Gujarat High Court
B H Dave Since Deceased Through His Heirs vs State Of Gujarat on 20 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21266 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
No==============================================================
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B H DAVE SINCE DECEASED THROUGH HIS HEIRS & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS PRACHI UPADHYAY FOR MR VAIBHAV A VYAS(2896) for the
Petitioner(s) No. 1,1.1
MR ADITYA JADEJA AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 20/02/2024
ORAL JUDGMENT
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1. By way of present petition, under Articles 14, 16, 309
and 311 of the Constitution of India, the petitioner has
challenged orders dated 14.9.2005 and 14.6.2006 passed
by the Disciplinary Authority and Gujarat Civil Services
Tribunal and prayed inter alia that:-
"(A) quash and set aside impugned punishment order
dated 14.9.2005 passed by the disciplinary authority
Annexure-A to this petition, and
(B) quash and set aside impugned order dated 14.6.2006
passed by the Gujarat Civil Services Tribunal, Annexure-
B to this petition, and
(C) direct the respondent authorities to grant all
consequential benefits to the petitioner, and
(D) award the cost of the petition, and
(E) grant any other relief or pass any other order which
the Honourable Court may consider as just and proper
in the facts and circumstances of the case, and
(F) pending admission and final disposal of this petition
the Honourable Court may be pleased to stay the further
implementation and operation of the orders dated
14.9.2005 and 14.6.2006 and further be pleased to
reinstate the petitioner in service."
2. The brief facts giving rise to present petition are that
the petitioner was initially appointed as an Instructor
with the Employment and Training Department on
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8.8.1977. Thereafter, the petitioner was appointed as
direct recruit Store Keeper and accordingly the petitioner
joined the service on 5.3.1983 and in due course the
petitioner was promoted to the post of Forman (Class-III)
on 24.11.1992. The petitioner was also given additional
charge of Principal (Class-II)
2.2 Thereafter, the petitioner was served with a charge
sheet dated 18.10.2003, for the misconduct alleged to
have been committed by the petitioner. The petitioner
had denied the charges leveled against him and had
accordingly responded to the said charge sheet vide his
defense statement dated 17.4.2004. The petitioner had
also submitted his defense statement before the Inquiry
Officer on 13.7.2005.
2.3 Thereafter, by order dated 15.9.2004 the respondent
authority appointed C.D. Patel as an Inquiry Officer who
submitted the inquiry report on 1.8.2005, holding that the
charges leveled against the petitioner were partly proved.
Out of the seven charges leveled against the petitioner,
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two charges were held to be proved by the Inquiry
Officer. The Inquiry Officer has specifically observed that
there was no irregularity or misappropriation whatsoever.
2.4 The inquiry report was forwarded to the petitioner by
the respondent authorities along with the show-cause-
notice dated 12.8.2005. The said show-cause-notice was
responded by the petitioner on 3.9.2005. Based on the
report of the Inquiry Officer, the Disciplinary Authority
issued the punishment order dated 14.9.2005 imposing
the punishment of compulsory retirement from service
and the said order was given effect from 21.9.2005.
2.5 Against the said order of punishment, under the rules,
Appeal was filed by the petitioner before the Gujarat Civil
Services Tribunal and the same was mechanically dealt
with by the Tribunal, whereby the same was rejected vide
order dated 14.6.2006.
2.6 It is the case of the petitioner that there are number
of illegalities and improprieties in the initiation,
continuation and conclusion of the departmental inquiry
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culminating into punishment order dated 14.9.2005.
2.7 So far as the charge of supplying goods from a firm
namely M/s. Wagheshwari Traders, owned by a close
relative, at a higher price is concerned without prior
approval, the petitioner was issued a charge sheet on
25.8.2003, wherein after inquiry, punishment of stoppage
of two increments without future effect was imposed
upon the petitioner. It is pertinent to note that, M/s.
Wagheshwari Traders was on the list of Talala ITI even
before the petitioner was transferred there. All the
purchases were made in accordance with the procedure
prescribe by the head office after calling quotations from
various parties and after receiving approval from the
local stores purchase committee. The order was given by
the head of the department only after receiving approval
from the local stores purchase committee. The payment
was made thereafter, after complying necessary
formalities in that regard. On 27.1.2004, the petitioner
had demanded various documents which were necessary
and relevant for his defense, however, the petitioner was
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denied the copies of the said documents vide
communication dated 12.3.2004. Thereafter, also the
petitioner had demanded various documents which were
necessary and relevant for his defense, however, the
petitioner was denied the copies of the said documents.
Non-supply of those documents has materially prejudiced
the right of petitioner to defend himself. The petitioner
had objected the appointment of presenting officer vide
letter dated 11.10.2004 mainly on the ground that the
presenting officer has worked as preliminary inquiry
officer. The said -objection of the petitioner was not
accepted by the Inquiry Officer. Moreover, the petitioner
was not afforded an opportunity to examine the
presenting officer, though a request in this regard was
made by the petitioner vide letter dated 11.1.2005.
During the course of inquiry, persons who were not
shown as witnesses in the charge sheet were also
examined by the Inquiry Officer, inspite of a specific
objection of the petitioner in that regard. Under these
circumstances an attempt on the part of the authorities to
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retire the petitioner compulsory by way of punishment is
just to see that the petitioner is deprived of his legitimate
retirement dues, though even according to the authorities
the charges against the petitioner are not that grave,
which warrant removal or dismissal.
2.8 In view of the aforesaid facts, the petitioner has
preferred present petition and prayed for above
mentioned relief.
3. Heard Ms. Prachi Upadhyay, learned Counsel for
Mr. Vaibhav Vyas, learned Counsel for the petitioner and
Mr. Aditya Jadeja, learned Assistant Government Pleader
for the respondents.
4. Ms. Upadhyay, learned Counsel for the petitioner
has submitted that out of 7 charges levelled against the
present petitioner, the petitioner found guilty for charge
Nos. 2 and 3 and for the said charges, the petitioner was
imposed punishment vide order dated 31.5.2005. She has
submitted that by the said order of punishment, the
punishment of stoppage of two increments without future
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effect was imposed.
5. The order which is referred to and relied upon by
the learned advocate for the petitioner is at page 160 is in
connection with the chargesheet issued on 25.8.2003,
whereas in present petition the challenge of the
petitioner is the chargesheet dated 18.10.2003. In that
regard Ms. Upadhyay, learned Counsel for the petitioner
has submitted that as the petitioner was charged for the
similar allegations and once he was imposed minor
penalty by stoppage of two increments, the impugned
order is against the principles of natural justice and
therefore, the major punishment imposed upon the
petitioner is beyond the scope of the charge and inquiry.
She has submitted that the inquiry officer and the
disciplinary authority have exceeded beyond the scope of
inquiry and therefore, the impugned order under
challenge for imposing the punishment, deserves to be
quashed and set aside.
6. Ms. Upadhyay, learned Counsel for the petitioner
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has further submitted that prior to the date of
appointment of the petitioner in the institute, the goods
were purchased from M/s. Wagheshwari Traders owned
by the wife and son of the present petitioner and
therefore, it cannot be said that after appointment of the
petitioner the purchase committee started to purchase
the goods from M/s. Wagheshwari Traders and therefore,
also the impugned order, whereby the major punishment
imposed against the present petitioner is unjust, arbitrary
and deserves to be quashed and set aside.
6.1 It is also further contended by Ms. Upadhyay,
learned Counsel for the petitioner that it is not the case of
the respondent that there is any malpractice or any
irregularity committed by the petitioner while procuring
the goods from M/s. Wagheshwari Traders and therefore,
so far as the charge Nos. 2 and 3 are concerned, the
punishment imposed by the respondent is
disproportionate to the charge levelled against the
petitioner and thus, the impugned order of punishment
deserves to be quashed and set aside.
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6.2 In support of her submission, Ms. Upadhyay, learned
Counsel for the petitioner has referred to and relied upon
the judgment of the Hon'ble Apex Court in the case of
Bongaigaon Refinery & Petrochemicals Ltd. and
others vs. Girish Chandra Sarma reported in 2007
(7) SCC 206 more particularly paragraph No. 18 of the
judgment, which reads as under:-
"18. After going through the report and the finding
recorded by the Division Bench of the High Court, we
are of opinion that in fact the Division Bench correctly
assessed the situation that the respondent alone was
made a scapegoat whereas the decision by all three
committees was unanimous decision by all these
members participating in the negotiations and the price
was finalized accordingly. It is not the respondent alone
can be held responsible when the decision was taken by
the committees. If the decision of the Committee stinks,
it cannot be said that the respondent was alone stink, it
will be arbitrary. If all fish stink, pick one and say it
stinks only is unfair in the matter of unanimous decision
of the Committee."
6.3 Ms. Upadhyay, learned Counsel for the petitioner
has also referred to and relied upon the judgment of the
Hon'ble Apex Court in the case of Pawan Kumar
Agarwala vs. General Manager-II and appointing
Authority, State Bank of India and others reported
in (2015) 15 SCC 184, more particularly paragraph No.
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17, which reads as under:-
"17. The charge-sheet was issued on 28-10-2004 against
the appellant making 6 allegations against him and it is
undisputed fact that list of witnesses and the copies of
documents were not furnished to the appellant. b
Further, the disciplinary authority has reversed the
findings on Charges 3 and 5 without giving an
opportunity to the appellant to show cause in the matter
and, thereafter, the order of removal was passed by the
appointing authority on the advice of the CVO vide his
opinion dated 1-2-2006 and further it is brought on
record that similarly placed person, namely, Mr Pradeep
Kumar Das, the Manager of Hallydayganj Branch, who
has loaned the loan to one c Mr Tapan Kumar Sangma,
in his case they have imposed lesser punishment of
withholding one increment thereby making
discrimination in differently treating the appellant
herein, which is violation of Article 14 of the
Constitution of India."
6.4 In view of the above, Ms. Prachi Upadhyay, learned
Counsel for the petitioner has submitted that the
purchase work is done by the purchase committee,
wherein the petitioner is not a member of that purchase
committee and therefore, petitioner was made a
scapegoat by issuing a show-cause-notice.
6.5 Relying upon above two judgments, Ms. Prachi
Upadhyay, learned Counsel for the petitioner has
submitted that the impugned order of punishment is
harsh and is absolutely disproportionate to the charges
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leveled against the petitioner.
6.6 In view of the above, Ms. Prachi Upadhyay, learned
Counsel for the petitioner urges before the Court that the
petition deserves to be allowed and the impugned order
passed by the disciplinary authority and confirmed by the
appellate authority deserves to be quashed and set aside.
7. As against that Mr. Jadeja, learned Assistant
Government Pleader has relied upon the affidavit-in-reply
dated 11.12.2007 filed on behalf of the respondent and
more particularly paragraph Nos. 8 to 10, which read as
under:-
"8. I say and submit that the present petitioner was
charge-sheeted on 18-10-2003 which has been
replied by the present petitioner on 17-04-2004.
Then after inquiry was held and the inquiry officer
had submitted its report and the inquiry officer had
held that 7 charges which have been leveled
against the present petitioner out of which charges
No. 2 and 3 were held to be proved by the inquiry
officer. Pursuant to that the show cause notice has
been issued to the present petitioner and then
after the disciplinary authority had passed an order
of a compulsory retirement by way of punishment
which has been challenged by the present
petitioner by way of an appeal before the Gujarat
Civil Services Tribunal being No. 270 of 2005,
which has been decided by the Tribunal vide its
order dated 14-06-2006.
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9. I say and submit that the present petitioner has
raised a contention before this Hon'ble Court that
he had demanded the documents vide its letter
dated 27-01-2004 which has been denied by the
authority by letter dated 12-03-2004. I say and
submit that the same demand has been made by
the present petitioner vide its letter dated 27-07-
2002. A copy of the same is annexed hereto and
marked as Annexure R-I to this reply and it has
been replied by the authority dated 20-08-2002 and
these facts came on record by way of an inquiry
report which has been annexed at page 66 of the
petition by the petitioner. In this inquiry report in
internal page 8, para 6, at last para. This thing
makes it very clear that the present petitioner had
an opportunity to go through the record which has
been demanded by him and he had availed that
remedy at relevant point of time and hence he can
not raise a contention that the authority did not
supply the document which has been sought for.
10.I say and submit that the present petitioner has
raised a contention that the persons who were not
shown as witnesses in the charge sheet were also
examined by the inquiry officer. I say and submit
that the present petitioner did not give name of
those witnesses who have been examined by the
inquiry officer. It is nothing but a vague allegation
which has been made by the present petitioner and
this contention has not been raised before the
Tribunal also. Now before this Hon'ble Court this
contention cannot raise."
7.1 In view of the above, Mr. Jadeja, learned Assistant
Government Pleader for the respondent has submitted
that the petitioner has committed breach of the provision
of Rule 3(1)(1), 3(1)(2) and 3(1)(3) of the Gujarat Civil
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Services (Conduct) Rules 1971 and therefore, the
punishment imposed by the disciplinary authority and
confirmed by the appellate authority is in consonance
with the inquiry report. Mr. Jadeja, learned Assistant
Government Pleader has further submitted that after
going through the inquiry report of the inquiry officer and
after examination of the witnesses and cross-examination
of the witnesses, the disciplinary authority has rightly
come to a conclusion that the petitioner is facing serious
charges and therefore, the punishment of major penalty
was imposed under Rule 6 of the Gujarat Civil Services
(Discipline and Appeal) Rules, 1971 and there is no any
infirmity or discriminatory treatment to the petitioner and
therefore, present petition may not be entertained and
the same may be dismissed. Mr. Jadeja, learned Assistant
Government Pleader has further submitted that so far as
the scope and ambit of the Court in interfering in the case
of disproportionality of the punishment / quantum of
punishment is concerned, now law is very much settled
and therefore, the Court may not disturb the finding
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recorded by the disciplinary authority and confirmed by
the appellate authority.
8. I have perused the material and relevant papers
available on record. I have also gone through the
impugned order of disciplinary authority as well as
appellate authority and considered the submissions
canvassed by both the sides.
9. It appears that the petitioner has submitted written
submission / explanation on 17.4.2004 and also list of
witnesses were examined by the petitioner. After taking
into account all the relevant aspects, the inquiry officer
has submitted a report to the disciplinary authority and
disciplinary authority after considering relevant material
and the evidence recorded during the course of inquiry,
has passed punishment order dated 14.9.2005 whereby
the petitioner was found guilty for the alleged misconduct
under the provisions of Rule 3(1)(1), 3(1)(2) and 3(1)(3) of
the Gujarat Civil Services (Conduct) Rules1971. Against
the said order of imposing punishment, the petitioner had
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approached the appellate authority by way of preferring
departmental appeal as provided under the rules. After
examination of the evidence produced before the
appellate authority, the appellate authority confirmed the
order passed by the disciplinary authority vide order
dated 14.6.2006. The said appeal came to be dismissed by
appellant authority, after hearing at length the petitioner
and after evaluating the evidence placed on record.
10. At this stage, it is appropriate to take note of the fact
that the petitioner received chargesheet dated
18.10.2003 containing seven charges which read as
under:-
Charges:-
(1) Upon inspection in person by the Principal,
Industrial Training Institute, Junagadh on
01/06/2002 visiting the Industrial Training
Institute, Talala, following lacuna and
misappropriations are found against Mr. B.H.
Dave.
1. False vouchers of sanction regarding shifting
of goods, machinery, furniture, etc. to new
building at Ghusiya of I.T. Institute, Talala
have been prepared and debited.
2. He has committed misappropriations by
purchasing goods from a person belonging to
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his family - Wagheshwari Traders, Junagadh
at higher rate.
3. He has committed malpractice by creating
false rates of false ceiling and Kota Marble
Fitting in the Computer Batch of the institute.
By running Wagheshwari Traders at
Junagadh in the name of his wife Hansaben B.
Dave, he has misused the office by making all
the purchases from there from the month of
March, 2002 till April, 2002. Moreover, he
has withdrawn the amount of Rs.480/-
debiting voucher towards Identity Card by
making endorsement of 'Paid by me' and
'Received by me' on the letter pad of the
institute as well as on the letter pad of
Shivam Arts of C.I. Mr. G.M. Bhatt, Mechanic
Diesel, however, no Identity Cards have been
prepared.
4. As Shree Wagheshwari Traders is run by his
wife and the Gas Cutting Pliers supplied by it
was of 150 m.m. and it was not of 200 m.m.
and prescribed specification and therefore,
the signature was not put in the check and
found, he started to torture. The trainees
went on strike due to change in the time of
the institute. Moreover, it is stated in his
statement that the institute at Junagadh had
been opening irregularly and Mr. Karangia
was compelled to accept the goods supplied
by Wagheshwari Traders else he was
threaten to ruin his career.
5. He has not produced logbook of the vehicle of
the institute under one or other excuses
despite of frequent requests. Therefore, there
is an affirmation that he has misused the
vehicle of the institute.
6. Upon checking his travel bills after joining to
his duty at Talala on 02/12/2001, as he used
to travel for general matters besides
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meetings, it is obvious that training spot of
the institute would suffer and the issues of
the institute would not be redressed on the
spot.
7. The Stores Department of the institute made
entry on 27/03/2002 to supply the stock for
purchase within deadline of March-2002. The
said bill was produced without receiving the
said stock or with insufficient stock from the
party, wherein it was stated that no payment
shall be made until the payment is passed and
received to the Store Department. In
addition, it is stated that quotations without
the rate of labour for the fitting of Kota Stone
in the Computer Room are obtained from Mr.
Chavda and Mr. Khetani. Moreover, as per
the entry dated 28/03/2002 of Mr. Bhatt, CI,
Mechanic Diesel, it is given in order to get
refund of the money paid by him. Thus, the
person on the post of Instructor demands for
the refund after a long period i.e. after two
months by investing a big amount in the
institute and completing the work thereof,
which is suspicious.
Thus, looking to the entry of the Store
Department, it appears prima-facie that
though he did not come to the institute,
entries were made in the concerned
registered by pressurizing and intimidating
and got the bills passed. Thus, it appears
clear that the prescribed method has been
violated."
11. From the above, it appears that the charges levellled
against the petitioner are very serious in nature.
12. The controversy involved in present petition is that
whether the petitioner is liable for the major punishment
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imposed by the disciplinary authority while considering
the charges levelled against the present petitioner and
whether the punishment imposed by the authority is
disproportionate to the charges levelled against present
petitioner or not.
13 In my view, as per the provision under the Gujarat
Civil Services (Conduct) Rules 1971 more particularly
Rule 3(1), present petitioner, being a Principal of the
institution has not maintained the absolute integrity,
since he has not disclosed the fact before joining of his
duty that his wife and son residing in the same roof, are
doing the business in the name and style of M/s.
Wagheshwari Traders. The petitioner has also not
maintained the devotion to the duty and also not
maintained the decorum. It is his duty to disclose true
facts prior to joining of his duty. Therefore, I am of the
opinion that the petitioner is liable for the punishment, as
mentioned in the charge levelled against him. It is the
first and foremost duty of the government employee that
he cannot run the business or he cannot party to the
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business.
14. Herein present case, before joining of his duty the
petitioner was aware that his wife and son are running
the business in the name and style of M/s. Wagheshwari
Traders, who are supplying the goods to the institution
prior to joining of his duty then it is his duty, after joining
of the duty, to discontinue that practice. However, under
the guise and garb that there is a separate purchase
committee constituted and it is the duty of the committee
to look into the matter and therefore the allegation that
petitioner is not liable for the alleged misconduct, is not
supported from any evidence and it is crystal clear that
he himself is liable for the alleged misconduct.
15. So far as the scope and ambit of interference in the
quantum of punishment / findings recorded by the
disciplinary authority, confirmed by the appellate
authority is concerned, this Court cannot sit in the appeal
and cannot discuss details of the evidence which is
discussed by the disciplinary authority relying upon the
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report of the inquiry officer. Now, it is settled law in
catena of decisions that the High Court cannot sit in the
appeal over the decision of the disciplinary authority or
the appellate authority, who have discussed the evidence
at length in relation to the charge levelled against the
employee.
16. At this stage it is appropriate to take into account
relevant rules of Gujarat Civil Services (Conduct) Rules
1971. The said Rule i.e. Rule 3 reads as under:-
"3. General :-
(1) Every Government servant shall at all times -
(i) maintain absolute integrity.
(ii) maintain devotion to duty, and
(iii) do nothing which is unbecoming of a Government
servant.
Explanation :- A Government servant, who habitually
fails to perform a task assigned to him within the time
set for the purpose and with the quality of performance
expected of him, shall be deemed to be lacking in
devotion to duty within the meaning of clause (ii).
(2) No Government servant shall, in the performance of
his official duties or in exercise of the powers conferred
on him, act otherwise than in his best judgement except
when he is acting under the direction of his official
superior and shall, where he is acting under such
direction, obtain the direction in writing, wherever
practicable, and where it is not practicable to obtain the
direction in writing, he shall obtain written confirmation
of the direction as soon thereafter as possible.
(3) All departmental rules and orders in respect of the
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subject dealt with in these rules which have been
approved or may hereafter be approved by Government
shall in so far as they are not inconsistent with any
provisions of these rules, apply to Government servants
to whom they relate. Explanation :- Nothing in sub-rule
(2) shall be construed as empowering a Government
servant to evade his responsibility by seeking
instructions from or approval of a superior officer or
authority when such instructions are not necessary
under the scheme of districution of powers and
responsibilities."
17. It is appropriate to have a glance to the decision of
the Hon'ble Apex Court in the case of Union of India
and others vs. P.Gunasekaran reported in (2015) 2
SCC 610 wherein, Hon'ble Apex Court emphasized upon
the scope and interference in the disciplinary
proceedings, while exercising the power under Articles
226 and 227 of the Constitution of India. The relevant
paragraph Nos. 12 to 20 read 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,
reappreciating even the evidence before the enquiry
officer. The finding on Charge 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 Articles 226/227 of the 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;
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(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 Articles 226/227 of the Constitution of India,
the High Court shall not:
(i) reappreciate 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 A.P. v. S.
Sree Rama Rao, many of the above principles have been
discussed and it has been concluded thus: (AIR pp.
1726-27, para 7)
"7. The High Court is not constituted in a
proceeding under Article 226 of the Constitution as
a court of appeal over the decision of the
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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 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 A.P. v. Chitra Venkata Rao³, the principles
have been further discussed at paras 21-24, which read
as follows: (SCC pp. 561-63)
"21. The scope of Article 226 in dealing with
departmental inquiries has come up before this
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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 that an 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 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 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
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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 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
shutdown of an air compressor at about 8.15 a.m.
on 31-5-1956. 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 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
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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 a 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 legend and centenarian V.R. Krishna Iyer, J. in
State of Haryana v. Rattan Singh. To quote the
unparalleled and inimitable expressions: (SCC p. 493, b
para 4)
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"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 textbooks,
although we have been taken through case law and
other authorities by counsel on both sides. The
essence of a judicial approach d is objectivity,
exclusion of extraneous materials or considerations
and observance of rules of natural justice. Of
course, fair play 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 up to
the latest in Chennai Metropolitan Water Supply and
Sewerage 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 28-2-2000, had arrived at the following findings:
impugned dated order dated 28-2-2000, had arrived at
the following findings:-
"Article I was held as proved by the inquiring
authority after evaluating the evidence adduced in
the case. Under the circumstances of the case, the
evidence relied on viz. letter dated 11-12-1992
written by Shri P. Gunasekaran, provides a
reasonable nexus to the charge framed against him
and he did not controvert the contents of the said
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letter dated g 11-12-1992 during the time of
inquiry. Nor did he produce any defence witness
during the inquiry to support his claims including
that on 23-11-1992 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 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 reappreciate the evidence in
exercise of its jurisdiction under Articles 226/227 of the
Constitution of India. a
20. Equally, it was not open to the High Court, in
exercise of its jurisdiction under Articles 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."
18. At this juncture, it is also relevant to take into
account the observations made by Hon'ble Apex Court in
case of Orissa Mining Corporation and another vs.
Ananda Chandra Prusty reported in (1996) 11 SCC
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600 which read as under:-
"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."
19. In the decision of the Hon'ble Apex Court in case of
State Bank of India vs. AGD Reddy reported in 2023
LawSuit(SC) 828, while discussing the issue about onus
of proof Hon'ble Apex Court has observed as under:-
"Onus of proof
[22] 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
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respondent to show, as undertaken by him, what his
response to the allegation was.
[23] 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.
Scope of judicial review in disciplinary proceedings.
[32] From the above discussion, it is clear that it could
not be said that the Enquiry Report, the findings of the
Disciplinary Authority and the order of the Appointing
Authority are based on no evidence or are perverse.
Even if we eschew the report insofar as the aspect of
non-submission of control form, the transgression of the
area of operation and non-declaration of the immovable
property and certain other charges are concerned, the
order of penalty can be sustained.
[36] It is now well settled that the scope of judicial
review against a departmental enquiry proceeding is
very limited. It is not in the nature of an appeal and a
review on merits of the decision is not permissible. The
scope of the enquiry is to examine whether the decision-
making process is legitimate and to ensure that the
findings are not bereft of any evidence. If the records
reveal that the findings are based on some evidence, it is
not the function of the court in a judicial review to re-
appreciate the same and arrive at an independent
finding on the evidence. This lakshman rekha has been
recognized and reiterated in a long line of judgments of
this Court.
Severability of charges
[38] The question that remains is, in the light of the
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findings above, does the order of penalty imposed call
for any interference?
[39] The law is well-settled that if in a disciplinary
proceeding, the order of penalty can be imposed on the
charges proved and the punishment imposed is lawfully
sustainable on those charges, it is not for the Court to
consider whether those grounds alone would have
weighed with the authority in imposing the punishment.
No doubt, on the facts of the present case, on some
aspects of the charge, the proof may have been found
wanting. However, since the law laid down by this Court
is that unless punishment imposed is only co-relatable to
any of those charges found not proved, the penalty
cannot be set aside. In this case, the punishment can be
sustained even if the charges held not proved are
severed. [See State of Orissa vs. Bidyabhushan
Mohapatra, 1963 Supp1 SCR 648 and Deputy General
Manager (Appellate Authority). and Others. vs. Ajai
Kumar Srivastava, 2021 2 SCC 612].
[40] Then the only question is does the penalty imposed
shock the conscience of the Court? In the oral
arguments as well as in the written submissions, the
respondent contended that there was no charge of
financial misappropriation or of causing any financial
loss to the Bank. This submission was countered by the
appellant by placing reliance on the judgment of this
Court in Disciplinary Authority-cumRegional Manager
and Others vs. Nikunja Bihari Patnaik, 1996 9 SCC 69,
particularly, the holding of the Court in para seven
thereof to contend that the test is really not of loss
having been resulted or profit having been made. The
test is whether the delinquent employee, has observed
the prescribed norms of the Bank. The penalty imposed
in this case is "reduction in basic pay to the lowest stage
in Scale-I" as envisaged under Rule 49 (e) of the State
Bank of India (Supervising Staff) Service Rules and
further, to treat the period spent by the delinquent
officer under suspension from 18.08.1990 till the date of
his reinstatement as suspension only. Since the charge
of not conducting periodical inspection and the failure to
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complete the formalities for creating equitable mortgage
with regard to M/s Saraswathi Fabricators are
supported by evidence, we do not think that the penalty
as imposed is disproportionate so as to shock the
conscience of the Court. We maintain the penalty as
imposed in the order of the Appointing Authority dated
31.01.1995 and as confirmed by the Appellate Authority.
[41] For the reasons stated above, we have no hesitation
in holding that both the learned Single Judge and the
Division Bench were in error in allowing the writ
petition and interfering with the findings of the Enquiry
Officer, the decision of the Disciplinary Authority, the
order of the Appointing Authority and the decision of the
Appellate Authority. We, therefore, set aside the order of
the learned Single Judge and that of the Division Bench
and dismiss the Writ Petition No. 29547 of 1997 filed by
the respondent. Accordingly, the Appeal is allowed, with
no order as to costs."
20. Hence, in view of the above, the onus of proof in the
departmental inquiry is to be cast upon the delinquent. In
present case, after taking into account all the relevant
aspect and evidence, the disciplinary authority has
passed the impugned order of punishment and the same
is confirmed by the Appellate Authority. In view of the law
settled by Hon'ble Apex Court and this Court for scope of
interference in the quantum of punishment, I am of the
opinion that this Court has very limited jurisdiction and in
rare case, when the glaring illegality or any perversity is
found in the inquiry proceedings and based upon such
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inquiry, the impugned order of punishment came to be
passed, the Court can interfere with the findings recorded
by the disciplinary authority.
21. In view of above an in view of the decision of the
Hon'ble Apex Court and this Court, I am of the opinion
that the impugned order passed by the disciplinary
authority and confirmed by the appellate authority is not
required any interference and hence, the petition is
devoid of merits and the same requires to be dismissed.
22. So far as the contention raised by the petitioner with
regard to the fact that the petitioner was made scapegoat
and the purchase was looked into by the purchase
committee and the petitioner was not a party to the
purchase committee and therefore, this irregularity /
illegality cannot be fasten upon the petitioner, is
concerned the same is not supported by any evidence. In
fact it is his preliminary duty that when he joined the
service he has to disclose the fact that his wife and son
are doing the business in the name and style of M/s.
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Wagheshwari Traders and they are supplying the goods
to the insinuation, wherein the petitioner is Principal.
Even thereafter, also this practice came to be continued
and therefore, after considering all these details and after
considering the material available on record, the inquiry
officer has made report and relying upon the inquiry
report, the disciplinary authority has passed impugned
order of punishment which is in consonance with the
settled legal position.
23. In view of the above and for the foregoing reasons, I
am of the opinion that present petition does not deserve
to be entertained and same is required to be dismissed.
24. Accordingly present petition is hereby dismissed. Rule
is discharged. Interim relief, if any, stands vacated. No
order as to costs.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
