Ashok Hiralal Parikh vs Senior Divisional Manager
2023 Latest Caselaw 5509 Guj

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       C/LPA/522/2023                                    ORDER DATED: 01/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO.               522 of 2023

        In R/SPECIAL CIVIL APPLICATION NO. 5665 of 1995

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                                ASHOK HIRALAL PARIKH
                                       Versus
                             SENIOR DIVISIONAL MANAGER
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Appearance:
MR.DIPAK B PATEL(3744) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
           AGARWAL
           and
           HONOURABLE MR. JUSTICE N.V.ANJARIA

                                 Date : 01/08/2023

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. Dipak Patel for the appellant and learned advocate Mr. Yogi Gadhia for the respondents.

2. In the present Letters Patent Appeal filed by the appellant-original petitioner, the challenge is directed against the judgment and order dated 26.08.2022 of learned Single Judge, whereby the Special Civil Application came to be dismissed, the Court refusing to set aside the order dated 26.07.1993 of the Senior Divisional Manager, Disciplinary Authority, whereby the penalty of removal from service was imposed on the appellant in

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terms of Regulation 39(i) (F) of the Life Insurance Corporation of India (Staff) Regulations, 1960.

3. The petitioner was Development Officer at Career Agent Branch of the Life Insurance Corporation, who was subjected to charge-sheet dated 20.12.1991 alleging that he had committed misconduct of temporary misappropriation for the amount of Rs.2,725/-. The Disciplinary Authority, upon inquiry, passed the order of removal dated 26.03.1993.

3.1 This order came to be challenged by the appellant-petitioner by filing Special Civil Application No. 1451 of 1994, which was withdrawn on 28.12.1994, as the petitioner petitioner wanted to make representation to the authorities. The representation pursuant to the said order came to be rejected by communication dated 25.04.1995, which decision was also prayed to be set aside in the writ petition.

4. Learned Single Judge noticed the nature of charges levelled against the petitioner, which resulted into holding a departmental inquiry and consequential punishment of removal from service. The charges included collection of blank cheques for renewal of premium of the policy, though for such collection, the delinquent was not authorised. It was also as charge that in respect of particular

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cheque given towards one policy, the amount was struck off and it was used for another policy. There were four instances of misuse of cheques in similar fashion.

4.1 In light of the facts and aspect that the inquiry had held the charges to be proved and the punishment aspect was also considered by the disciplinary authority before passing the order of removal, the scope of judicial review in respect of the orders of penalty passed pursuant to holding departmental inquiry, held in accordance with rules of natural justice would not permit the court to interfere. It was observed that punishment aspect was not liable to be interfered with by the Court unless the punishment is found to be shockingly disproportionate.

4.2 After considering the decisions on the point, learned Single Judge observed to record the findings,

"...a perusal of this case if to be looked into in which the grave charge was that the petitioner was working on a sensitive post in public sector undertaking and he took a cheque of Mr. Chawla struck off the policy number return on the reverse side of cheque and presented it for payment of premium of Mr. Panchal. He then took the cheque of Mr. Panchal and use it for 4 new proposals and this having been unearthed a serious complaint was made by Mr.Chawla on 08.05.1991 as well as by another person Mr. Panchal on 06.10.9091 and as such when such kind of even temporary misappropriation has taken place, which fact has

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been admitted by way of a mistake in his reply there is hardly any case made out by the petitioner to call for any interference in penalty."

4.3 It was highlighted that the factum of temporary misappropriation was admitted by the delinquent in his reply, recording thus further,

"It may be that same notings might have been secured by the petitioner but the same has not been acted upon nor has been admitted by the authority and the same is not forming part of the record. There is hardly any scope for the Court to rely upon the same and consider the request for substitution of penalty and hence, outrightly the Court is not inclined to accede to the request even if the same has not been possible to be placed by the authority."

4.4 What was harped by the learned advocate for the appellant, assailing the judgment and order of the learned Single Judge was that, it was only a temporary misappropriation and that the extreme punishment of removal from service was unwarranted. It was contended that the witnesses were not examined, therefore, there was breach of natural justice.

5. With regard to the above submission, it is to be noted that the petitioner was represented by one Shri C.P. Patel. The witness named Mr.L.M. Mehta examined by the presenting officer was offered for examination, but the petitioner refused to examine the same. Similarly, the witness of the presenting

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officer, one Mr. N.G. Shah was also refused to be cross-examined and the petitioner was offered such opportunity.

5.1 The petitioner had produced two letters dated 20.03.1992 and 19.03.1992 written by one Mr.R.L. Chawla and Mr.H.A. Panchal, who were named as defence witnesses. However, they did not remain present in the inquiry at any stage. Though the petitioner was given ample opportunity to examine the witness and produce his witnesses or evidence, he declined. The petitioner thus participated in the inquiry and conveniently chose not to examine the witness.

5.2 The scope of judicial review in respect of departmental proceedings was reiterated in Indian Oil Corporation Vs. Rajendra D. Hamalkar [(2022) 4 SCC 1]. The Court referred to the Wednesbury principle to observe that the scope of judicial review would remain limited. It was further observed that the question of quantum of punishment in the disciplinary matters is primarily for the disciplinary authority to consider and decide and the High Court in exercise of powers under Article 226 of the Constitution would play a limited role to be confined to the applicability of Wednesbury principles.

5.3 The proposition of law regarding limited scope for the writ court to interfere with the departmental proceedings was highlighted by the

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Supreme Court in Lucknow Kshetriya Gramin Bank v. Rajendra Singh [(2013) 12 SCC 372], the principles were summarised to be thus, which are rightly considered by learned Single Judge,

(i) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

(ii) The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

(iii) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

(iv) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

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6. The charges against the petitioner delinquent were proved in the inquiry by the disciplinary authority. Learned Single Judge examined the facts so as not to notice any perversity requiring interference. This Court would not sit in appeal over the findings and the decision of the competent disciplinary authority in imposing the punishment.

6.1 The petitioner was a Development Officer and while conducting himself on behalf of the Life Insurance Corporation, in the matters of taking life insurance policy from the customers, he could be said to be holding a position of trust. The nature of charges are such that it is not possible to view them with any leniency. In that view, the punishment of removal from service cannot be perceived to be disproportionate or one to be shocking to the conscience of the Court.

7. The reasons supplied and the view taken by the learned Single Judge could be said to be eminently legal and proper. No interference is called for. The appeal is dismissed.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J) BIJOY B. PILLAI