Gujarat High Court
Tusharbhai A Shah vs Gujarat Housing Board on 2 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13155 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?
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TUSHARBHAI A SHAH
Versus
GUJARAT HOUSING BOARD & 1 other(s)
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Appearance:
MR YATIN SONI(868) for the Petitioner(s) No. 1
MR PK SHUKLA FOR MR PRANAV V SHAH(2516) for the Respondents
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/02/2024
ORAL JUDGMENT
1. By way of present petition under Articles 226 and 227 of
the Constitution of India, under Section 67 of the Gujarat
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Nagarpalika Adhiniyam (Gujarat Municipalities Act), 1963 and
under the Gujarat Civil Service (Discipline and Appeals) Rules,
1971, the petitioner has prayed the following reliefs.
"A. This petition be admitted and allowed.
B. By exercising powers under Article 226 r/w. Article
227 of Constitution of India, Your Lordships may be
pleased to quash and set aside the order dated 30-3-
2011 passed by respondent no.1 herein (Annexure A)
and be further pleased to quash and set aside the
order dated 2-11-2010 passed by respondent no.2
(Annexure B)
and alternatively,
Your Lordships may be pleased by quashing and
setting aside both the said orders Annexure A and B,
the matter may be referred back for fresh
consideration to respondent no.2 authority as both
authorities have passed orders without considering
the submissions and defence made by the petitioner
and without following the principles of natural justice.
C. Pending hearing and final disposal of the present
petition, Your Lordships may be pleased to stay the
operation, implementation and execution and further
operation, of the order dated 30-3-2011 (Annexure A)
and the order dated 2-11-2010 (Annexure B) passed
by respondent no.1 and respondent no.2 resepctively.
D. Any other relief that may be deemed fit may also be
kindly granted.
2. Brief facts of the present petition is that the petitioner is
qualified Engineer working with Gujarat Housing Board since
21.03.1984 and he put on deputation for a period of one year
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and appointed as Chief Officer of Balasinor Nagarpalika. That as
there was political rivalry amongst the members of Nagarpalika,
false and frivolous allegations were made against the elected
members and the petitioner and he came back at Gujarat
Housing Board since 28.05.2005. Thereafter, the petitioner was
deputed for a period of one and half year in the office of the
Superintendent of Stamp Duty, Gujarat State at Gandhinagar and
again he came back to Gujarat Housing board in the year of 2007
and since then, he was discharging his duty in Gujarat Housing
Board as Assistant Engineer. That since the appointment of the
petitioner and till date he has completed approximately 27 years
of service and except one year as Chief Officer of Nagarpalika on
deputation and one and half year as Superintendent in Stamp
Duty Department, for rest of the period, he has discharged his
duty as Engineer in Gujarat Housing Board.
2.1 The service record of the petitioner was good, however, he
was falsely implicated in an inquiry because of political rivalry
between two groups of elected members of Balasinor
Nagarpalika. The respondent no.2 had initiated proceedings
under the Gujarat Civil Service (Discipline and Appeals) Rules,
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1971 and passed an order on 02.11.2010 whereby the order of
recovery of Rs.1,58,720/- was made and further ordered that
said amount shall be recovered in 7 equal installments of
Rs.22,675/- each and two future increments of the petitioner to
be withheld with future effect and Rs.15,120/- has been
recovered by the respondents from the salary of the petitioner at
the rate of Rs.1,890/- per month, till the petitioner's salary upto
July 2011.
2.2 That petitioner had preferred an appeal under Rule 18 of
the Gujarat Civil Service (Discipline and Appeals) Rules, 1971
before the Chairman, Gujarat Housing Board - the appellate
authority praying for stay of the impugned order of punishment
passed by the disciplinary authority, however, the appellate
authority dismissed the appeal and confirmed the order passed
by the disciplinary authority. Hence, the present appeal is filed.
3. Heard Mr.Yatin Soni, learned counsel appearing for the
petitioner and Mr.P. K. Shukla, learned counsel for Mr.Pranav
Shah, learned counsel appearing for respondents at length.
4. Mr.Yatin Soni, learned counsel appearing for the petitioner
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has submitted the same facts which are narrated in the memo of
petition and submitted that the impugned order passed by the
appellate authority is without their being any valid and legal
reasons and the findings recorded by the appellate authority are
perverse and illegal. He has submitted that the disciplinary
authority and the appellate authority have not dealt with the
contention raised by the present petitioner at the time of inquiry
and, therefore, the impugned order of punishment imposed by
the disciplinary authority and confirmed by the appellate
authority is against the settled legal principles of law and the
same is clear in violation of the principles of natural justice. It is
further submitted by learned counsel for the petitioner that
though the concerned District Collector issued report to take
action against the persons, who were in fault and negligent for
such misconduct by discharging their duties, appropriate steps
required to be taken against all the persons, however, the inquiry
was initiated only against the present petitioner and, therefore,
the same is with an ulterior motive and mala fide intention. He
has submitted that the petitioner has neither committed any
illegality and/or irregularity, while procuring the alleged goods
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from the grant nor he has committed any mal practice and,
therefore, the charged levelled against the petitioner is
erroneous and against the facts of the case. He has submitted
that the findings recorded by both the authorities against the
facts of the present case and without considering the defence
raised by the petitioner. He has submitted that the petition
deserves to be allowed and the impugned order of punishment
deserves to be quashed and set aside. Lastly, Mr.Soni, learned
counsel has submitted that the punishment imposed upon the
petitioner is very harsh as charge levelled against him is not
serious in nature and, therefore, the punishment imposed upon
the petitioner is disproportionate to the charge levelled against
him and, thus, this Hon'ble Court may interfere with the
impugned order passed by the disciplinary authority and
confirmed by the appellate authority.
5. Per contra, Mr.P. K. Shukla, learned counsel for Mr.Pranav
Shah, learned counsel appearing for the respondents has
submitted that the charge levelled against the petitioner is
proved during the inquiry and on the basis of the inquiry report,
the disciplinary authority has imposed punishment and the same
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came to be confirmed by the appellate authority after recording
the concurrent findings. He has submitted that during the course
of the inquiry, sufficient opportunity was given to the petitioner
and after giving full opportunity, the petitioner was found guilty
for the charge levelled against him. He has submitted that this
Hon'ble Court, while exercising the powers under Articles 226
and 227 of the Constitution of India, has very limited scope to
interfere with the findings recorded by the appellate authority
and, thus, the present petition being meritless deserves to be
dismissed. Over-and-above, while referring to the contentions of
the affidavit-in-reply, Mr.Shukla, learned counsel has submitted
that considering the settled principles of law, this Court may not
interfere with the impugned order of punishment passed by the
disciplinary authority and confirmed by the appellate authority.
6. The controversy in the present petition is to the effect that
whether the petitioner was held guilty for the charge levelled
against him by the respondents is just and proper and the
punishment imposed by the disciplinary authority and confirmed
by the appellate authority and whether this Court can interfere
with the quantum of punishment or not. The law is very settled
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on this aspect.
7. After appreciating the contentions and the defence raised
by the petitioner during the course of the inquiry, the inquiry
officer has submitted a report to the disciplinary authority. The
delinquent was given full opportunity to raise his defence and he
had submitted his written statement before the disciplinary
authority and after considering the reply and the defence, the
disciplinary authority has come to the conclusion that the
charges levelled against the petitioner are proved and thus, the
impugned order of punishment imposed by the disciplinary
authority and confirmed by the appellate authority is just and
proper as per the law laid down by the Hon'ble Supreme Court as
well as this Court.
8. It is worthwhile to refer to the decision of the Hon'ble
Supreme Court in the case of Orissa Mining Corporation
Limited Vs. Ananda Chandra Prusty reported in (1996) 11
SCC 600 wherein the Hon'ble Supreme Court has decided the
question of burden of proof in disciplinary proceedings. In the
said decision, the Hon'ble Supreme Court has held and observed
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in para-6 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 nothings on account of which loans were disbursed to
certain ineligible person. The respondent's case was that
those nothings 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."
9. It is also worthwhile to refer to the decision of this Court in
the case of C S. Amin Vs. Assistant General Manager SBI,
Region III & 2 reported in 2016 LawSuit (Guj) 1916 and
Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal
Corporation and 2 reported in 2017 LawSuit (Guj) 9 where
in this Court has decided similar issue as involved in the present
petition.
10. In the case of C. S. Amin (supra), this Court has held and
observed in paras - 29, 30 and 31 as under:-
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"29. I may quote the observations of the Division Bench as
under:- The doctrine of proportionality and Wednesbury
rule evolved in England in Council of Civil Services Union
Vs. Minister for Civil Services (1983) 1 AC 768 and
Associated Provincial Picture Houses Limited Vs.
Wednesbury Corporation - 1948 2 All ER 680 have been
applied by the Courts in India in various decisions. In Union
of India Vs. C.G. Ganayutham - AIR 1997 SC 3387, the
Supreme Court considered the ambit and scope of the
doctrine of proportionality and Wednesbury rule in the light
of various judicial pronouncements and laid down the
following propositions: "
(1) To judge the validity of any administrative order or
statutory discretion normally the Wednesbury test is to be
applied to find out if the decision was illegal or suffered
from procedural improprieties or was one which no sensible
decision-maker could, on the material before him and
within the framework of the law, have arrived at. The Court
would consider whether relevant matters had not been
taken into account or whether irrelevant matters had been
taken into account or whether the action was not bonafide.
The Court would also consider whether the decision was
absurd or perverse. The Court would not however go into
the correctness of the choice made by the administrator
amongst the various alternatives open to him. Nor could
the Court substitute its decision to that of the
administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator's
decision unless it was illegal or suffered from procedural
impropriety or was irrational in the sense that it was in
outrageous defiance of logic or moral standards. The
possibility of other tests, including proportionality being
brought into English Administrative Law in future is not
ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the
European Human Rights Convention (Contention) is not
incorporated into English Law, the English Courts merely
exercise a secondary judgement to find out if the decision
maker could have, on the material before him, arrived at
the primary judgment in the manner he has done. (3)(b) If
the Convention is incorporated in England making available
the principle of proportionality, then the English Courts will
render primary judgement on the validity of the
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administrative action and find out if the restriction is
disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the
restriction thereupon.
(4)(a) The position in our country in administrative law,
where no fundamental freedoms are involved, is that the
Courts/Tribunals will only play a secondary role while the
primary judgement as to reasonableness will remain with
the executive or administrative authority. The secondary
judgement of the Court is to be based on Wednesbury the
CCSU principles as stated by Lord Greene and Lord Diplock
respectively to find if the executive or administrative
authority has reasonably arrived at his decision as the
primary authority.
(4)(b) Whether in the case of administrative or executive
action affecting fundamental freedoms, the Courts in our
country will apply the principle of 'proportionality' and
assume a primary role, is left open, to be decided in an
appropriate case where such action is alleged to offend
fundamental freedoms."
In Apparel Export Promotion Council Vs. A.K. Chopra -
(1999) 1 SCC 759, the Supreme Court reiterated the
otherwise well settled principles of law on the scope of
judicial review of disciplinary action taken by the employer
and laid down the following propositions:-
"It is a settled position that in departmental proceedings,
the disciplinary authority is the sole judge of facts and in
case an appeal is presented to the appellate authority, the
appellate authority has also the power/and jurisdiction to
re-appreciate the evidence and come to its own conclusion,
on facts, being the sole fact-finding authorities. Once
findings of fact, based on appreciation of evidence are
recorded, the High Court in writ jurisdiction may not
normally interfere with those factual findings unless it finds
that the recorded findings were based either on no
evidence or that the findings were wholly perverse and/or
legally untenable. The adequacy or inadequacy of the
evidence is not permitted to be canvassed before the High
Court. Since the High Court does not sit as an appellate
authority over the factual findings recorded during
departmental proceedings, while exercising the power of
judicial review, the High Court cannot, normally speaking,
substitute its own conclusion, with regard to the guilt of the
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delinquent, for that of the departmental authorities. Even in
so far as imposition of penalty or punishment is concerned,
unless the punishment or penalty imposed by the
disciplinary or the departmental appellate authority, is
either impermissible or such that it shocks the conscience
of the High Court, it should not normally substitute its own
opinion and impose some other punishment or penalty.
Further, it is a well-settled principle that even though
judicial review of administrative action must remain flexible
and its dimension not closed, yet the court, in exercise of
the power of judicial review, is not concerned with the
correctness of the findings of fact on the basis of which the
orders are made so long as those findings are reasonably
supported by evidence and have been arrived at through
proceedings which cannot be faulted with for procedural
illegalities or irregularities which vitiate the process by
which the decision was arrived at. Judicial review, is
directed not against the decision, but is confined to the
examination of the decision-making process.
Judicial review, not being an appeal from a decision, but a
review of the manner in which the decision was arrived at,
the court, while exercising the power of judicial review,
must remain conscious of the fact that if the decision has
been arrived at by the administrative authority after
following the principles established by law and the rules of
natural justice and the individual has received a fair
treatment to meet the case against him, the court cannot
substitute its judgement for that of the administrative
authority on a matter which fell squarely within the sphere
of jurisdiction of that authority."
In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the
Supreme Court traced the history of the principle of
proportionality, referred to the propositions culled out in
Ganayutham's case (supra), noticed the decision of the
House of Lords in R. Vs. Chief Constable of Sussesc ex.p.
International Trader's Ferry Ltd. (1999) 1 All ER 129,
wherein the principles of Wednesbury and proportionality
were almost equated and held that where the decision of
an administrative authority is attacked being arbitrary, the
principle of secondary review will have to be kept in mind.
Paragraphs 28, 29 66 to 71 of this judgement which
theortises the law on the subject are reproduced below:
"28. By 'proportionality' we mean the question whether,
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while regulating exercise of fundamental rights, the
appropriate or least restrictive choice of measures has
been made by the Legislature or the Administrator so as to
achieve the object of the legislation or the purpose of the
administrative order, as the case may be. Under the
principle, the Court will see that the Legislature and the
administrative authority 'maintain a proper balance
between the adverse effects which the legislation or the
administrative order may have on the rights, liberties, or
interests of persons keeping in mind the purpose which
they were intended to serve. The Legislature and the
administrative authority are, however, given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the Court. That is what is meant by proportionality."
"29. The above principle of proportionality has been applied
by the European Court to protect the rights guaranteed
under the European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950 and in
particular, for considering whether restrictions imposed
were restrictions which were 'necessary' - within Arts.8 to
11 of the said Convention (corresponding to our Art. 19(1)
and to find out whether the restrictions imposed on
fundamental freedoms were more excessive than required.
(Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of
the Convention contain provisions similar to Art. 21 of our
Constitution relating to life and liberty. The European Court
has applied the principle of proportionality also to questions
of discrimination under Art. 14 of the Convention
(corresponding to Art.14 of our Constitution). (See
European Administrative Law by J. Schwaze, 1992. Pp.677-
866)."
"66. It is clear from the above discussion that in India where
administrative action is challenged under Art.14 as being
discriminatory, equals are treated unequally or unequals
are treated equally, the question is for the constitutional
Courts as primary reviewing Courts to consider correctness
of the level of discrimination applied and whether it is
excessive and whether it has a nexus with the objective
intended to be achieved by the Administrator. Here the
Court deals with the merits of the balancing action of the
Administrator and is, in essence, applying 'proportionality'
and is a primary reviewing authority."
"67. But where, an administrative action is challenged as
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'arbitrary' under Art. 14 on the basis of Royappa (as in
cases where punishments in disciplinary cases are
challenged), the question will be whether the
administrative order is 'rational' or 'reasonable' and the test
then is the Wednesbury test. The Courts would then be
confined only to a secondary role and will only have to see
whether the Administrator has done well in his primary role,
whether he has acted illegally or has omitted relevant
factors from consideration or has taken irrelevant factors in
to consideration or whether his view is one which no
reasonable person could have taken. If his action does not
satisfy these rules, it is to be treated as arbitrary. (In G.B.
Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p.
111 :(AIR 1991 SC 1153 at . 1165), Venkatachaliah, J. (as
he then was) pointed out that 'reasonableness' of the
Administrator under Art. 14 in the context of Administrative
Law has to be judged from the stand point of Wednesbury
rules. In Tata Cellular V. Union of India (1994) 6 SCC 651 at
Pp. 679- 680: (1994 AIR SCW 3344 and at Pp.3369-70 In
Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605,
the Supreme Court outlined the mode to be adopted for
determining whether the punishment imposed by the
disciplinary authority is shockingly disproportionate and
observed as under:: AIR 1996 SC 11); Indian Express
Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691:
(AIR 1986 SC 515 at Pp.542- 43): Supreme Court
Employees' Welfare Association V. Union of India (1989) 4
SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC
324 at p.358) and U.P. Financial Corporation V. GEM CAP
(India) Pvt.Ltd. (1993) 2 SCC 299, at p. 307: (1993 SC 1435
at p.1439), while judging whether the administrative action
is 'arbitrary' under Art.14 (i.e.otherwise than being
discriminatory), this Court has confined itself to a
Wednesbury review always."
"71. Thus, from the above principles and decided cases, it
must be held that where an administrative decision relating
to punishment in disciplinary cases is questioned as
'arbitrary' under Art.14, the Court is confined to
Wednesbury principles as a secondary reviewing authority.
The Court will not apply proportionality as a primary
reviewing Court because no issue of fundamental freedoms
nor of discrimination under Art.14 applies in such a context.
The Court while reviewing punishment and if it is satisfied
that Wednesbury principles are violated, it has normally to
remit the matter to the Administrator for a fresh decision as
to the quantum of punishment. Only in rate cases where
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there has been long delay in the time taken by the
disciplinary proceedings and in the time taken in the
Courts, and (in) such extreme or rate cases can the Court
substitute its own view as to the quantum of punishment."
In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC
605, the Supreme Court outlined the mode to be adopted
for determining whether the punishment imposed by the
disciplinary authority is shockingly disproportionate and
observed as under:
"The Court or tribunal while dealing with the quantum of
punishment has to record reasons as to why it is felt that
the punishment was not commensurate with the proved
charges. The scope for interference is very limited and
restricted to exceptional cases. In the impugned order of
the High Court no reasons whatsoever have been indicated
as to why the punishment was considered disproportionate.
Failure to give reasons amounts to denial of justice. A mere
statement that it is disproportionate would not suffice. It is
not only the amount involved but the mental set-up, the
type of duty performed and similar relevant circumstances
which go in to the decision-making process while
considering whether the punishment is proportionate or
disproportionate. If the charged employee holds a position
of trust where honesty and integrity are inbuilt
requirements of functioning, it would not be proper to deal
with the matter leniently. Misconduct in such cases has to
be dealt with iron hands. Where the person deals with
public money or is engaged in financial transactions or acts
in a fiduciary capacity, the highest degree of integrity and
trustworthiness is a must and unexceptional." (underlining
is ours)
In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331,
the Supreme Court reiterated that the High Court should
ordinarily not interfere with the discretion exercised by the
disciplinary authority in the matter of imposition of
punishment and observed:
"Normally, the punishment imposed by a disciplinary
authority should not be disturbed by the High Court or a
tribunal except in appropriate cases that too only after
reaching a conclusion that the punishment imposed is
grossly or shockingly disproportionate, after examining all
the relevant factors including the nature of the charges
proved, the past conduct, penalty imposed earlier, the
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nature of duties assigned having due regard to their
sensitiveness, exactness expected and discipline required
to be maintained, and the department / establishment in
which the delinquent person concerned works."
30 The above noted decision of this Court gives a clear idea
of the limited scope of judicial review of the discretion
exercised by the employer to impose the particular penalty
on the delinquent employee. The Supreme Court has
repeatedly emphasised that the High Courts cannot
exercise appellate jurisdiction in such matters and
substitute their opinion for the one formed by the
disciplinary authority. It has also been held that the
punishment imposed by the competent authority cannot be
modified/substituted with a lesser penalty unless the Court
is satisfied that the same is grossly or shockingly
disproportionate or is so unreasonable that no person of
reasonable prudence would have imposed such punishment
in the facts and circumstances of the case.
31. For determination of the question whether the
punishment imposed by the disciplinary authority is grossly
or shockingly disproportionate, the Court has to take into
consideration all the relevant factors including the nature of
charges proved, the past conduct of the employee, the
punishment if any imposed earlier, the nature of duties
assigned to the employee having due regard to their
sensitiveness, performance norms if any laid down by the
employer and above all the paramount requirement of
maintaining discipline in the service."
11. In the case of Bhikhubhai Kamabhai Dabhi (supra), this
Court has held and observed in paras - 17, 18 and 21 as under:-
"17. It is now well settled by a plethora of judgments of the
Supreme Court that in exercise of its powers under Articles
226 and 227 of the Constitution of India should not venture
into the reappreciation of evidence or interfere with the
conclusion arrived at by the disciplinary authority in the
inquiry proceedings, if the same are conducted in
accordance with law or go into the reliability / adequacy of
evidence, or interfere, if there is some legal evidence on
which the findings are based, or correct error of fact
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however grave it may be, or go into the proportionality of
punishment unless it shocks the conscience.
18. It is equally well settled that the High Courts in
exercise of its powers under Articles 226 and 227 can only
consider whether the inquiry held by the competent
authority was in accordance with the procedure established
by law, and the principles of natural justice,whether
irrelevant or extraneous consideration and/or exclusion of
admissible or material evidence or admission of
inadmissible evidence being influenced the decision
rendering it vulnerable.
21. In a very recent pronouncement in the case of Union
of India and others v. P. Gunasekaran [2015(2) SCC 610],
the Supreme Court in details has explained the position of
law so far as the scope of interference in the matter
relating to the disciplinary proceedings is concerned. I may
quote the observations made by the Supreme Court from
paras 12 to 20 as under:
"12. Despite the wellsettled 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. 1 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 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;
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(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). 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 Andhra
Pradesh and others v. S. Sree Rama Rao1, many of the
above principles have been discussed and it has been
concluded thus:
"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
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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 Andhra Pradesh and others v. Chitra Venkata
Rao [(1975) 2 SCC 557], the principles have been further
discussed at paragraphs 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 (AIR 1963 SC 1723). 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
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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 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 (AIR 1969 SC
966) 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 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
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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 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 (AIR 1964 SC 477).
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 summedup by the
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living legend and centenarian Justice V. R. Krishna Iyer in
State of Haryana and another v. Rattan Singh [(1977) 2
SCC 491]. To quote the unparalled and inimitable
expressions:
"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, 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 Water Supply and Sewarage Board v. T. T.
Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), 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 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. 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. ...."
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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 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."
12. It is worthwhile to refer to the decision of the State Bank
Of India Versus Bela Bagchi reported in (2005) 7 SCC 435,
wherein the Hon'ble Supreme Court has held and observed in
para-15 as under:-
"15. A Bank officer is required to exercise higher
standards of honesty and integrity. He deals with money of
the depositors and the customers. Every officer/employee
of the Bank is required to take all possible steps to protect
the interests of the Bank and to discharge his duties with
utmost integrity, honesty, devotion and diligence and to do
nothing which is unbecoming of a Bank officer. Good
conduct and discipline are inseparable from the functioning
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of every officer/employee of the Bank. As was observed by
this Court in Disciplinary Authority-cum-Regional Manager
V/s. Nikunja Bihari Patnaik, it is no defence available to say
that there was no loss or profit in the case, when the
officer/employee acted without authority. The very
discipline of an organization more particularly a Bank is
dependent upon each of its officers and officers acting and
operating within their allotted sphere. Acting beyond one's
authority is by itself a breach of discipline and is a
misconduct. The charges against the employee were not
casual in nature and were serious. That being so, the plea
about absence of loss is also sans substance."
13. It is worthwhile to refer to the decision of the State Bank
Of India Versus Bela Bagchi reported in (2005) 7 SCC 435,
wherein the Hon'ble Supreme Court has held and observed in
para-15 as under:-
"15. A Bank officer is required to exercise higher
standards of honesty and integrity. He deals with money of
the depositors and the customers. Every officer/employee
of the Bank is required to take all possible steps to protect
the interests of the Bank and to discharge his duties with
utmost integrity, honesty, devotion and diligence and to do
nothing which is unbecoming of a Bank officer. Good
conduct and discipline are inseparable from the functioning
of every officer/employee of the Bank. As was observed by
this Court in Disciplinary Authority-cum-Regional Manager
V/s. Nikunja Bihari Patnaik, it is no defence available to say
that there was no loss or profit in the case, when the
officer/employee acted without authority. The very
discipline of an organization more particularly a Bank is
dependent upon each of its officers and officers acting and
operating within their allotted sphere. Acting beyond one's
authority is by itself a breach of discipline and is a
misconduct. The charges against the employee were not
casual in nature and were serious. That being so, the plea
about absence of loss is also sans substance."
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14. It is worthwhile to refer to the decisions of the Hon'ble
Supreme Court in the case of Union Of India Versus Dwarka
Prasad Tiwar reported in (2006) 10 SCC 388 and Chennai
Metropolitan Water Supply And Sewerage Board Versus
T.T.Murali Babu reported in (2014) 4 SCC 108.
15. In the case of Dwarka Prasad Tiwar (supra), the Hon'ble
Supreme Court has held and observed in paras - 12 to 15 as
under:-
"12. The common thread running through in all these
decisions is that the Court should not interfere with the
administrator's decision unless it was illogical or suffers
from procedural impropriety or was shocking to the
conscience of the Court, in the sense that it was in
defiance of logic or moral standards. In view of what has
been stated in the Wednesbury's case (supra) the Court
would not go into the correctness of the choice made by
the administrator open to him and the Court should not
substitute its decision to that of the administrator. The
scope of judicial review is limited to the deficiency in
decision-making process and not the decision.
13. To put differently unless the punishment imposed by
the Disciplinary Authority or the Appellate Authority shocks
the conscience of the Court/Tribunal, there is no scope for
interference. Further to shorten litigations it may, in
exceptional and rare cases, impose appropriate
punishment by recording cogent reasons in support
thereof. In a normal course if the punishment imposed is
shockingly disproportionate it would be appropriate to
direct the Disciplinary Authority or the Appellate Authority
to reconsider the penalty imposed.
14. The above position was recently reiterated in Union of
India and Anr. V/s. K.G. Soni, following Damoh Panna Sagar
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Rural Regional Bank and Others V/s. Munna Lal Jain.
15. The High Court, as rightly submitted by learned
counsel for Union of India, has not indicated any reason for
coming to the conclusion that the punishment was
shockingly disproportionate. The High Court only stated
that the defence of respondent-Dwarka Prasad was not
duly considered. If that was really so, the High Court would
have interfered on that ground but that has not been done.
The High Court's order therefore reflects non application of
mind. The impugned order of the High Court is set aside.
The matter is remitted to the High Court to re-hear the writ
petition restricted to the question of quantum of
punishment. The appeal filed by respondent-Dwarka
Prasad is without merit in view of the fact that his
statement at different stages during the departmental
proceedings indicates that he has accepted that he himself
was responsible for the incident."
16. In the case of Chennai Metropolitan Water Supply and
Sewerage Board (supra), the Hon'ble Supreme Court has held
and observed in paras - 18 and 30 as under:-
"18. In Shri Bhagwan Lal Arya (supra) this Court opined
that the unauthorized absence was not a grave misconduct
inasmuch as the employee had proceeded on leave under
compulsion because of his grave condition of health. Be it
noted, in the said case, it has also been observed that no
reasonable disciplinary authority would term absence on
medical grounds with proper medical certificate from
Government doctors as a grave misconduct.
30. After so stating the two-Judge Bench proceeded to
say that one of the tests to be applied while dealing with
the question of quantum of punishment is whether any
reasonable employer would have imposed such
punishment in like circumstances taking into consideration
the major, magnitude and degree of misconduct and all
other relevant circumstances after excluding irrelevant
matters before imposing punishment. It is apt to note here
that in the said case the respondent had remained
unauthorisedly absent from duty for six months and
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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 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.
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."
17. It is also worthwhile to refer to the decision of the Hon'ble
Supreme Court in the case of State Bank of India Vs. A. G. D.
Reddy reported in 2023 (11) Scale 530 wherein the Hon'ble
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Supreme Court has held and observed in para-32 as under:-
"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."
18. The above-mentioned decisions of this Court gives a clear
idea of the limited scope of judicial review of the discretion
exercised by the employer to impose the particular penalty on
the delinquent employee. The Supreme Court has repeatedly
emphasised that the High Courts cannot exercise appellate
jurisdiction in such matters and substitute their opinion for the
one formed by the disciplinary authority. It has been held that
the punishment imposed by the competent authority cannot be
modified / substituted with a lesser penalty unless the Court is
satisfied that the same is grossly or shockingly disproprtionate or
is so unreasonable that no person of reasonable prudence would
have imposed such punishment in the facts and circumstances of
the case.
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19. On perusal of the inquiry report of the inquiry officer and
the order of the disciplinary authority, I am of the opinion that
the punishment of dismissal inflicted on the petitioner vis-a-vis
the proven misconduct is not so disproportionate as would shock
the conscience of this Court warranting interference.
20. Considering the totality of facts, I am of opinion that the
authority has rightly arrived at the conclusion that the petitioner
was guilty of misconduct, which was sufficient to remove him
from the service. This Court finds no reasons to interfere with the
same either.
21. Considering overall facts and circumstances of the case
and the decisions of this Court as well as Hon'ble Supreme Court,
I am of the opinion that the appellate authority has recorded its
findings after perusing and going through the materials on
record and, therefore, both the authorities have not committed
any error in passing the impugned orders and hence, the present
petition is devoid of merits and the same deserves to be
dismissed.
22. For the foregoing reasons, this petition fails and is hereby
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dismissed. Rule is discharged. Interim relief, if any, shall stand
vacated. There shall be no order as to costs. However, the
respondents are directed to release all the retiral dues of the
petitioner after deducting the amount of Rs.1,58,720/- with 6%
interest from the date of his retirement till the actual payment.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
