S.K.Bhalla vs United India Insurance Co. Ltd.& ...
2013 Latest Caselaw 2720 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 3298/1997
%                                                         2nd July, 2013

S.K.BHALLA                                                 ......Petitioner
                          Through:       Mr. R.K.Kapoor, Ms. Shweta Kapoor and
                                         Ms. Rekha Giri, Advocates.


                          VERSUS

UNITED INDIA INSURANCE CO. LTD.& ANR.              ...... Respondents

Through: Mr. A.K.De, Mr. Rajesh Dwivedi and Mr. Zahid Ali, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner Sh. S.K.Bhalla who was visited

with the punishment of removal from service of the respondent no.1-employer-

United India Insurance Company Ltd. in terms of the conclusions and findings by

the departmental proceedings.

2. After the departmental proceedings were concluded, Enquiry Officer gave

his detailed report dated 24.7.1992. Disciplinary Authority accepted the report in

terms of its order dated 21.1.1993. The Appellate Authority by its order dated

5.11.1993 dismissed the appeal of the petitioner.

3. Before going to the facts of the case one needs to remind oneself on the

scope of hearing in a petition under Section 226 of the Constitution of India which

challenges orders passed in the departmental proceedings. It is now settled law

that Courts will interfere with the orders passed by the Departmental Authorities

only if the said orders are illegal and violative of rules of the organization or are

perverse or are violative of the principles of natural justice or are violative of the

Doctrine of the Proportionality.

4. There were three charges against the petitioner. Charges 1 and 3 were not

too serious. It is the second Article of Charge which pertains to the petitioner

accepting fees in cash from the students of the Government Girls Senior Secondary

School No.2 at Kidwai Nagar, New Delhi, where the petitioner was deputed for

teaching, which is really the main Article of Charge.

5. Before proceeding further, it is also relevant at this stage to note an

extremely important aspect. This aspect is that the petitioner has, in spite of

opportunity granted, led no evidence. Neither the petitioner examined any witness

nor did the petitioner stepped into the witness box to orally depose in his favour.

The petitioner quite clearly therefore did not have the moral courage to depose in

his favour but in fact did not have the courage of conviction to stand the test of

cross-examination. In my opinion, in cases, where the department leads evidence

of its witnesses and proves its case by oral depositions and through documentary

any evidence, it is ordinarily incumbent on the charged employee to appear in the

witness box and lead his evidence, failing which, ordinarily there is no reason to

disagree with the findings of the Departmental Authority.

6. Let me now set out the imputation of misconduct of facts qua the three

Article of Charges, and the same read as under:-

"Article I: Shri S.K.Bhalla while functioning as Administrative Officer in the year 1990 in divisional office VI, New Delhi applied for a loan for purchasing two wheeler and the Regional Office sanctioned the loan for Rs. 12,900 vide Letter NO.DRO:GA:VKS:N:700:90 dated 7.9.90. On getting the loan sanctioned, Sh. S.K.Bhalla requested the divisional office to arrange for Band Draft for Rs.16764/- being the invoice value of the two wheeler in the name of the dealer M/S Sandeep auto, Cannought Place New Delhi, from whom Sh. S.K.Bhalla had submitted the quotation. Sh. S.K.Bhalla agrred (sic) to pay the Company an amount the of Rs.3,864/-towards the deference of the amount between the Invoice price of the vehicle on the loan amount sanctioned by the company. Accordingly, Sh. S.K.Bhalla gave two cheques viz. cheque No. 347911 dated 5.9.90 and cheque No. 0740754 dated 11.9.90 for Rs. 3254/- and Rs.610/- respectively. Out of the two cheques given to the company by Sh. S.K.Bhalla the second one viz. 0740754 dated 11.9.90 drawn on Andhra Bank, Ghaziabad bounced as A/c number intentionally changed on the cheque by Mr. Bhalla. The account No.4136 holder Mr. Bhalla altered the account number as 3136 and issued the cheque to the office which was latter returned unpaid by the Bank. This Shri S.K.Bhalla issued a defective cheque with a malicious intention to defraud the company knowing fully well that the account number belonged to a different person and it will be dishonoured by the Bank. Article II: Shri S.K.Bhalla while working as Administrative Officer in Divisional Office VI, New Delhi, during the year 1990 was on deputation to Government Girls Senior Secondary Schools No.2 Kidwai

Nagar, New Delhi to teach General Insurance Subjects as per Instructions of the Regional Office Delhi vide Letter No.DRO:PER:90:1767 dated 22.8.90 while on deputation to the said school, Sh. S.K.Bhalla collected an amount of Rs.6,324/- from 62 students of 11th and 12th standard at the rate of Rs.102/- per head under the pretext of getting them life membership of Delhi Insurance Institute. Sh. S.K.Bhalla was not having any authority to collect any money from the students on behalf of the Delhi Insurance Institute. Sh. S.K.Bhalla did not remit to the Delhi Insurance, Institute the said amount of Rs.6,324/- which he had unauthorisedly collected, but misappropriated the same. Thus Shri S.K.Bhalla acted in a manner unbecoming of a public servant and prejudicial to the interest of the Company.

Article III:

a) While working as Administrative Officer, in Divisional Office VI, New Delhi during the year 1990, Shri S.K.Bhalla submitted alongwith his letter dated 6.3.90, a machine printed receipt with serial no. 89/6097535 of Unit Trust of India claiming to have deposited an amount of Rs.6,000/- as Investment in ULIP by way of cheque no. 019463 dated 1.3.90 drawn on Vijaya Bank, New Krishna Park, New Delhi with a purpose to avail income-tax relief. Accordingly the same was taken into account by the Divisional Office while computing the Income Tax payable by Sh. S.K.Bhalla for the relevant financial year. The aforesaid cheque was returned by the bank unpaid on account of in- sufficient funds in the bank a/c.

Hence no investment in ULIP was truly made through this cheque knowing fully well that the Account did not have adequate funds to clear the cheque, Mr. Bhalla issued the cheque for Rs.6000/- to Unit Trust of India and produced a receipt thereof to Divisional Office VI, New Delhi for availing undue benefit for self under Income Tax Provisions.

b) While working as Administrative Officer, Divisional Office VI, New Delhi, Shri S.K.Bhalla alongwith his letter dated 6.3.90 produced to the office, a Depositor's copy of the National Savings Scheme account claiming to have deposit an amount of Rs.20,000/- in the Krishna Nagar Post Office towards National Savings Scheme by way of cheque No.019469 dated 5.3.90 drawn on Vijaya Bank, New Krishna Park, New

Delhi with a view to avail Income Tax relief. The said amount was taken into account by Divisional Office VI, New Delhi while computing Income Tax payable by Shri S.K.Bhalla for the financial year 1989-90. The aforesaid cheque was returned by the bankers unpaid on account of insufficient funds in the account. Hence no investment in National Savings Scheme account was truly made through this particular cheque by Sh. S.K.Bhalla. Knowing fully well that the above cheque would bounce due to insufficient balance in the bank account-Sh. S.K.Bhalla deposited the said cheque with Krishna Nagar Post Office and produced the depositor's copy of the receipt to Divisional Office VI to avail undue benefit to self by way of relief under Income Tax provisions. Thus by the above acts of misconduct/misbehavior, Sh. S.K.Bhalla committed irregularities and acted in a manner unbecoming of a public servant and prejudicial to the interest of the Company within meaning of Rule 3(1),(i), 3(1 (iii) read with Rule 4(1), 4(5), 4(16) and 4(20) of General Insurance (Conduct,Discipline and Appeal) Rules, 1975."

7. Article-1 of the Charges therefore really is of a minor nature of a

cheque being deliberately dishonoured by the petitioner. Article-3 is also not too

serious a charge because it pertains to taking income tax benefit without honouring

the cheque on the basis of which income tax benefit was taken. If these were the

only two Articles of Charges and the petitioner was imposed the penalty of

removal from service, I would have been inclined to consider the removal from

service as violative of the Doctrine of Proportionality, however, Article 2 is a

serious and major misdemeanor because it pertains to financial irregularity. No

doubt the financial irregularity is not of a substantial amount of money, but, it

pertains to taking fees in cash from the girl students of the Government Senior

Secondary School No.2, Kidwai Nagar, New Delhi and thereafter in failing to

deposit the same with the institute with which it was to be deposited. It would be

best if I reproduce the relevant portion of the findings and discussions of the

Enquiry Officer on this aspect and the same reads as under:-

"Article-II, Shri S.K.Bhalla while working as Administrative Officer in Divisional Office-VI, New Delhi, during the year 1990 was on deputation to Government Girls Senior Secondary School No.2, Kidwai Nagar, New Delhi to teach General Insurance Subjects as per instructions of the Regional Office Delhi vide letter No. DRO:PER:90:1767 dated 22.8.90. Whilst on deputation to the said action, Shri S.K.Bhalla collected an amount of Rs.6,324/- from 62 students of 11th and 12th standards at the rate of Rs.102/- per head under the pretext of getting them Life Membership of Delhi Insurance Institute. Shri S.K.Bhalla was not having any authority to collect any money from the students on behalf of the Delhi Insurance Institute, the said amount of Rs.6,324/- which he had unathorisedly collected, but misappropriated the same. Thus Shri S.K.Bhalla acted in a manner unbecoming of a public servant and prejudicial to the interest of the Company.

The gist of defence, the assessment of evidence and the findings of the enquiry are as under:-

Shri S.K.Bhalla in his defence has totally denied having accepted Rs.6,324/- from 62 students for making them members of Delhi Insurance Institute. He has further stated that if at all money was paid, the school authorities were not interested in squaring up the matter referring to the anonimous call received by the Vice Principal in his cross examination. As per the document MD-6 i.e.letter dated 19.12.90 written by the Principal Mrs. U.R.Varma to Divisional Manager, United India Ins. Co. DO-VI, New Delhi, it is complained that Shri S.K.Bhalla has collected money amounting to Rs.6,324/- from students of Class XIth &XIIth @ Rs.102/- each for getting them life membership of Delhi Insurance Institute without the knowledge of school authorities. This is also confirmed by Mr. U.R.Verma, Principal, Govt. Girls Sr. Sec. School No.2, Kidwai Nagar, New Delhi-110023 in her witness on 12.2.92 (referred to as MW-2).

The document MD-6 is supported by document MD-60 signed by students of class XIth &XIIth.

One of the student now apprentice in United India Insurance Co. 80 Mehrauli Ms. Despanwite Guha referred to as MW-4 in her witness has confirmed that she alongwith other students of class III F had signed the complaint letter defendant19.12.90 i.e. MD-60. She has also confirmed having paid Rs.102/- to Shri S.K.Bhalla as he had asked them to enroll as a member of Delhi Insurance Institute. She has also not got the refund of money of Rs.102/- paid to Shri S.K.Bhalla. The charge of the CE that Ms. Deepanwite Guha is an employee of the Company and on probation is not relevant as she was the ex-student of the school and had signed the letter MD-60 & MD-6d there. Her witness is independent.

As per the letter defendant 22.12.90 of delhi Insurance Institute i.e MD-7, this amount of Rs.6,324/- is not deposited with them. MW-2 i.e. Mrs. U.R.Verma, Principal, Govt. Girls Senior Secondary School has also stated in her witness that the money has been collected by Shri S.K.Bhalla without her knowledge/permission. She has also stated that Shri S.K.Bhalla once showed a cheque stating that he will disburse cash to students against amount collected by him. But the amount has not yet been returned to the student. Shri S.Ramkrishnan MW-3 in his witness has confirmed having received telephonic complaint from the principal of the school stating that Shri Bhalla had collected money from students and the letter No. nil dt. 19.12.90 MD-6 was delivered to him by the Principal. Shri S.K.Bhalla CE in his defence has charged MW-2 of taking sleeping pills during school hours is not relevant to the charge. The complaint has been made by students about the collection of money. He has also referred to the anonimous call in his cross examination that the money collected from students may be accepted. It is clear that anonimous call was done by Shri Bhalla or at his instance. His charge that school authorities were not interested in squaring up the matter has not effect as he could have discussed this matter with his Divisional Manager Shri S. Ramakrishnan and the money could have been even deposited in office for paying back to school authorities. It could in the alternative be deposited with Delhi Insurance Institute. By stating that school authorities were not interested in squaring up the matter at all the money was paid, is an indirect admission of the charge.

Thus from the evidences of witness about and the defence it is concluded beyond doubt that Shri S.K.Bhalla collected the amount of Rs.6,324/- from the students with the malafide intention of misappropriating the entire money. The charge thus stands proved."

8. A reading of the aforesaid portion of the report of the Enquiry Officer

shows that department led evidence of its witnesses and produced documents. It

was established on record that petitioner collected fees in cash from the students.

The Principal of the school complained about the same in writing. One of the

students of the school, who thereafter became an employee of the respondent no.1,

also stepped into the witness box and confirmed the factum of taking fees in cash

by the petitioner. During the enquiry proceedings the written complaint signed by

the students was also filed and proved which showed that the petitioner had taken

fees in cash from the students but did not deposit the same further in the institute

with which the same was to be deposited. Once the department led evidence, it

was in my opinion, in the facts of the present case, mandatory for the petitioner

herein to step into the witness box and also to lead his evidence. Petitioner did

neither as already stated above. Not having the moral courage to lead evidence and

not having the courage and conviction to stand the test of cross examination would

strongly go against the petitioner. Once the management led evidence, both oral

and documentary, onus of proof shifted upon the petitioner and the petitioner failed

to discharge the burden upon him as he failed to lead any evidence whatsoever. I

do not find therefore that the findings and conclusions of the Departmental

Authorities can in any manner be said to be perverse for being interfered with by

this Court, and interference can only be on the ground of perversity because this

Court while hearing petition under Article 226 of the Constitution of India does not

sit as an Appellate Court to re-apprise the finding of facts and conclusions arrived

at by the Departmental Authorities.

9. On behalf of the petitioner, the following arguments were strenuously

canvassed before me:-

(i) The findings with respect to the second Article of Charge suffers from grave

infirmity because the petitioner had complained against the Principal of the school

that that person used to take sleeping pills during the school hours. It is also

argued that since a student who had became an employee of the respondent was a

witness, consequently, the deposition of such witness being of an interested

witness, must not be believed.

(ii) The orders passed by the Departmental Authority and the Appellate

Authority are not speaking orders and therefore, principles of natural justice have

been violated. Qua the order of the Disciplinary Authority, it is argued that

Disciplinary Authority has not given its own findings and therefore, the order must

fail on this ground. Qua the Appellate Authority's order, it is argued that the

Appellate Authority has set down the points argued on behalf of the petitioner but

while dealing with the same, justice have not been done.

(iii) The orders in question suffer and are hit by Doctrine of Proportionality

because the charges against the petitioner were not so grave for being visited with

the extreme punishment of removal from service.

10. So far as the first argument that the Disciplinary Authority must itself

pass a detailed speaking order, reliance is placed upon Rule 26 of the relevant rules

of the respondent and which are General Insurance (Conduct, Discipline and

Appeal) Rules 1975. This Rule 26 reads as under:-

"Rule 26: Action on the inquiry report (1) The competent authority, if it is not itself the inquiring authority, may, for reasons to be recorded by it in writing remit the case to the inquiring authority for fresh or further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 25 as far as may be.

(2) The competent authority shall, if it disagree with the findings of the inquiry authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the competent authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in rule 23 should be imposed on the employee it shall, notwithstanding anything contained in rule 27 make an order imposing such penalty.

(4) If the competent authority having regard to its findings on all or any of the article of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned."

11. On the basis of the aforesaid Rule, it is argued that the Disciplinary

Authority was bound to pass a speaking order in terms of the ratio of the judgment

of the Supreme Court in the case of Vasudeo Vishwanath Saraf Vs. New

Education Institute and Others, AIR 1986 SC 2105. Paras 15 to 17 of this

judgment are relied upon to argue that the original authority as also the Appellate

Authority are bound to record reasons failing which the orders must fail on account

of violation of principles of natural justice.

12. In my opinion though there can be no doubt to the legal proposition of

there existing a speaking order, yet, this argument urged on behalf of the petitioner

is misconceived for the reasons given hereafter. Firstly, the requirement of giving

reasons as per Rule 26 and sub-Rules 1 and 2 are only when the Disciplinary

Authority disagrees with the findings of the Enquiry Officer. It is in such

circumstances that detailed reasoning has to be given by the Disciplinary Authority

because it is disagreeing with the findings and conclusions of the Enquiry Officer.

In my opinion, sub-Rules 3 and 4 cannot be read to mean that the Disciplinary

Authority cannot adopt the findings and conclusions of the Enquiry Officer, once

the Enquiry Officer has given a detailed speaking report, equivalent to a judgment,

dealing with all the aspects of the case then the Disciplinary Authority can surely

adopt those reasons. In the present case, the Disciplinary Authority in my opinion

has done no wrong by simply accepting the detailed findings and conclusions

contained in the report of the Enquiry Officer, and which is so done as per the

order passed by the Disciplinary Authority. There is no law, and no such law

could be pointed out to me on behalf of the petitioner in spite of specifically so

asking that a Disciplinary Authority must give its independent findings and

conclusions with respect to each Article of Charge, and that the Disciplinary

Authority is not empowered to adopt the detailed findings and

conclusions/speaking report of the Enquiry Officer.

13. So far as the argument that the Appellate Authority has not dealt with

the contentions raised by the petitioner, I find that the argument is not correct. I

note that the Appellate Authority has in fact passed a more detailed order than the

Disciplinary Authority and the relevant portion of the order of the Appellate

Authority reads as under:-

"The following are the points raised in his Appeal:

1. The Charged Officer has contended that the procedure adopted by the Enquiry Officer, wherein the proceedings took place in the presence of every witness of the management had resulted in miscarriage of justice and was violative of the principles of natural justice.

2. The Charged Officer has contended that he had not been given an opportunity as per Class 25, Sub-Clause 15 of General Insurance (Conduct, Discipline & Appeal) Rules, 1975, which provides that the Enquiry Officer is under obligation to question the Charged Officer on the circumstances appearing against him in the evidence for the purpose of enabling him to explain his case.

3. The Charged Officer has contended that the Office Order removing him from service was perveraive of the principles of natural justice and disproportionate to the charges alleged against him.

4. The Charged Officer has contended that no offence involving moral turpitude or fraud or dishonestly in connection with the business of the Company has been committed by him within the premises of the Company. I herewith discuss the above points raised by the Charged Officer in his Appeal.

1. I am not inclined to agree that this either vitiated the enquiry proceedings in any manner or it has resulted in mis-carriage of justice.

2. Inasmuch as enough opportunity was provided to the Charged Officer to introduce his witnesses which he did not avail hence I am not inclined to take a view that it has in any way vitiated the enquiry proceedings.

3. I do not agree with the contention of the Charged Officer as the misconduct committed is grave in nature and involves moral turpitude. Since the misconduct/irregularities committed by Shri S.K.Bhalla are grave in nature, I find no reason to interfere with the order of the Competent Authority and hence, in exercise of powers conferred on me under Rule 37(2) (c) (i) of General Insurance (Conduct, Discipline & Appeal) Rules,1975. I hereby reject the appeal preferred by Shri S.K.Bhalla.

(O.N.VENKATARAMAN) GENERAL MANAGER APPELLATE AUTHORITY"

14. The conclusions of the Appellate Authority given above shows that

first conclusion is really an answer to the first two points which is raised on behalf

the petitioner because the Appellate Authority has concluded that there is no

miscarriage of justice. I agree because the Supreme Court has said that principles

of natural justice are not inflexible hidebound rules. In the judgment of State Bank

of Patiala and Ors. Vs. S.K. Sharma (1996) 3 SCC 364 Supreme Court has held

that when the issue of violation of principles of natural justice comes up, the Court

has to examine this argument under two heads. One is when there is a complete

violation of principles of natural justice i.e a case of no hearing at all. Supreme

Court has said that in such cases the immediate consequence is that because there

is absolutely no hearing at all, the order passed would have to fail. The Supreme

Court has however, clarified that if there is a violation only of a facet of the

principle of natural justice; such as not giving all documents or not considering an

argument or some other such technical violation; it is necessary that prejudice to

the charged-officer must be proved. In the present case, Appellate Authority has

noted qua the first two arguments urged on behalf of the petitioner that there is no

miscarriage of justice. Though the judgment of the Supreme Court in the case of

S.K. Sharma (supra) is not cited, the substance of the ratio of the judgment in the

case of S.K.Sharma (supra) is effectively relied upon. Merely because the other

witnesses may be present during the course of enquiry, cannot mean that on this

ground itself the petitioner was in any manner prejudiced unless specific instances

are averred of the alleged grave prejudice. This stand/factual position is totally

missing in the present case. Also, counsel for the petitioner has conceded before

me that different witnesses have been examined on different dates and if that be so,

it makes no difference if other witnesses are present during examination of other

witnesses, though of course the case of the department is that they were sitting at

some distance away from where the evidence was recorded in big hall. Surely if

evidence is recorded on different dates theoretically the management could have

shown the statements already recorded to the other witnesses. I thus do not find

any miscarriage of justice or grave prejudice to the petitioner for holding that the

principles of natural justice have been violated.

15. Another argument urged on behalf of the petitioner is that the

respondent has failed to comply with Rule 15 of the Rules and which requires that

Enquiry Officer after completion of enquiry proceedings must put the aspects

against the charged official/petitioner as found in the enquiry to the charged

official, and which is alleged was not done in the facts of the present case. In order

to appreciate this argument, the relevant Rules 13 to 15 are required to be referred

to, and the same read as under:-

"(13) When the case for the competent authority is closed, the employee may be required to state his defence, orally or in writing as he may prefer. If the defence is made orally; it shall be recorded and the employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any appointed.

(14) The evidence on behalf of the employee shall then be produced. The employee may examine himself in his own behalf if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provision applicable to the witnesses for the competent authority.

(15) The Inquiring Authority may, after the employee closes his case, and shall, if the employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the employee to explain any circumstances appearing in the evidence against him."

16. In my opinion, firstly, it was necessary for the petitioner before

arguing this aspect to make a specific averment of violation of Rule 15. This

factual averment was necessary because only then the respondent would have had

an opportunity to either bring the departmental record for the departmental

proceedings or would have filed its factual response in the counter-affidavit. At

this stage of final arguments an oral stand of the violation of principles of natural

justice on the basis of Rule 15 cannot be argued to prejudice the respondent. This

argument is therefore rejected.

Also, the argument urged on behalf of the petitioner that the petitioner has

led evidence because the petitioner gave his statement in terms of Rule 13 as stated

above is a misconceived argument because the statement under Rule 13 is really a

statement in the nature of pleadings because Rule 14 makes it clear that after the

statement under Rule 13 is recorded, a charged official has to examine himself as

also lead his own evidence. There is quite clearly a difference in the language

between Rules 13 and 14 quoted above and I refuse to agree with the arguments

urged on behalf of the petitioner that the statement under Rule 13 should be

considered as evidence. It is the statement led under Rule 14 which is the evidence

and the statement under Rule 13 is really in the nature of pleading by which there

is denial of the charges by a charged official. I therefore hold that the argument

that the petitioner has led evidence by making the statement under Rule 13 is a

misconceived argument and the same is accordingly rejected.

17. Coming on to the issue that findings with respect to the Article of

Charge no.2 is to be faulted with because the Principal of the Girls Senior

Secondary School No.2 was alleged to be taking sleeping pills as alleged by the

petitioner, all that is required to be stated is that the petitioner has not had the basic

minimum courage to even step into the witness box and depose on oath on this

aspect. Merely making a statement under Rule 13 is not sufficient. Petitioner

should have at least stepped into the witness box and stood the test of cross-

examination if the petitioner was so sure of his stand. In any case, in my opinion,

nothing would turn upon this because there also existed and proved on record of

the Enquiry Officer a signed statement of various students of the school of the

petitioner having taken moneys in cash for being deposited further to an institute

but which was not done. Petitioner if he was interested could surely have led

evidence by calling any of the students who made this written complaint of the

petitioner having accepted fees in cash, but as stated above, petitioner had led no

evidence whatsoever. Also, the Enquiry Officer has rightly recorded that the

petitioner himself took up a case that on account of lack of time and the illness of

the petitioner, petitioner did not have the opportunity to square up the issue by

returning the money to the students or depositing the same with the institute and

that this stand of the petitioner rightly has been taken as an admission of the

petitioner by the Departmental Authorities of having collected fees in cash from

the students. In any case, challenge under Article 226 of the Constitution of India

to the departmental proceedings can only succeed if the findings are perverse but in

the present case I do not find that findings arrived at by the Enquiry Officer are in

any manner perverse for this Court to interfere with.

18. On the issue of Doctrine of Proportionality, I have already stated that

Articles 1 and 3 really would have persuaded me to not confirm the penalty of

removal of service, however, Article -2 is undoubtedly a financial irregularity, that

too with students of Girls Senior Secondary School and once the character of the

petitioner is doubted, with respect to a financial irregularity, an organization such

as the respondent cannot be unjustified in doubting the petitioner for his

continuation of services. Unless and until the judicial conscience of Court is

shocked by the punishment imposed, the Doctrine of Proportionality cannot come

into play. If two views are possible, Courts will not interfere. In my opinion, in

this case since two views are possible on the basis of second Article of Charge

found against the petitioner. I am not inclined to interfere by exercising the

discretionary and extraordinary jurisdiction under Article 226 of the Constitution

of India.

19. I therefore do not find any merit in the petition, which is accordingly

dismissed, leaving the parties to bear their own costs.

JULY 02, 2013                                        VALMIKI J. MEHTA, J.
ib