Gujarat High Court

Ganpatsinh Roopsinh vs District Superintendent Of Police on 16 April, 2024

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     C/SCA/12451/2012                             JUDGMENT DATED: 16/04/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12451 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed                  NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          GANPATSINH ROOPSINH
                                 Versus
                DISTRICT SUPERINTENDENT OF POLICE & ORS.
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 16/04/2024

                             ORAL JUDGMENT

1. By way of present petition under Article 226 of the

Constitution of India, the petitioner has prayed for the

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following reliefs :

"(A) YOUR LORDSHIPS may be pleased to issue writ of Certiorari, order or direction, directing the order dt.24.12.2008 and the order dt.26.06.2009 and the order dt. 27.10.2009 passed by the Punishment Authority, Appellate Authority and Revision Authority respectively are illegal, improper, arbitrary and contrary to the evidences on record and be further pleased to direct the findings recorded by the Inquiry Officer is illegal, improper, perverse and contrary to the evidences on record.

(B) YOUR LORDSHIPS may be further pleased to direct the respondents to reinstate the petitioner on his original post with continuity of service alongwith all consequential benefits with full backwages.

(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as are deemed firm in the interest of justice."

2. The brief facts giving rise to the present petition are as

under :

2.1 The petitioner was working with the respondent

department as a Wireless Operator at Nabipur Police Station

since 2002. The petitioner was having unblemished service

record with the respondents and he was never served with any

kind of charge or Memo during his service tenure with the

respondents. However, by order dated 24.12.2008, the

petitioner came to be dismissed from the service for so-called

charges and after conducting the so-called inquiry. Being

aggrieved and dissatisfied with the same, the petitioner had

approached the appellate authority by way of preferring an

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appeal, which came to be rejected by the appellate authority

vide order dated 03.02.2009. Being aggrieved and dissatisfied

with both the orders, the petitioner had again approached the

respondent No.3 herein by way of appeal, which also came to

be rejected vide order dated 27.10.2009.

2.2 It is the case of the petitioner that, the petitioner was

served with the order of suspension on 26.06.2008 and

thereafter, he was served with the charge-sheet alongwith the

intimation regarding the appointment of Inquiry Officer and

commencing the inquiry. Thereafter, the respondent authority

by letter dated 19.07.2008 appointed the Inquiry Officer. It is

the case of the petitioner that during the course of inquiry, the

respondents had not given proper opportunity to the

petitioner, some relevant documents asked by the petitioner

were also not provided to the petitioner. The Inquiry Officer

had also not conducted the inquiry by challenging the

principles of natural justice and thus, the inquiry proceedings

conducted by the Inquiry Officer was in total violation of

principles of natural justice.

2.3 It is further the case of the petitioner that by letter dated

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25.10.2008, the petitioner had filed his reply before the Inquiry

Officer clarifying all the averments and denying the so-called

charges alleged against the petitioner. The said reply filed by

the petitioner was not taken into consideration by the Inquiry

Officer while recording the findings. It is the case of the

petitioner that without providing the relevant documents and

without considering the reply filed by the petitioner, the inquiry

conducted by the Inquiry Officer was contrary to the principles

of natural justice and also the so-called show cause notice

dated 15.11.2008 issued by the respondent authorities.

Thereafter, the petitioner had filed a detailed reply dated

27.11.2008 to the so-called show cause notice.

2.4 It is the case of the petitioner that without considering

the replies filed by the petitioner, the Inquiry Officer has

recorded the findings against the petitioner. That, the Inquiry

Officer had deliberately not considered the the reply filed by

the petitioner and had also not recorded the findings as a

neutral person. That, the Inquiry Officer had acted as an

employee of the respondent authority and therefore, without

considering the averments made in the reply and without

discussing the evidence and without recording the findings

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regarding the collaboration of the evidence with the charges,

the Inquiry Officer has recorded the findings in the inquiry

report. Thus, the findings recorded by the Inquiry Officer are

illegal, improper, perverse and contrary to the principles of

natural justice and therefore also, the said findings recorded

by the Inquiry Officer are not tenable in the eye of law. It is the

say of the petitioner that on this ground alone, the punishment

imposed by the respondent authority upon the petitioner is

required to be quashed and set aside and the petitioner is

entitled to be reinstated on his original post with continuity of

service alongwith consequential benefits with full back wages.

2.5 Feeling aggrieved and dissatisfied with the orders passed

by the respondent authorities, the petitioner has preferred the

present petition under Article 226 of the Constitution of India

with the aforesaid prayers.

3. Heard learned advocate Mr.P.C. Chaudhary, appearing on

behalf of the petitioners and learned Assistant Government

Pleader Ms.Dharitri Pancholi, appearing on behalf of the

respondent - State Authorities.

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4. Mr.Chaudhari has submitted that during the course of

departmental inquiry, the Inquiry Officer has neither followed

the principles of natural justice nor he has referred the

evidence which is in favour of the petitioner nor the inquiry

officer has referred and relied and given any cogent reason

while coming to the conclusion that the charges levelled

against the petitioner were proved and therefore, the

impugned findings recorded by the Inquiry Officer is without

any base and without any reason and the same dehorse the

provisions of law and therefore, the inquiry itself is bad in law.

He has submitted that there is no iota of evidence and no any

departmental inquiry or show-cause notice issued to the

petitioner during his six years of service and his spotless

career was ruined. He has further submitted that the

respondent authority has not examined the material witness

namely, bootlegger whose statement is referred and relied

upon by the Inquiry Officer while passing the impugned order

and has not given an opportunity to cross-examine the

witness. He has further submitted that the Inquiry Officer has

not corroborated the evidence which is led before the Inquiry

Officer which supported the case of the petitioner and

therefore, the order passed by the Inquiry Officer is illegal,

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arbitrary and unreasonable.

4.1 Learned advocate Mr.Chaudhari has submitted that the

Appellate Authority while exercising powers under the

appellate jurisdiction has not recorded any independent

findings and merely referring and relying upon the findings

recorded by the Disciplinary Authority has mechanically

passed the order while dismissing the appeal. He has further

submitted that, against the said order of appellate authority,

the petitioner had preferred revision application before the

revisional authority i.e. Director General of Police,

Gandhinagar. Even the revisional authority has also passed the

order in mechanical manner without considering the records

and without considering the evidence which is recorded during

the course of inquiry. Nonetheless, the learned advocate for

the petitioner has submitted that thus, the impugned orders

passed by all the three authorities are against the principles of

natural justice and without giving any opportunity to defend

the case before the disciplinary authority and without giving

any opportunity to examine the witness, and therefore, the

impugned orders passed by the respondent authorities are

erroneous, arbitrary, unjust and illegal and the same deserve

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to be quashed and set aside.

4.2 In support of his submissions, the learned advocate

Mr.Chaudhary has referred and relied upon the decision of the

Hon'ble Apex Court in case of S.N. Mukherjee Vs. Union of

India, reported in [1990] 4 SCC 594, more particularly

paragraphs 34 and 35, which read as under :

"34. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.

35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording

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of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."

4.3 Mr.Chaudhary has therefore, submitted that the Hon'ble

Apex Court has considered the submissions in paragraph 34

that in case where the disciplinary authority has not followed

the principles of natural justice during the disciplinary inquiry

and not considered the evidence in its true and proper spirit,

then the inquiry itself is erroneous and arbitrary and the same

deserves to be quashed and set aside.

5. As against that, the learned AGP Ms.Pancholi has

opposed the present petition and submitted that the petitioner

has challenged the orders in the year 2012 i.e. almost after

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three years from the date of the order passed by the revisional

authority and therefore, there is a huge delay in filing the

captioned petition and hence, only on the ground of delay and

latches the present petition deserves to be dismissed. She has

referred to the affidavit-in-reply filed on behalf of the

respondent No.1, more particularly paragraphs 6 onward and

submitted that thought the petitioner was given sufficient

opportunity of hearing during the course of inquiry, the

petitioner had chosen not to examine the concerned witness

and therefore, now at this stage while challenging the

concurrent findings recorded by all the three authorities while

exercising the jurisdiction under Article 226 & 227 of the

Constitution of India, this Court has very limited scope to

interfere in the findings recorded by the disciplinary authority

after evaluating the evidence of the witnesses after going

through the records and after considering the submissions of

the delinquent petitioner, therefore, at this stage, this Court

cannot interfere in the findings recorded while exercising

jurisdiction under Article 226 & 227 of the Constitution of India.

5.1 Learned AGP Ms.Pancholi has further submitted that the

petitioner was personally heard by the appellate authority i.e.

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the Superintendent of Police, Bharuch on 12.12.2008 and after

considering the statements made by the petitioner in his reply

and after considering the records and proceedings of the

disciplinary inquiry and the order passed by the disciplinary

authority, the appellate authority has passed the final order on

24.12.2008 for terminating the services of the petitioner, which

is subsequently confirmed by the revisional authority. She has

further submitted that considering the serious charges levelled

against the petitioner, this Court may not interfere in the

findings recorded by the disciplinary authority.

5.2 With regard to scope of interference in service matters

relating to the order of punishment passed by the disciplinary

authority, the learned AGP Ms.Pancholi has referred and relied

upon the decision of the Hon'ble Apex Court in case of Union

of India and Others Vs. P. Gunasekaran, reported in

[2015] 2 SCC 610, wherein, in paragraphs 12 to 20, it has

been observed and held as under:

"12.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the

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Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, many of the above principles have been discussed and it has been concluded thus: AIR 1963 SC 1723:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not

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violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

15. In State of Andhra Pradesh and others v. Chitra Venkata Rao, the principles have been further discussed at paragraph-21 to 24, which read as follows:

"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials thatan offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that

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behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and (1975) 2 SCC 557 capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.

22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that

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the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.

23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan.

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

16. These principles have been succinctly summed-up by the living

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legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh. To quote the unparalled and inimitable expressions: (1977) 2 SCC 491

"4. .... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."

17. In all the subsequent decisions of this Court upto the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu, these principles have been consistently followed adding practically nothing more or altering anything.

18. On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

"Article-I was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri P. (2014) 4 SCC 108 Gunasekaran, provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. ..."

19. The disciplinary authority, on scanning the inquiry report and

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having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

5.3 Learned AGP Ms.Pancholi has emphasized upon the

observation made in paragraph 20 above with regard to

integrity meaning thereby moral uprightness and honesty, and

since the petitioner was in disciplinary force, it is a prime

requirement with regard to integrity here in the present case it

is the charge with regard to integrity, and therefore, the

present petition be dismissed and no interference is required

to be called for in the impugned orders.

6. I have heard the learned advocate appearing for the

respective parties and perused the material placed on record.

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The controversy involved in the present petition run in nutshell

is that, while exercising jurisdiction under Article 226 & 227 of

the Constitution of India, whether this Court can interfere in

the concurrent findings recorded by the disciplinary authority

and confirmed by the appellate authority and subsequently

further confirmed by the revisional authority, whether it is

permissible to interfere in the findings recorded based upon

the departmental inquiry relying upon the evidence led before

the Inquiry Officer, whether the impugned order passed by the

disciplinary authority deserves to be interfered by this Court

and whether the impugned orders passed by all the three

authorities are in consonance with the settled principle of law

or not. On perusal of the record and proceedings of the present

petition, it is an admitted fact that the petitioner was

appointed in the year 2002 and within 6 years he was involved

in such a serious charge levelled against him. It is also an

admitted fact that the petitioner was given full opportunity at

the time of departmental proceedings even before the

appellate authority and after hearing the delinquent petitioner,

the authority had passed the impugned order.

6.1 It is pertinent to note herein that, while the petitioner was

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working as Unarmed Police Constable at Nabipur Police

Station, at that time, the concerned P.I. had received

telephonic instructions from his higher ups with regard to carry

out raid at the place of the bootlegger near Kavithagam

Kanyashala and before the Police Sub-Inspector and other staff

members reach the place of the said bootlegger, the present

petitioner passed the information to the bootlegger and when

the raiding team approached the place of incident near

Kavitha, the bootlegger had destroyed all the evidence and

material with regard to the offence which was alleged and

therefore, with regard to the integrity the charge is levelled

against the present petitioner. It is also pertinent to note

herein that, after considering the evidence led before the

Inquiry Officer during the course of departmental inquiry, the

Inquiry Officer found the present petitioner guilty for the

alleged charge and misconduct and therefore, the Inquiry

Officer had made a report to the disciplinary authority and the

disciplinary authority had passed the impugned order of

punishment which was subsequently confirmed by the

appellate and the revisional authorities. It was submitted by

the learned advocate for the petitioner that the concerned

witness namely, bootlegger was not examined by the

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respondent authority during the course of departmental inquiry

and therefore, has urged before this Court that there was

lacuna in the departmental inquiry and there was no evidence

as out of 10 witnesses, 6 witnesses were from the police

department itself and 4 were independent witnesses and none

of the witnesses have supported the case of the department

and therefore, there was no any reason to believe the

evidence of those witnesses while passing the impugned order

by the disciplinary authority.

6.2 The law is now well settled that the onus of proof lies

upon the delinquent as observed by the Hon'ble Apex Court in

case of State Bank of India Vs. A.G.D. Reddy, reported in

[2023] SCC OnLine SC 1064, wherein, the Hon'ble Apex

Court has observed and held as under :

"Onus of proof

28. Having considered the above, we are constrained to conclude that the charge of the Bank, that the inspection was not carried, stood established. Then it was for the respondent to show, as undertaken by him, what his response to the allegation was.

29. It is well settled that, in a disciplinary proceeding, the question of burden of proof would depend upon the nature of the charge and the nature of the explanation put forward by the respondent. In a given case, the burden may be shifted to the respondent depending upon the explanation. [See Orissa Mining Corporation and Another vs. Ananda Chandra Prusty, (1996) 11 SCC 600, Para 6].

30. Here the specific charge was with regard to a series of named

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units, periodical inspections were not carried out. To support the charge, witnesses were examined and on the request through his defence representative, the Enquiry Officer has directed the presenting officer to produce the inspection records. The Enquiry Officer specifically asked the defence representative to mention the inspection registers in respect of the units which are required. The defence representative specifically makes a request for the inspection records in respect of the units mentioned in the charge sheet. The Enquiry Officer directs the presenting officer to examine the request and records, if available, be given. Thereafter, ithas come on record that the Presenting Officer produced the inspection register for the relevant period for perusal of the Enquiry Officer and the defence representative. On this, the defence representative stated that they would respond, after going through the documents. In the written submissions filed, a grievance is raised that the records pertaining to inspection were produced at the fag end of the enquiry. We are not impressed with the submission since, it was after the production of the inspection register that the defence representative of the respondent had stated, that they willrespond after going through the said documents. No response was forthcoming. Neither from the records nor at the hearing has it been demonstrated as to how the charge of failure to conduct the inspection was countered by the respondent. The records sought being made available, the onus did shift to the respondent to show that the charge was untenable."

6.3 It is now settled that if the delinquent fails then he could

have examined those witnesses which are referred and relied

upon by the delinquent, but here in the present case, the

petitioner has not made any request with regard to examining

the said witness of bootlegger. It would be appropriate to refer

to the observations made by the Hon'ble Apex Court in case of

Orissa Mining Corporation and Another Vs. Ananda

Chandra Prusty, reported in [1996] 11 SCC 600, wherein,

it has been observed and held in paragraph 6 as under :

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"6. On a consideration of the totality of the facts and circumstances of the case including the nature of charges we are not inclined to interfere in the matter. The position with respect to burden of proof is as clarified by us hereinabove viz., that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation. For example take the first charge in this case. The charge was that he made certain false notings on account of which loans were disbursed to certain ineligible persons. The respondent's case was that those notings were based upon certain documents produced and certain records maintained by other employees in the office. In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis of wrong notings made by the respondent."

6.4 So far as the scope of interference by this Court in case

of quantum of punishment is concerned, the same is also

discussed by the Hon'ble Apex Court in case of Chennai

Metropolitan Water Supply and Sewerage Board and

Others Vs. T T Murali Babu, reported in [2014] 4 SCC

108, wherein, the Hon'ble Apex Court has observed and held

as under :

"31. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter

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proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will.

32. The learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.

33. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip[18]: -

"18....In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders

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which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same."

We respectfully reiterate the said feeling and restate with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.

34. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do. 35. Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside leaving the parties to bear their respective costs."

6.5 Even this Court has considered in number of matters that

the scope of interference in concurrent findings recorded by

the disciplinary authority and confirmed by the appellate

authority / revisional authority, the High Court while exercising

jurisdiction under Article 226 & 227 of the Constitution of India

has very limited scope. Even the judgment referred and relied

upon by the learned advocate for the petitioner, ultimately, the

Hon'ble Apex Court has dismissed the petitioner of the

delinquent concerned employee. and therefore, the present

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