD Main Office. However, it is reported that you are not carrying out your duties and responsibilites efficiently and instead indulge in sexual harassment against women employees by making sarcastic and abusing remarks whenever they pass though the PPD Office Main hall. At around 14.30 hours on 13th Feb 2001 when Ms Deepa Kanchan, Dy.DM (PPD) was passing through the PPD Main office, you made some abusing remarks at her in the presence of officials and staff who were present at that relevant ti,e. When she objected to this, you started shouting and absuing her. Since your behaviour was not in keeping with the decency, she telephoned Mr.Ajit Manvatkar, Asst.Officer (Security) for help and requested him to send a Security officer so that the nuisance from you is stopped. Mr.Kishore Prabhu, Sr.Security Inspector immediately came to PPD Office when you had stopped shouting at her.
It is further reported by Ms.Deepa that about two months back, when she was standing in front of Mr.B.D.Adsul, Sr.Manager Admin, you had made threatening and assaulting action towards her and Mr.Sunita Panchal, when you were warned by Ms.Deepa not to repeat such an action in future. It is further reported that you are also in the habit of making sarcastic remarks against ladies staff/lady executive, shouting at top of your voice, yawning loudly and making peculiar noices, start murmuring and uttering whenever lady staff pass by you. When this was objected you had replied rudely to ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 4 wp2537.03 lady staff stating that "Everyone has the right to make any non-sense statement and nobody can question him." This has resulted in disturbing the peaceful office environment in the PPD office and output from the staff members had adversely aaffeced due to your sexual harassment to them."
3. The Petitioner by his letter dated 26.2.2001 denied the charges. According to him the same are concocted and fabricated. By a letter dated 2.3.2001 the Petitioner was informed that the said charges were based on a complaint dated 13.2.2001 made by one Mrs.Deepa Kanchan to the Deputy General Manager (Engineering). The Petitioner submitted his reply on 14.3.2001. By a communication dated 2.4.2001 the Petitioner was informed that his reply to the charge sheet was not satisfactory and hence Mr.P.Lakra General Manager, Material Management Department was appointed as an Enquiry Officer to conduct an inquiry against the Petitioner. The Petitioner had reservations about Mr.Lakra conducting the enquiry.
4. By a communication dated 30.5.2001 the second respondent decided to appoint Mr.A.A.Ambokar Deputy General ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 5 wp2537.03 Manager, Materials Management Department as an Enquiry Officer with a view to give the Petitioner a fair opportunity of representing his case. The inquiry proceeded but the Petitioner had some reservations in the manner in which the inquiry proceedings were progressing which he expressed by a communication dated 30.10.2001.
5. Mr.Ambokar the Enquiry Officer submitted a report dated 5.11.2002. The parties have relied upon a compilation of the documents which are produced on behalf of the respondents in relation to the record of the inquiry.
6. We have gone through the Inquiry Officer's report. Based on a written complaint received from Ms.Deepa Kanchan that the petitioner passed abusive remarks against a lady staff, the Enquiry Officer recorded the evidence of Ms.Deepa Kanchan, Mr.B.D.Adsul Senior General Manager (Administration), Mrs.D'Silva Senior Progress Chaser that of Mr.M.J.George Dy.General Manager (PPD),Mrs.Sunita Panchal Peon PPD, ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 6 wp2537.03 Mrs.Mahalakshmi Senior Steno PPD of Mr.R.S.Deshmukh Senior Technical Officer.
7. Mrs.Kanchan in her evidence deposed about murmuring and peculiar noises which the Petitioner made as well as remarks the Petitioner passed against her. She in her evidence has also narrated the allegations that the Petitioner was showing beating action at her and making peculiar noises, removing his shoes and showing shoes at her.Evidence of Ms.Deepa Kanchan is corroborated by Mr.B.D.Adsul and other witnesses. Based on the evidence, the Enquiry Officer has recorded the following findings:
"From the evidences of the complainant/witnesses Mrs. Deepa Kanchan and other Management witnesses like Mr.B.D.Adsul, Mrs.D'Silva, Mrs.Mahalakshmi and Mr.Deshmukh their examination and cross-examination, it is established that Mr.Kolhatkar was in altercation with Ms Deepa Kanchan. He had shouted loudly. Hence, assistance of Security was called for. Mr. Kolhatkar has uttered the works "Kya nakhra karati hai" at Ms Deepa Kanchan which has been deposed by all the witnesses except Mr.George. He was in the habit of yawning loudly, making peculiar noises, murmuring. He was making mockery to other staff. He has also made a beating action at Mrs.Deepa Kanchan and Mrs.Sunita Panchal by foot-ruler. He has also insulted the modesty of woman by passing bad remarks on Ms.Deepa Kanchan. Mrs Panchal has also deposed that Mr.Kolhatkar used to stare at her sarees and sandals by bending down and used to tease her. Once he showed a bundle ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 7 wp2537.03 of notes saying "Come we will go for an outing in autorickshaw.
In view of the above, the following charges levelled against Mr Kolhatkar stand established."
8. Learned counsel for the Petitioner submitted that the charges levelled against the petitioner are vague and therefore, he was not able to effectively defend the same. In his submission, remarks made to a woman even if sarcastic do not constitute sexual harassment. In his submissions, neither in the charge sheet nor in the alleged complaint it is stated as to what constitutes peculiar noises and how a murmur (which is a low indistinct sound as per dictionary meaning) can be disturbing or can be considered to be sexual harassment. The learned counsel inviting our attention to the evidence recorded during the course of the inquiry contended that the evidence on record is not sufficient to prove the charges of misconduct levelled against the Petitioner.
9. Learned counsel for the Petitioner submitted that upon perusal of the evidence following can be noticed :- ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 8
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a) All the witnesses were subordinate to the complainant;
b) The complaint letter was signed by the signatories as per the descending order of their rank;
c) The alleged oral complaints made by the other witnesses to the complainant differs substantially from the version given by the complainant herself;
d) That not a single person has given any complaint in writing inspite of stating that I have created an atmosphere that was intolerable ;
e) The witneses are not sure as to the positioning of the various persons at the time of the alleged incident and have given clearly contradictory replies;
f) Every single witness has given evasive replies;
g) That during the evidence of each subsequent witness the case is sought to be improved upon based on the cross examination of the previous witness.
10. Learned counsel has also submitted that Regulation 63 A of the Air India Employees' Service Regulations is illegal, arbitrary and ultra vires of the Constitution of India. In his submission, clause 63 A (1) (ii) has the effect of enlarging the penalties set out in clause 62. According to him, the respondent cannot, impose any penalty other than those set out in clause 62. According to him, the petitoner has been imposed minor penalty of suspension for 2 days on loss of pay and allowances. The maximum penalty awardable is suspension on ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 9 wp2537.03 loss of pay and allowances not exceeding ten days. The Petitioner during the pendency of the enquiry was under suspension from 20.2.2001 till the date of imposition of the penalty i.e. 23.12.2002 for almost a period of 22 months. In the said period, he received 50% of his basic pay plus dearness allowances and other compensatory allowance for first six months and thereafter 75% of his basic pay and allowances. The loss of pay therefore of 50% for the first six months and 25% for the subsequent period amounts to 16 months of suspension without wages.
11. In the submission of the learned counsel the imposition of minor penalty itself indicates that he should not have been suspended for such a prolonged period and therefore, suspension pending inquiry is illegal. The learned counsel submitted that the Petitioner having undergone suspension for such a long time, there was no occasion for the respondents to again place him under suspension for two days over and above what he has already undergone. According to ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 10 wp2537.03 the learned counsel, the Petitioner has suffered 16 months of suspension pending enquiry which is much more than the punishment of two days awarded.
12. Learned senior counsel for the respondents on the other hand pointed out that the inquiry was conducted after complying with the principles of natural justice. In his submission, evidence has been recorded and the Petitioner has been given adequate and ample opportunity to cross-examine witnesses. Based on the evidence on record, the Enquiry Officer has come to a finding that the charges of misconduct levelled against the Petitioner stands proved. The charges levelled against the Petitioner are very serious. The Petitioner has been punished with suspension of two days which is proportionate to the charges proved. In his submission the Petitioner is let of lightly, though the charges proved are serious.
13. In the submission of the learned senior counsel Regulation 63 of the Air India Employees' Service Regulations cannot be said to be arbitrary, illegal or violative of the constitutional provisions in any manner. In his submission, ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 11 wp2537.03 clause 63 (A) (1) (ii) does not have the effect of enlarging the penalties set out in clause 62.
14. The learned senior counsel relies upon the decision of the Apex Court in the case of BALVANTRAI RATILAL PATEL VS STATE OF MAHARASHTRA AIR 1968 SUPREME COURT 800 to contend that if there is no express term relating to payment during such suspension or if there is no statutory provision in any Enactment or Rule, the employee is entitled to full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith. This principle applies with equal force in a case where the government is an employer and a public servant is an employee.
15. He also relied the Apex Court judgment in the case of STATE OF ORISSA through its Principal secretary, Home ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 12 wp2537.03 Department vs BIMAL KUMAR MOHANTY (1994) 4 Supreme Court Cases 126 which reiterates the view taken in BALVANTRAI RATILAL PATEL SUPRA.
16. In his submission, the suspension pending an inquiry cannot be inter-linked to the punishment imposed after completion of the inquiry. The learned senior counsel for the respondents submits that there is voluminuous evidence on record and after considering the report of the Enquiry Officer the punishment has been imposed.
17. We have considered the submissions made by the learned counsel appearing for the parties. The learned counsels invited our attention to the relevant portions of the evidence recorded during the course of the inquiry. We find that the inquiry has been conducted in accordance with the principles of natural justice and the Petitioner has been given an adequate opportunity to defend his case and cross-examine the witnesses. The Enquiry Officer has come to a conclusion based on evidence on record that the charges levelled against the ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 13 wp2537.03 Petitioner are proved. It is not possible for us in exercise of our Extra-Ordinary Jurisdiction under Article 226 of the Constitution of India to re-appreciate the evidence on record and arrive at our own independent conclusion. After going through the inquiry proceedings, we are satisfied that the findings arrived at by the Inquiry Officer are based on evidence and cannot be said to be perverse. We also do not agree with the learned counsel for the Petitioner that the charges levelled against the Petitioner are vague. In fact, we find that the charges are specific and having correctly understood the charges, the Petitioner has proceeded to participate in the inquiry and cross-examined the witnesses. The Enquiry Officer recorded the findings of fact and a minor punishment of suspension of two days of loss of pay and allowances is awarded. We do not find any reason to interfere with the impugned order awarding minor punishment.
18. Now, let us examine the contention of the Petitioner as regards challenge to Regulation 62, 63 (A) (1) (ii) of the Air India Employees Service Regulations. It would be material to ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 14 wp2537.03 reproduce the said Regulations :
62. PENALTIES:
The following penalties may for good and sufficient reason and as herein after provided be imposed on an employee namely:-
(a) MINOR PENALTIES:
a) Censure;
b) to a lower stage in the time scale;
c) withholding of increments with or without cumulative effect;
d) suspension on loss of pay & allowances not exceeding 10 days;
e) recovery from pay or such other amount as may be due to him towards the whole or part of any pecuniary loss caused to the company by the employees' negligence, default or any breach of any regulations or orders ;
f') withdrawal of passage benefits or/and Medical benefits in full or part for the period specified;
(Emphasis supplied) 63 (A).TREATMENT OF THE PERIOD OF SUSPENSION :
1) When the employee under suspension is reinstated, the Competent Authority may grant him the following pay and allowances for the period of suspension:::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 15
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(i) If the employee is exonerated and not awarded any of the penalties mentioned in Regulation 62, the full pay and allowances which he would have been entitled, if he had not been suspended, less the subsistence allowance already paid to him; and
(ii) if otherwise, he will not be entitled to any additional payment over and above the subsistence allowance already paid to him for the period of suspension.
(2) In cases falling under sub-clause (i) of Clause (1) of Regulation 63 (A) the period of absence from duty shall be treated as period spent on duty. In case of faling under sub-clause (ii) of Clause (1) of Regulation 63 (A) shall not be treated as period spent on duty."
64.SUBSISTENCE ALLOWANCE:
1) An employee under suspension shall be entitled to draw subsistence allowance equal to 50% of his basic salary, provided the Disciplinary Authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In addition, he shall be entitled to Dearness Allowance/Foreign Allowance as admissible on susbsistence allowance and any other compensatory allowance excluding Productivity Allowance as well as Performance Linked Incentive (PLI) and other flight related allowance that may be specified in this behalf in the order of suspension which he was in receipt of on the date of suspension.
2) Where the period of suspension exceeds six months, the Authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of first six months as follows :
(i) The amount of subsistence allowance may be increased to 75% of basic salary and allowance thereon, if in the ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 16 wp2537.03 opinion of the Authority, the period of suspension has been prolonged for reason not directly attributable to the employee under suspension;
(ii) the amount of subsistence allowance may be reduced to 25% of basic salary and the allowance thereon if in the opinion of the Authority the period of suspension has been prolonged due to the reasons to be recorded in writing, directly attributable to the employee subordinate to the Competent Authority empowered in this behalf;
a) With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
b) With effect from the date of his conviction, if in the event of a conviction, for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction.
Regulation 63 (A) (1) (i) is specific.
Regulation 63 (A) (1) (i) contemplates that if an employee is exonerated and not awarded any of the penalties mentioned in Regulation 62, the full pay and allowances which he would have been entitled, if he had not been suspended, less the subsistence allowance already paid to him. Rule 63 (A) (1) (ii) which would be applicable to the Petitioner's case contemplates that he will not be entitled to any additional payment over and above the subsistence allowance already paid to him for the period of suspension.
19. The contention of the learned counsel for the Petitioner that the same is arbitrary and irrational and violative ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 17 wp2537.03 of the constitutional provisions, in our opinion, is unfounded for the below mentioned reasons.
20. It would be material to quote the observations made by the Apex Court in the case of BALVANTRAI RATILAL PATEL Para 4 of the said decision reads thus:
(4) "The general principle therefore is that an employer can can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory or provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore, that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 18 wp2537.03 during the period of suspension. On general principles therefore the government like any other employer would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings. This may be called interim suspension The government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit This will be suspension as a penalty. As we have already pointed out, the question as to which amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection."
21. A useful reference can also be made in the case of STATE OF ORISSA VS BIMAL KUMAR MOHANTY (1994) 4 SUPREME COURT CASES 126 which reiterated the view of BALVANTRAI RATILAL PATEL. We reproduce para 13 of the said decision as under :
13. " It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and 5 1993 Supp (3) SCC 483: 1994 SCC (L&S) 67: (1993) 25 ATC commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 19 wp2537.03 pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge. "
22. Learned counsel for the Petitioner has relied upon the decision of this Court in the case of MIRAJ TALUKA GIRNI KAMGAR SANGH VS THE MANAGER SHREE GAJANAN WEAVING MILLS SANGLI 1991 II CLR 714 to contend that if ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 20 wp2537.03 the charge-sheet fails to stand up this test, the rest of the domestic enquiry is useless and is merely an eye-wash as the said charges cannot be said to be charge sheet in the eyes of law.
23. Having regard to the law laid down by the Apex Court and upon going through the Regulations, we find that the Regulations clearly contemplate that pending inquiry, an employee can be placed under suspension. As to how the period of suspension is to be dealt with in respect of the employee who is found guilty of misconduct and upon penalty imposed on him, is dealt with by Regulation 63 (A). The suspension pending an inquiry is a consequence of initiating departmental proceedings against the employee concerned. The aspect regarding what punishment should be imposed by the disciplinary authority after the Inquiry Officer has submitted his findings is provided by Regulation 62. Regulation 62 (A) (d) provides "suspension on loss of pay & allowances not exceeding 10 days." The imposition of minor penalty of loss of pay cannot be inter-linked with section 63 (A) which provides for treatment of the period ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 21 wp2537.03 of suspension as the same operates in a different and distinct field. Merely, because a minor penalty of two days suspension has been imposed as a consequence of proved mis-conduct cannot affect the treatment of the period of suspension only on the ground that the employee concerned has remained under suspension for unduly long period of time which in this case is 16 months. Undoubtedly, the charges levelled against the Petitioner are serious in nature. Imposition of penalty of suspension up to a period of 10 days, is one of the minor penalty contemplated by Regulation 62. It is only in case where an employee is exonerated and not awarded any of the penalties mentioned in Regulation 62 that he would be entitled to full pay and allowances, which he would have been entitled were he not suspended.
24. In the present case,as the penalty of two days suspension, which is a minor penalty, has been imposed on the Petitioner, the respondents are well justified in deciding how the period of suspension should be treated. It is not the quantum of punishment imposed but the factum of punishment imposed is ::: Uploaded on - 15/11/2017 ::: Downloaded on - 16/11/2017 02:00:07 ::: Rng 22 wp2537.03 decisive for treatment of the period of suspension under Regulation 63 (A).
25. In these circumstances, we do not find that Regulation 63 (A) (1) (ii) is in any manner arbitrary or unconstitutional. As noted earlier, the Inquiry Officer has arrived at a finding of fact based on the evidence on record.It is not possible for us to re-appreciate the evidence on record in exercise of our Extra-Ordinary jurisdiction under Article 226 of the Constitution of India. The view taken by the Enquiry Officer is based on evidence and the same cannot be said to be perverse or palpably erroneous. We also do not find the punishment is disproportionate to the proved misconduct.
26. In this view of the matter, we do not find any merit in the Petition and the same is accordingly dismissed with no order as to costs.
(M.S.KARNIK, J) (A.A.SAYED J)
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