H M Kalsi vs Vadodara Municipal Corporation
2024 Latest Caselaw 458 Guj

Gujarat High Court

H M Kalsi vs Vadodara Municipal Corporation on 18 January, 2024

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     C/SCA/12782/2004                           JUDGMENT DATED: 18/01/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 12782 of 2004


FOR APPROVAL AND SIGNATURE: Sd/-

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
1 Whether Reporters of Local Papers may be Yes
  allowed to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

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

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

=======================================
                       H M KALSI
                        Versus
            VADODARA MUNICIPAL CORPORATION
=======================================
Appearance:
MR BS PATEL FOR MS HARSHAL N PANDYA(3141) for the
Petitioner
MR MAULIK NANAVATI FOR NANAVATI & CO.(7105) for the
Respondent
=======================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                         Date : 18/01/2024

                         ORAL JUDGMENT

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1. By this petition under Articles 14 and 16 of the Constitution

of India, the petitioner has prayed for the following reliefs:

"(A) quashing and setting the order of dismissal dt.

6.9.2022 and to reinstate the petitioner in service with all consequential benefits excluding the same for the period of delay.

(B) during the pendency and final disposal of this petition, the Respondent may be directed to reinstate the petitioner in service.

(C) To grant such other and further relief's as may be deemed fit."

2 FACTS:-

2.1 The petitioner was initially appointed as Vehicle Pool

Manager in June 1988 in the respondent - Corporation and,

thereafter, he was promoted as Deputy Executive Engineer.

When he was serving as Deputy Executive Engineer, he was

served till he came to be dismissed from the service by an order

dated 06.09.2002.

2.2 A charge-sheet dated 05.04.1997 came to be served upon

the petitioner for holding departmental inquiry in respect of ten

charges and therefore, the charge came to be framed against

the petitioner mainly relating to the irregularities with regard to

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purchase of spare parts of wheeldozers and buldozers.

2.3 It is contended that an Inquiry Officer was appointed to

hold the departmental inquiry, who as per report dated

25.01.2002, found the petitioner guilty of all the charges. The

respondent - Corporation agreed with the inquiry report dated

25.01.2002 and, thereafter, the Corporation issued show-cause

notice dated 27.06.2002 asking him as to why he should not be

dismissed from the service.

2.4 The charges levelled against the petitioner are as under:-

Charge No. 1 :-

When you had been discharging your duty as Deputy

Executive Engineer (Workshop) at Central Workshop, Kalupur, of

Vadodara Municipal Corporation at the respective time, you

cheated Vadodara Municipal Corporation by purchasing spare

parts worth total Rs. 11,39,458.50/- including Rs. 8,38,840.50/-

for D-59-A-15 bull dozer and Rs. 3,00,618/- for G-14 D wheel

dozer from bogus person (company) based on unauthorized

report obtained on the plain paper in respect of repairing of

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dozers from the bogus person instead of purchasing the spare

parts of D-59-A-15 bull dozer and G-14 D wheel dozer from

Bharat Earth Movers Limited based on the approval received

vide Resolution No. 811 dated 16/12/1991 of the Local

Committee, which were purchased from Bharat Earth Movers

Limited and you intentionally did not maintain devotion to your

duty and thereby, committed grave criminal act.

Charge No. 2 :-

You gave indent to the bogus representative of the

company for purchasing spare parts of D-59-A-15 bull dozer vide

outward no. 651/1/93-94 dated 19/10/1993 from the Central

Workshop. The quantity of items to be purchased has been

shown correctly in the so called proforma invoice no.

MWA/SP/362/03 dated 22.10.1993. One quantity of item no. 4 -

Hub Sprocket has been mentioned in the aforesaid proforma

invoice, whereas the so called company has charged for two

quantities, wherein more price of Rs. 1,00,800/- has been

assessed. Similarly, one quantity of item no. 5 - bracket bearing

Sprocket has been mentioned in the aforesaid proforma invoice,

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whereas the company has charged for two quantities and

therefore, Rs. 26,800/- more has been assessed. Though more

price of total Rs. 1,27,600/- including Rs. 1,00,800/- and Rs.

26,800/- has been assessed, you have intentionally taken

further action for payment based on the aforesaid proforma

invoice considering the same as genuine without getting

necessary correction carried out therein. Thus, you, being

colluded with the bogus person of the company, committed

criminal act causing financial loss to the Corporation and you

intentionally did not maintain devotion to your duty.

Charge No. 3 :-

The account payee cheque is issued for the payment to be

made to all the contractors/dealers working in the Corporation or

supplying goods to it. The demand draft is issued for the

payment only upon the written request of the dealer. The bogus

representative of the company - Bharat Earth Movers Ltd. has

not made any written request for demand draft in connection

with aforesaid work. Despite that, you misrepresented that

payment of aforesaid spare parts mentioned in Tasalmat

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Resolution No. 554 dated 16/08/1994 and Tasalmat Resolution

No. 001/94-95 dated 29/10/1993 are to be made through the

Demand Draft and got the same issued and you have

deliberately shown more interest than necessary by colluding

with the bogus representative of the company and embezzled

the public money of the Corporation and committed a grave

criminal act.

Charge No. 4 :-

The so called bogus invoice no. MWA/SP/362/03 dated

10/10/1994 of Bharat Earth Movers regarding purchase of spare

parts of D-50 A-15 bull dozers has been received, wherein Rs.

2,01,600/- has been charged by showing item no. 4 (four) Hub

Sprocket- two (2) nos., whereas Rs. 53,600/- has been charged

by showing item no. 5 (five) bracket bearing sprocket - 2 nos. In

fact, demand of aforesaid spare parts was for one quantity and

accordingly, one quantity has been mentioned in the proforma

invoice of the so called Bharat Earth Movers. Despite that, two

quantities of both items have been charged in the bill produced.

Despite that, you, being Deputy Executive Engineer, have

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certified the bill by putting signature on the endorsement that

bill is correct as per all kinds of verification, and thereby, you

have intentionally embezzled Rs. 8,38,840.50/- and cheated

Corporation by colluding with the bogus person and committed a

grave criminal act.

Charge No. 5 :-

It is alleged that you got spare parts of the respective

dozers, which were purchased for bull dozer D-50 A-15, replaced

through departmental mechanic, by making the entries of

expenses in the expense journal. Upon inquiring about aforesaid

old spare parts, though bill no. MWA/SP/362/03 dated

10/10/1994 of so called company Bharat Earth Movers Ltd.

containing two quantities of item no. 4 - hub sprocket and item

no. 5 bracket bearing sprocket was received, you paid Rs.

1,27,600/- more by showing two quantities and caused financial

loss to the Corporation and cheated the Corporation and thereby

committed criminal act.

Charge No. 6 :-

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Both bogus receipts dated 10/10/1994 for Rs. 8,38,840.50

of Bharat Earth Movers Ltd., Mumbai, in respect of demand draft

no. 92/G.690351 dated 27/09/1994 were received by you. Both

stamp receipts of different companies were received on the

same day, which are bogus. The demand draft was encashed in

the bogus account of Bharat Earth Movers as you issued the

demand draft to unauthorized persons and thereby, you cheated

the Corporation by colluding with unauthorized person so as to

embezzle the amount of demand draft and committed criminal

act.

Charge No. 7 :-

The spare parts for the repairing of bull dozer D-50 A-15

and wheel dozer G-15 D belonging to Vadodara Municipal

Corporation have not been sent by Bharat Earth Movers Ltd.,

Ahmedabad, or Bharat Earth Movers Ltd., Mumbai, or any office

of Bharat Earth Movers.

But, by purchasing all these goods from a bogus person

and by colluding with him, you have caused financial loss to the

corporation, committed cheating with the corporation, caused

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embezzlement of public money and committed grievous criminal

act. You have committed intentional negligence in duty and

tarnished the reputation of corporation and by obtaining report

No.MW/95 dated 24/06/95 to the effect that the work of

changing the purchased goods of D-50, A-15 in collusion with the

employees of the company, you have misled the corporation

and thereby committed a grievous act of cheating.

Charge No.8

Item No.8 and 9 have been mentioned as Main Clutch

Assembly and Main Clutch in bill and proforma invoice

respectively in respect of purchase of spare parts of Bull Dodger

of D-50 and A-15. Expense of both of them, has been entered in

expense rojmel of the workshop, but the same has not been

replaced against bull dodger. These goods have not been

received in the workshop due to which, old goods of both these

items have not been deposited. Inspite of that, two new clutch

plates and old scrapped big cover have been put in place of the

above two items. Thus, by putting goods of similar items by

showing it as old items in the workshop, you have intentionally

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tried to mislead the corporation with a malafide intention and

showed item Nos. 8 and 9 i.e. Main Clutch Assembly worth

Rs.1,32,100/- and Main Clutch worth Rs.30,550/- totalling to

Rs.1,62,650/- in the bill and committed cheating with corporation

intentionally. Because of your such kind of criminal act, the

reputation of the corporation has been tarnished.

Charge No.9 :-

Item No.4 and 5 - Hub Sprocket and Bracket Bearing

Sprocket D-50, A-15, each shown in proforma invoice and bill

respectively are lying in the workshop with old goods of bull

dodger in unused condition. Thus, despite both these items were

not required, you have purchased it and thereby increased

financial burden of Rs.1,27,600/- on the corporation and misused

the public money and thus, you have committed negligence in

duty intentionally.

Charge No.10 :-

By stating that the spare parts of the bull dodger have

been purchased from Bharat Earth Movers Ltd., you have torn

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out the pages of the inward register, which were arranged serial

wise and you attached page No.190 in place of it in the inward

register and made entry of receipt of the said spare parts in the

register afterwards and thereby tampered with the Government

records of the said inward register and committed abuse of

power.

2.5 It is also contended that the petitioner filed reply dated

02.09.2002 raising various contentions and after considering the

reply of the petitioner, the respondent - Corporation vide order

dated 06.09.2002 dismissed the petitioner from the services and

hence, this petition.

3. An affidavit-in-reply has been filed by the respondent -

Corporation and an affidavit-in-rejoinder has also been filed by

the petitioner.

4. Heard Mr.B. S. Patel, learned senior counsel for Ms.Harshal

Pandya, learned counsel appearing for the petitioner and

Mr.Maulik Nanavati for M/s.Nanavati & Co., appearing for the

respondent - Corporation.

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-: SUBMISSIONS ON BEHALF OF THE PETITIONER:-

5. Mr.Patel, learned senior counsel has submitted that the

impugned order passed by the Corporation is illegal, unjust and

arbitrary and against the principles of law. He has submitted that

the petitioner was appointed as Vehicle Pool Manger in 1988

and, thereafter, he was promoted as Deputy Executive Engineer.

He has submitted that the inquiry conducted is violation of

principles of natural justice and he was not given any opportunity

to give reply to the relevant documents, which were pertaining

to purchase of spare parts of buldozer and wheeldozer. While

referring to Section 56(3) of the Bombay Provincial Municipal

Corporation Act, 1949 (hereinafter be referred to as "the Act"),

Mr.Patel, learned counsel has submitted that the respondent -

Corporation has not provided sufficient opportunity of inspecting

the documents and, therefore, committed an act contrary to the

provisions of the Act. He has submitted that in view of the

observations of the Inquiry Officer, the petitioner cannot be held

guilty of the alleged charge and the action on the party of the

Inquiry Officer and the Disciplinary Authority holding the

petitioner guilty in absence of any prima facie evidence is illegal

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and arbitrary. He has submitted that the Inquiry Officer has

acted on presumption against the petitioner and he admitted in

his report that there is no direct evidence to show that the

petitioner got opened the account in the name of Bharat Earth

Movers Limited in the Bhagyodaya Cooperative Bank. He has

submitted that the Inquiry Officer and the Disciplinary Authority

have not considered the reply to the show-cause notice filed by

the petitioner and the final order of punishment would not reflect

dealing with such contentions which vitiates the inquiry.

According to Mr.Patel, learned counsel, the dismissal order is a

non-speaking order as it does not contain any details with regard

to the charges, the defence of petitioner and the report of Inquiry

Officer. He has submitted that in the year 1996, the criminal

complaint came to be lodged, which was not resulted into any

order till date and even the trial has been commenced yet. He

has referred to and relied upon the judgment and order passed

by the learned Single Judge in Special Civil Application No.499 of

1999, which came to be confirmed by the Division Bench of this

Hon'ble Court vide order dated 29.01.2005 passed in Letters

Patent Appeal No.50 of 2005. Mr.Patel, learned counsel has

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submitted that the impugned order dated 06.09.2002 be

quashed and set aside and the petitioner be reinstated in service

with all consequential.

5.1 Mr.Patel, learned senior counsel has relied upon the

following decisions:-

(1) Oryx Fisheries Private Limited Vs. Union of India and

others, (2010) 13 SCC 427;

(2) Union of India and others Vs. Jai Prakash Singh and

another, (2007) 10 SCC 712;

5.2 Over-and-above the oral submissions, the petitioner has

submitted written submissions.

1) The inquiry was conducted in violation of Principles of Natural Justice. The petitioner was not given opportunity to inspect the relevant and important documents as requested by him so as to enable him to file written defense statement. Those documents were pertaining to the purchase of spare parts of Bull dozer and Wheel dozer which was the main charge against him thus, the inquiry was conducted in violation of Principles of Natural Justice.

2) The inquiry was conducted in violation of Section 56 (3) of the Bombay Provincial Municipal Corporation Act, 1949 which also mandates reasonable opportunity to officer or a servant to show cause against dismissal, removal and reduction to a lower post. By not providing opportunity of inspecting the documents, the respondent has acted contrary to the provisions made in the BPMC Act.

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3) The petitioner cannot be held guilty in view of the observation made by the Inquiry Officer himself in the report to the fact that "For the reasons stated above, it is absolutely clear that the letter dated 19.10.1993, the receipts of payment and the invoices are all fake and not written and sent to the corporation by the BEML. It is difficult to say as to whose hand writing is there on those documents" (Page No. 40).

4) Thus, the action of the disciplinary authority as well as Inquiry Officer holding petitioner guilty in absence of any strong evidence to establish that the hand writing of letter dated 19.10.1993 was of the petitioner, is illegal, arbitrary and showing perversity of that part.

5) As per the report of Inquiry Officer, the letter dated 19.01.1993 had gone into hands of Assistant Municipal Corporation (PP), Deputy Engineer, Executive Engineer, Additional Superintendent Engineer, Chief Officer Forum, Chief Accountant, Chief Auditor and Municipal Commissioner. None of the above officers are even touched in this chapter meaning thereby, just to make the petitioner scope goat. Inquiry was held against the three persons out of whom two are exonerated and petitioner is dismissed.

6) One of the witnesses named Lalit Patel, Clerk stated that the pages from the account book were changed by Shree Takkar and Shree Mafatbhai (Both were Clerk). Despite this submission, no action was ever taken against those two employees and this aspect has not been considered by the Inquiry Officer as well as Disciplinary Authority.

7) The Inquiry Officer has acted on presumption against the petitioner. In the inquiry report, the Inquiry Officer himself has admitted the fact that there is no direct evidence to show that the petitioner got the account opened in the name of 'Bharat Earth Movers Limited' in the Bhagyodaya Co-operative Bank. The Inquiry Officer has observed that "It can safely be presumed that those two drafts were got deposited by petitioner in fictitious account". (Page No. 49 of petition). The Inquiry officer being quasi judicial authority should not act on assumption and presumption, thus, to act on presumption is the perversity on the part of the inquiry officer which is not permissible in eyes of law.

8) Neither the Disciplinary Authority nor Inquiry Officer has taken into consideration the final reply of petitioner submitted in response to show cause notice whereby the petitioner has submitted charge wise reply but same is no considered by Disciplinary Authority. The

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final punishment order would not also reflect dealing with the contentions of petitioner which vitiates the inquiry and therefore, final order is required to be quashed and set aside.

9) The final punishment order dismissing the petitioner from service is a non-speaking order because it does not contain any detail as to what were the charges, what was the defense of petitioner, what was the report of Inquiry Officer, hence the punishment order being non speaking order is required to be quashed and set aside.

10) In the year 1996, Criminal Complaint has been lodged but the same has not been resulted into any order till date. Even trial has been commenced yet.

• Case Laws in support of the petitioner:

i. Judgment dated 10.09.1023 passed in Special Civil Application No. 499 of 1999 (page 103), which is confirmed in LPA 50 of 2005 (page

122).

"7 I have considered the observations made by the Apex Court in respect to the inquiry report. The same applies to the facts of the present case. When the show cause notice has been served with the Report of the Inquiry Officer to the petitioner calling the explanation from the petitioner as to why the punishment proposed in the show cause notice should not be imposed, against which a detailed reply has been filed by the employee/present petitioner on 12.9.1998. That reply was received by the Respondent authorities but same has not been discussed or no reasons have been given as to why the said reply is not accepted by the Respondent Authority and on what ground it has been rejected by the Respondent authority. Therefore, that itself is contrary to the principle of natural justice. In view of this fact, on limited ground the Order suffers from non-application of mind and contrary to the principle of natural justice as it being an unreasoned Order. Therefore, this Order is required to be set aside."

ii. (2010) 13 SCC 427, Oryx Fisheries Private Limited Vs. Union of India and Ors.

"24 This Court finds that there is a lot of substance in the aforesaid contention. It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show cause proceeding. A show-cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice

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"27 It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show- cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.

"28 Justice is rooted in confidence and justice is the goal of a quasi- judicial proceeding also. If the functioning of a quasi judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against."

"29 In the instant case from the underlined portion of the show- cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show-cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid Rule has been framed in exercise of the power conferred under Section 33 of the Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature."

"31 It is of course true that the show-cause notice cannot be read hyper technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show- cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show- cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence"

iii. (2007) 10 SCC 712, Union of India and Ors. Vs. Jai Prakash Singh and Ors.

"6 As rightly submitted by learned counsel for the appellants,

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without indicating any reason, the High Court has described the policy to be arbitrary. Interestingly, the writ petitioner had not challenged the legality of the policy. In fact, he was claiming benefit under the policy. Unfortunately, the High Court travelled beyond the pleadings. It did not grant any opportunity to the present appellant to file even counter-affidavit and by a non- reasoned order struck down the policy. The Order of the High Court has been stayed by this Court on 1-9-1999.

"7. 11 Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reason, howsoever brief, in its order indicative of an application of its mind all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable."

"12 Even in respect if administrative order Lord Denning. M.R. in Breen v. Amalgamated Engg. Union observed: (All Er p. 1154h) the giving of reasons is one of the fundamentals of good administration.' In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: 'Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision of conclusion arrived at.' Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveal the 'inscrutable face of the sphinx' it can, by its silence, render it virtually for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know whey the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The inscrutable face of a sphinx' is ordinarily incongruous with a judicail or quasi-judicial performance."

-:SUBMISSIONS ON BEHALF OF THE RESPONDENT:-

6. Mr.Nanavati, learned counsel appearing for the respondent

- Corporation has submitted that the petitioner was granted 15

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days time to file reply against show-cause notice dated

27.06.2002 and he had submitted his reply after expiry of 15

days i.e. on 02.09.2002 and after considering relevant facts, the

competent authority passed final order on 06.09.2002. According

to Mr.Nanavati, learned counsel, the disciplinary order is legal

one and there is application of mind to the reply filed by

petitioner to the show-cause notice. So far as the judgment and

order dated 10.09.2003 passed by this Court in Special Civil

Application No.499 of 1999 is concerned, he has submitted that

the facts of said case are different and not relevant to the facts

of the present case. He has submitted that there is specific Rules

regarding procedure to be followed while conducting the

departmental inquiry against the employee and after following

due procedure of law and after giving full opportunity to the

petitioner, the impugned order of dismissal was passed by the

Corporation. It is submitted by Mr.Nanavati, learned counsel that

the charge-sheet was issued and, thereafter, independent retired

judicial officer was appointed as an Inquiry Officer and the

petitioner was given full opportunity of cross-examine the

witnesses and he has examined some of the witnesses and also

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dropped some of the witnesses. He has submitted that after

considering the detailed reply filed by the petitioner and

completion of inquiry, the Inquiry Officer found guilty to the

petitioner for the charges levelled against him and, thereafter,

order was passed by the competent authority relying and

referring to the detailed reply filed by the petitioner. He has

submitted that this Court has very limited scope to interfere with

the finding of facts recorded by the Inquiry Officer, which has

been considered by the competent authority. According to

Mr.Nanavati, though the findings recorded by the Inquiry Officer

in the inquiry report, no further or elaborate reasons are required

to be given by the Disciplinary Authority. He has submitted that

the petition being meritless deserves to be dismissed.

6.1 Mr.Nanavati, learned counsel has relied upon the following

decisions:-

(1) Boloram Bordoloi Vs. Lakhimi Gaolia Bank and others

reported in (2021) 3 SCC 806;

(2) Union of India and others Vs. Subrata Nath reported in

2022 SCC OnLine SC 1617;

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(3) The Indian Oil Corporation and others Vs. Ajit Kumar Singh

& Another rendered in Civil Appeal No.3663 of 2023 dated

17.05.2023 by the Hon'ble Supreme Court = 2023 AIR SC

2388.

7. It is worthwhile to refer to the decisions relied upon by

learned counsel appearing for the respective parties.

7.1 In the case of Boloram Bordoloi (supra), the Hon'ble

Supreme Court has held and observed in para-11 as under:-

"11. We are of the view that the judgment of this Court in the case of Managing Director, ECIL, Hyderabad (supra) is not helpful to the case of the appellant. Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Board's decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/200506. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons."

7.2 In the case of Subrata Nath (supra), the Hon'ble Supreme

Court has held and observed in paras - 14 to 18, 25 to 29 as

under:-

"14. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in

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circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.

15. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, (1964) 4 SCR 718 this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or

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based on no evidence at all, a writ of certiorari could be issued.

                                 xxx xxx        xxx

                                 xxx xxx        xxx

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." [Emphasis laid]

16. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 , a two Judge Bench of this Court held as below :

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 , Union of India v. G. Ganayutham, (1997) 7 SCC 463 , Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 and High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC

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416 ). [Emphasis laid]

17. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569 , a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :

"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."

18. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran, (2015) 2 SCC 610 held thus :

"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;

(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 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."

25. We have noted above that the findings of the Disciplinary Authority had met with the approval of the Appellate Authority and the Revisional Authority. However, the learned Single Judge overturned the order of dismissal from service and converted the same to compulsory retirement on the sole ground of non- availability of the original record, more specifically, the Beat Book, while giving a go-by to the extract of the Beat Book that was produced before the Inquiry Officer and the fact that the respondent had admitted the said document. The learned Single Judge also ignored the fact that the Beat Book was not the only piece of document produced before the Inquiry Officer. There were depositions of other witnesses produced by the department to prove the charges levelled against the respondent and the said witnesses had corroborated the version of the Department. At no stage, did the learned Single Judge observe that the departmental inquiry was vitiated on account of violation of the rules of natural justice or that

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the inquiry had been conducted in gross violation of the statutory rules.

26. The Division Bench went a step further and proceeded to reappreciate the evidence and observed that it was not persuaded to conclude that such a major theft of 800 kgs comprising of 42 bundles of copper wires could have happened "in the blink of an eyelid" despite holding that the view of the learned Single Judge regarding non- production of the original Beat Book was unsustainable. The Court held that the allegation of connivance in the theft levelled against the respondent was presumptive and there wasnt enough evidence to conclude that theft of such a magnitude could have happened during the duty period of the respondent alone, yet charge-I pertaining to negligence and dereliction of duty on the part of the respondent was sustained. At the same time, the order passed by the learned Single Judge directing substitution of the punishment of dismissal with that of compulsory retirement was set aside and the respondent was directed to be reinstated in service with full back wages, while giving liberty to the Disciplinary Authority to issue a fresh order of punishment commensurate to the negligence and dereliction of duties on his part, except for punishment of dismissal or removal from service or compulsory retirement.

27. We are unable to commend the approach of the learned Single Judge and the Division Bench. There was no good reason for the High Court to have entered the domain of the factual aspects relating to the evidence recorded before the Inquiry Officer. This was clearly an attempt to reappreciate the evidence which is impermissible in exercise of powers of judicial review vested in the High Court under Article 226 of the Constitution of India. We are of the opinion that both, the learned Single Judge as well as the Division Bench, fell into an error by setting aside the order of dismissal from service imposed on the respondent by the Disciplinary Authority and upheld by the Appellate Authority.

28. We find ourselves in complete agreement with the findings returned by and conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate Authority and upheld by the Revisional Authority in respect of both the Articles of Charge levelled against the respondent and the punishment imposed on him. The respondent being a member of the disciplined force, was expected to have discharged his duty diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs. copper wires

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from the spot where he was performing his duty. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and stoppage of increment for two years without cumulative effect on one occasion. In such circumstances, the desirability of continuing the respondent in the Armed Forces is certainly questionable and the Disciplinary Authority could not be expected to wear blinkers in respect of his past conduct while imposing the penalty of dismissal from service on him.

29. Therefore, it is deemed appropriate to quash and set aside the impugned judgment and order dated 9th September, 2021 passed by the Division Bench of the High Court of Calcutta in FMA No.679 of 2019 and FMA No. 680 of 2019 and the order dated 25th June, 2018 passed by the learned Single Judge in WP No.14102 (W) of 2009, while restoring the findings and the conclusion arrived at by the Disciplinary Authority, as elaborated in the order dated 27th November, 2008, duly upheld by the Appellate Authority, vide order dated 3rd February, 2009 and endorsed by the Revisional Authority, vide order dated 19th May, 2009. In our view, the penalty of dismissal from service imposed on the respondent is commensurate with the gross negligence and dereliction of duty on his part."

7.3 In the case of Ajit Kumar Singh (supra), the Hon'ble

Supreme Court has held and observed in paras-6 and 7 as

under:-

"6. The facts of the case leading to the issuance of chargesheet, initiation of departmental inquiry, the report of the inquiry officer and the punishment inflicted upon respondent no.1 have already been narrated in the preceding paragraphs. It is not in dispute that during the course of inquiry, fair opportunity of hearing was afforded to the respondent no.1 at every stage. This was even found by the learned Single Judge while dismissing the writ petition challenging the punishment inflicted upon him. The judgment passed by the Division Bench of the High Court shows that matter was dealt with in a manner as if it was the first stage of the case,

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namely, the inquiry was being conducted and inquiry report was being prepared, which is not the scope in judicial review. The views expressed by this Court on the scope of judicial review in Deputy General Manager (Appellate Authority) vs. Ajai Kumar Srivastava, (2021) 2 SCC 612 are extracted below:

"24. It is thus settled that the power of judicial review, of the constitutional courts, is evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

25-27 xx xx xx

28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained ."(emphasis supplied)

Similar view was expressed in the later judgment of this Court in Ex- Const/Dvr Mukesh Kumar Raigar vs. Union of India and Ors, (2023) SCC Online SC 27.

7. If the facts of the case are examined in the light of the settled principles of law in scope of judicial review, we find that the Division Bench of the High Court proceeded to reappreciate the entire

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evidence as if conviction in a criminal trial was being re-examined by the next higher court. The stand taken by the respondent no.1 was that he was on leave and there was no question of his tampering with any document. His contention was that merely because he had the duplicate key of the drawer where the documents were kept, he cannot be made responsible for any tampering. However, there was no answer to the finding recorded by the Inquiry Officer in the Inquiry Report, namely, that the changed form of quotation of M/s. Laxmi Singh contained original signature of respondent no.1. The fact that this "Form of quotation"

was changed is not in dispute. When the changed form of quotation also contained signature of respondent no.1, it clearly established his involvement in the tampering of document. This fact has not even been noticed by the Division Bench of the High Court.

8. Having considered the materials on record and having

considered the submissions canvassed by learned counsel

appearing for both the sides, the only question that falls for

consideration by this Court is whether the petitioner is entitled to

any relief as prayed for in this petition.

9. 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.

10. In the case of Dwarka Prasad Tiwar (supra), the Hon'ble

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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 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."

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11. 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 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

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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."

12. 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.

13. In the case of C. S. Amin (supra), this Court has held and

observed in paras - 29, 30 and 31 as under:-

"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: "

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(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 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

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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 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

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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, 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

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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 '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.3369-70In 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

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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 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

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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 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."

14. 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 re- appreciation 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 however grave it may be, or go into the proportionality of punishment unless

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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, reappreciating 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;

(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;

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(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 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

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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 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

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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 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

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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 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.

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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. ...."

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."

15. So far as the legal position on the aspect of Section 56 (3)

of the Act which is relied upon by the learned counsel for the

petitioner is concerned, it provides of reasonable opportunity,

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which reads thus:

"56(3) No officer or servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal."

16. So far as the judgment and order passed by the learned

Single Judge in Special Civil Application No.499 of 1999, which

came to be confirmed by the Division Bench of this Hon'ble Court

vide order dated 29.01.2005 passed in Letters Patent Appeal

No.50 of 2005 is concerned, the facts of that case and the

present case are totally different and it is not applicable to the

facts of the present case. From 2001, the Hon'ble Supreme Court

has considered the fact that the High Court, while exercising

jurisdiction under Articles 226 and 227 of the Constitution of

India, has very limited scope to interfere with the findings

recorded by the Inquiry Officer and confirmed by the Disciplinary

Authority.

17. 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

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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.

18. 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 facts 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.

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19. 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.

20. For the foregoing reasons, this petition fails and is hereby

dismissed. Rule is discharged. Interim relief, if any, shall stand

vacated forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J)

V.R. PANCHAL