Madhya Pradesh High Court

M.P.Gautam vs The Food Corporation Fo India on 10 March, 2022

Author: Sanjay Dwivedi

                                 1
                                             Writ Petition No.5964 of 2009



HIGH COURT OF MADHYA PRADESH AT JABALPUR

                Writ Petition No.5964 of 2009

Between:-
                M.P. Gautam, Aged about 60 years, S/o Late
                Mahesh Prasad Gautam, R/O 69, G.C.F
                Housing Society at Ashok Nagar, Adhartal,
                Tahsil and District Jabalpur (M.P.).


                                                     ....Petitioner
AND

            1. The Food Corporation of India, Through its
                Managing Director, Head Office, R/O 16/20,
                Barakhamba Lane, Cannaught Place, New
                Delhi.
            2. Area Manager, Food Corporation of India,
                Vikas Asha Kendra, 2722, Napier Town,
                Jabalpur (M.P.).
            3. General Manager, Food Corporation of India,
                Chetak Building, Maharana Pratap Nagar,
                Bhopal (M.P.).
            4. The Executive Director, Food Corporation of
                India (West), "Dheeraj Arma" IInd Floor, Near
                Kanitkar Police Station at Bandra (Mumbai).
            5. The Area Manager, Food Corporation of India,
                F.S.D. Gwalior (M.P.).
                                                .... Respondents

Date of Order            10.03.2022
Bench Constituted        Single Bench
Order delivered by       Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved         ---
for reporting

                                                   Writ Petition No.5964 of 2009




Name of the counsel For Petitioner:              Mr.    S.P.      Sharma,
for parties         Advocate.

For respondents/FCI: Mr. K.S. Wadhwa, Advocate.

Law laid down ---

Significant Para Nos. ---

Reserved on : 15.12.2021.

Delivered on : 10.03.2022.

(O R D E R) (10.03.2022) By means of this petition filed under Article 226 of the Constitution of India, the petitioner has assailed two different orders i.e. order dated 08.08.2008 (Annexure-A) and order dated 31.03.2009 (Annexure-AA). Vide order dated 08.08.2008 (Annexure-A), the Disciplinary Authority after receiving explanation of show-cause notice issued to the petitioner, inflicted a minor penalty of censure upon him and also directed recovery of amount of Rs.4,60,228/- from him. Aggrieved with the order dated 08.08.20008 (Annexure-A), the petitioner preferred an appeal which was dismissed by the Appellate Authority vide order dated 31.03.2009 (Annexure-AA).

2. In order to resolve the controversy giving rise to this petition, it will be apt to notice certain background events for clear understanding of the facts and dispute involved in the case which are as under:-

(2.1) Initially, the petitioner joined the services in the respondent/Department as Assistant Grade-III (Depot) also known as AG-III (D) at Food Storage Depot, Balaghat. The services of the petitioner were confirmed w.e.f. 04.08.1972. Thereafter, by order dated 15.03.1990, the petitioner was

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promoted to the post of AG-II (D) and directed to be posted at Food Storage Depot (F.S.D.) Jabalpur. After completing the period of probation of a year, his services were confirmed on the said post on 15.03.1991. Thereafter, vide order dated 24.12.2003, the petitioner got further promotion to the post of AG-I (D) and was directed to be posted at F.S.D. Katni.

(2.2) While performing the duties as AG-I (D), the petitioner fell sick and had gone for a surgical operation which was to be performed at Apollo Hospital, Bengaluru (Karnatka) and then remained confined to bed w.e.f. 16.08.2007 to 08.10.2007. The petitioner before proceeding on leave w.e.f. 16.08.2007 to 12.10.2007, submitted an application on 15.08.2007 which was duly recommended by the Competent Authority on 19.09.2007.

(2.3) After availing the leave, the petitioner joined the services on 22.10.2007. Thereafter, alleging misconduct and misbehaviour, a memo dated 24.04.2008 (Annexure-P/5) was served upon him proposing therein that disciplinary action is proposed to be taken against him as per Regulation 60 of the Food Corporation of India (Staff Regulations), 1971 (in brief the 'Regulations, 1971'). In the memo, it was alleged against the petitioner that for the irregularities alleged to have been committed by him during the period starts from August, 2007 to October,2007, he was found solely responsible for the loss occurred to the respondents/Corporation because despite issuing

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the order by the District Office of Jabalpur, he proceeded on long leave without handing over the charge of the depot to anybody and as such, he had not performed the duties of AG-I (D) satisfactory. It was also alleged that had he been vigilant and performed the duties with all care, then the loss as has been pointed out in Katni Depot, would not have been done. In the memo, it was proposed that minor penalty as prescribed in Clauses (i) to (iv) of Regulation 54 of the Regulations, 1971, can be inflicted upon him.

(2.4) The petitioner, in response to memo dated 24.04.2008, had submitted his reply on 30.05.2008 (Annexure-P/7). Thereafter, in furtherance to momo dated 24.04.2008, a corrigendum had also been issued upon the petitioner clarifying therein the actual loss suffered by the respondents/Corporation.

(2.5) The Disciplinary Authority, thereafter passed an order on 08.08.2008 (Annexure-A) inflicting the punishment of censure upon the petitioner and also directed to recover the amount of loss suffered by the respondents/Corporation due to shortage of food-grains in Katni Depot where the petitioner was holding the post of depot in-charge at the relevant point of time. Though, the said order was appealed, but the Appellate Authority vide order dated 31.03.2009 (Annexure-AA) affirming the order passed by the Disciplinary Authority, dismissed the petitioner's appeal. Hence, this petition.

3. The impugned orders passed by the Disciplinary

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Authority as well as by the Appellate Authority have been assailed by the petitioner mainly on the grounds that the same suffer from violation of principle of natural justice and contrary to the procedure prescribed under Regulation 71 of the Regulations, 1971 for imposing a minor penalty and as such, they deserve to be quashed.

4. The respondents have filed their reply taking stand therein that the petitioner at the relevant point of time was holding the post of AG-I (D) in Food Storage Depot, Katni and as such, he had over all charge of the depot. It is also stated in the reply that even during the period when the petitioner was on leave, he was the in-charge of the said depot because he did not handed over the charge of the said depot to anybody. Respondents have denied the allegation for not following the procedure prescribed under Regulation 71 of the Regulations, 1971. It is stated by the respondents in their reply that while deciding the petitioner's appeal, the Appellate Authority had discharged its obligation and fulfilled the requirement of Regulation 72 of the Regulation, 1971.

5. In response to the reply of the respondents, the petitioner has filed a rejoinder reiterating the same facts which have been mentioned in the petitioner saying that the enquiry was not conducted properly, principle of natural justice had been violated before passing the impugned orders and proper procedure prescribed for imposing the minor penalty as per Regulation 71 had also not been followed.

6. Mr. Sharma, learned counsel for the petitioner is challenging the impugned orders mainly on the grounds that those have been issued by the Authority in violation of Regulations 58 and 72 of the Regulations, 1971. He submits that Regulation 58 very clearly provides that even for imposing minor penalty, a regular departmental enquiry has to be

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initiated, but according to him, in this case only after issuing a show-cause notice and asking reply to the same, minor penalty of censure and recovery has been imposed upon the petitioner. He also submits that Regulation 72 provides the procedure in which appeal is to be decided, but the Appellate Authority without following the same, had passed the order and dismissed the appeal preferred by the petitioner. He submits that while passing the impugned orders, the Disciplinary Authority and Appellate Authority had not followed the procedure prescribed, therefore, the impugned orders are liable to be set aside. He also submits that the Disciplinary Authority though inflicted penalty of censure and recovery, but for one lapse, two types of punishment simultaneously cannot be inflicted unless specific reasons are assigned by the Disciplinary Authority. He submits that in this case, no specific reason was assigned as to why when penalty of censure is inflicted then what was the requirement for imposing additional punishment of recovery. Learned counsel for the petitioner has confined his arguments to the extent that minor penalty even otherwise as per Regulation 71, cannot be imposed upon the petitioner without conducting any regular departmental enquiry. In support of his contention, he has placed reliance upon various judgments viz. AIR 1936 Privy Council 253 (2) [Nazir Ahmad Vs. King Emperor]; 1999 AIR SCW 968 [Babu Verghese and others Vs. Bar Council of Kerala and others]; (2007) 1 SCC 437 [Mathura Prasad Vs. Union of India and others]; AIR 1986 SC 1040 [R.P. Bhatt Vs. Union of India and others]; AIR 1986 SC 1173 [Ram Chander Vs. Union of India and others]; AIR 1994 Kerala 52 [K.G. Vijayan Vs. The District Manager, Food Corpn. of India and others]; 1991 Supp (1) SCC 504 [Kulwant Singh Gill Vs. State of Punjab]; W.P. No.4163/1995 [Arvind Kumar Dubey Vs. The Food

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Corporation of India and others] and W.P. No.16132/2003 [M.M. Mudgal vs. State of Madhya Pradesh and others].

7. Mr. Wadhwa, learned counsel for the respondents submits that the order passed by the Disciplinary Authority inflicting minor penalty, is a valid order because Regulation 58 does not provide that in each and every matter for inflicting penalty, a regular departmental enquiry is required to be conducted. He submits that from perusal of reply to the show- cause notice, it is clear that the petitioner himself nowhere asked for a regular departmental enquiry. He further submits that even after perusal of reply to the show-cause notice, it can be easily gathered that the petitioner had not disputed any factual aspect so as to ascertain the truth for which a regular departmental enquiry was required to be conducted. He also submits that Regulation 58 provides certain specific conditions under which a regular departmental enquiry is required before inflicting a minor penalty. He submits that although the petitioner had taken a stand that for a particular period he was on leave, but being a depot in-charge, he had not handed over the charge of the depot to anybody and because of that if any loss of food-grains is occurred, then the petitioner can be held responsible for the same. As pre the respondents, Regulation 74 prescribes a regular review under which the Authority has the power to set-aside the order of Disciplinary Authority, but that remedy has not been availed by the petitioner and instead of availing the said alternative suitable remedy, he has filed this petition and as such, without availing the alternative remedy, this petition is not maintainable. As per Mr. Wadhwa, before passing the orders by the Disciplinary Authority and also by the Appellate Authority, the petitioner was granted full opportunity of hearing and as such, impugned orders do not call for any interference.

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8. Considering the rival contentions of learned counsel for the parties, the core question emerges to be considered as to whether the impugned orders inflicting the penalty upon the petitioner suffer from any procedural defect or as to whether the orders have been passed by the Authorities following the principle of natural justice?

9. Learned counsel for the petitioner though challenged the impugned orders mainly on the ground that even for inflicting a minor penalty upon the petitioner, the procedure for conducting a regular departmental enquiry as provided in Regulation 71 has not been followed, therefore, the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority deserve to be set aside. Hence, it is to be seen as to whether the procedure prescribed in Regulation 71 whereby the service conditions of the petitioner are governed, has been followed or not. Regulation 60 of the Regulations, 1971 deals with the procedure for imposing minor penalty which reads as under:-

"60. Procedure for imposing minor penalties:

(1) Subject to the provisions of Sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after:

(a) informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in Sub-regulation (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;

(c) taking the representation, if any, submitted by the employee under clause (a) and the record of inquiry, if any, held under clause(b) into

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consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour.

(2) Notwithstanding anything contained in clause(b) of Sub-regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under clause(a) of the sub- regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employee or to withhold increments of a pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in Sub- regulation (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty.

(3) The record of the proceedings in such cases shall include:

(i) a copy of the intimation to the employee of the proposal to take action against him,

(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the inquiry;

(v) the findings on each imputation of misconduct or misbehaviour; and

(vi) the orders on the case together with the reasons therefor."

A glance of the aforesaid provision makes it clear that the Disciplinary Authority was not under obligation for conducting a regular departmental enquiry before inflicting the punishment as prescribed under Regulation 54, if the same is under Clauses (i) to (iv) of Regulation 54. However, sub-

regulation (2) of Regulation 60 does prescribe as to under what circumstances even for imposing a minor penalty, the Disciplinary Authority is under obligation to conduct a regular departmental enquiry. From perusal of punishment inflicted upon the petitioner, it is clear that respective regulation is not

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applicable in the petitioner's case because the nature of punishment inflicted upon the petitioner does not cover under sub-regulation (2) of Regulation 60 so as to make obligatory for the Disciplinary Authority to conduct a regular departmental enquiry even though minor penalty was being inflicted. The punishment of censure and recovery of an amount calculated to be a loss caused to the respondents/Corporation by the petitioner had been inflicted upon him and the said penalty is not a penalty which is referred under sub-regulation (2) of Regulation 60, therefore, in my opinion, as per the stand taken by the respondents, there is no violation of any provision of the Regulations, 1971 in decision making process. The principle of natural justice cannot be said to have been violated by the respondents while not conducting a regular departmental enquiry.

10. In the case of Nazir Ahmad (supra), following law has been laid down by the Privy Council:-

"....The rule which applies is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

If the aforesaid law laid down by the Privy Council is applied in the present case, then the law on which learned counsel for the petitioner has placed reliance goes against the petitioner because Regulation 71 provides a manner for inflicting minor penalty following a particular procedure and as such, the Authority had not committed any wrong while inflicting the punishment by following the procedure as prescribed under the Regulations, 1971.

11. In the case of Babu Verghese (supra), the Supreme Court has observed as under:-

"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or

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not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Ind App 372 : AIR 1936 PC 253 who stated as under:

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098 : AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan 1962(1) SCR 662 : AIR 1961 SC 1527. These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh & Ors, AIR 1964 SC 358 : (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."

But as has been discussed hereinabove, the legal position on which the petitioner is relying upon is otherwise and that has been followed by the Authority in the present case because Regulation 60 has been followed by the Authority for imposing minor penalty upon the petitioner.

12. Further, in the case of Mathura Prasad (supra), the Supreme Court has observed as under:-

"19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.

20. In S.N. Chandrashekar v. State of Karnataka [(2006) 3 SCC 208] this Court held: (SCC pp. 221-22, paras 34-36) "34. The Authority, therefore, posed unto itself a wrong question. What, therefore, was

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necessary to be considered by BDA was whether the ingredients contained in Section 14-A of the Act were fulfilled and whether the requirements of the proviso appended thereto are satisfied. If the same had not been satisfied, the requirements of the law must be held to have not been satisfied. If there had been no proper application of mind as regards the requirements of law, the State and the Planning Authority must be held to have misdirected themselves in law which would vitiate the impugned judgment.

35. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai [(2005) 7 SCC 627] this Court referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241 : 2005 SCC (L&S) 395] held: (SCC p.

637, para 14) '14. Even a judicial review on facts in certain situations may be available. In Cholan Roadways Ltd. v. G.

Thirugnanasambandam [(2005) 3 SCC 241 : 2005 SCC (L&S) 395] this Court observed: (SCC p. 253, paras 34-35) "34. ... It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact.

A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is 'preponderance of probability' and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.

35. Errors of fact can also be a

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subject-matter of judicial review.

(See E. v. Secy. of State for the Home Deptt. [(2004) 2 WLR 1351 (CA)]) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled 'Judicial Review, Appeal and Factual Error' published in 2004 Public Law, p. 788." ' (See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh [(2005) 3 SCC 232 : 2005 SCC (L&S) 387] , SCC paras 23 & 24.)

36. The order passed by the statutory authority, it is trite, must be judged on the basis of the contents thereof and not as explained in affidavit. (See Bangalore Development Authority v. R. Hanumaiah [(2005) 12 SCC 508] .)"

The said dicta shall apply to the facts of the present appeal also."

As per the petitioner, the Authority failed to consider the fact that he cannot be held responsible for any loss suffered during the period when he was not available on duty. However, I am not convinced with the submissions made by learned counsel for the petitioner nor supporting his stand that the Authority had passed the orders without applying its mind and without taking into consideration the fact that the petitioner was on leave on a particular period. However, the respondents have taken a stand that though the petitioner went on leave for a particular period, so, he had been asked to handover the charge of depot, but despite the clear order issued by the office of Jabalpur, he did not handover the charge of depot meaning thereby no other person was handling the depot during the period when irregularity was pointed out and as such, for the quantity of food-grains reduced to be expected available quantity, he is the person who could be held responsible and on doing the same, the Authority had not committed any wrong, therefore, the impugned orders cannot be said to be without any application of mind.

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13. In the case of R.P. Bhatt (supra), the Supreme Court dealing with the obligation of the Appellate Authority has observed that if a particular obligation is cast upon the Appellate Authority, then the said obligation must be discharged by the Appellate Authority while deciding the appeal. But as per the petitioner, in his case, the Appellate Authority failed to follow the procedure and the manner in which the appeal has to be decided. In this regard, the respective provision of Regulation 72 wherein the obligation upon the Appellate Authority and the manner in which the appeal is to be decided is prescribed, needs to be seen. Therefore, Regulation 72 of the Regulations, 1971 is reproduced hereinbelow:-

"72. Consideration of appeal:

(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Regulation 66 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 54 or enhancing any penalty imposed under the said Regulation, the appellate authority shall consider -

(a) whether the procedure laid down in these regulations has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions under these regulations or in the failure of justice;

(b) whether the finding of the disciplinary authority are warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;

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*Provided that if the enhanced penalty which the appellate authority proposes to impose is a major penalty specified in clauses (v) to (ix) of Regulation 54 and an inquiry as provided in Regulation 58 has not already been held in the case, the appellate authority shall direct that such an enquiry be held in accordance with the provisions of Regulation 58 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If the appellate authority decides to enhance the punishments but an enquiry has already been held as provided in Regulation 58, the appellate authority shall give a show cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The appellate authority shall pass final order after taking into account the representation, if any, submitted by the employee.

(3) In an appeal against any other order specified in regulation 68, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable."

A glance of the aforesaid provision further makes it crystal clear that in the present case while passing the order (Annexure-AA), the Appellate Authority had not committed any wrong and sufficiently discharged its obligation. It cannot be said that the Appellate Authority at the time of deciding the petitioner's appeal had not applied its mind. On the contrary, each and every aspect of the matter was properly considered while holding the petitioner guilty for causing loss to the respondents/Corporation. In the order, the Appellate Authority had clearly observed that the petitioner who was the custodian of stocks at Katni Depot before proceeding on such a long leave, neither handed over the charge nor keys of the depot and during that period, the storage loss at Katni Depot ranged from 0.8% to 1.5% for which he was solely responsible. Thus, in my opinion, the order passed by the Appellate Authority does not suffer from any procedural irregularity nor the same has been passed without application of mind.

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14. In the case of Ram Chander (supra) on which learned counsel for the petitioner has placed reliance does not help him because the petitioner otherwise failed to substantiate as to how, the Disciplinary Authority and the Appellate Authority have violated the respective provisions of Regulations, 1971 under which, the disciplinary proceeding initiated and punishment was inflicted upon the petitioner.

15. The case of Kulwant Singh Gill (supra) on which learned counsel for the petitioner has placed reliance, is also not applicable in the present case because in the said case, the Supreme Court has considered the very provision of respective disciplinary rule under which regular departmental enquiry was required to be initiated even before imposing a minor penalty, but it further clarified the nature of minor penalty and its impact would be the same as has been specified in Regulation 60 of the Regulations, 1971.

16. In the case of Arvind Kumar Dubey (supra), the High Court has found that the Appellate Authority had not discharged its obligation and as such, remitted the matter for reconsideration. But, here in this case, there is nothing available on record to indicate that the Appellate Authority failed to discharge its obligation while deciding the petitioner's appeal. Therefore, the said case has no relevance in the present case.

17. However, in the case of M.M. Mudgal (supra), the High Court relying upon the case of Kulwant Singh Gill (supra) observed that merely after giving a show-cause notice, punishment as has been inflicted though it was a minor penalty, but cannot be inflicted because it falls within the category for which rules very specifically provides a regular departmental enquiry. However, here in this case as has already been discussed and clarified that the nature of penalty inflicted upon

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the petitioner does not require any regular departmental enquiry and as such, Regulation 60 has not been violated.

18. So far as the submission as has been made by learned counsel for the petitioner that by inflicting the punishment of censure and recovery, the Disciplinary Authority has imposed double punishment upon the petitioner is concerned, the same has no substance for the reason that recovery by way of punishment is nothing, but an action taken by the respondents to recover the amount from the petitioner as they suffered loss of that amount because of fault of the petitioner. Even otherwise, there is no bar under the law for inflicting such punishment as it is not a case of double jeopardy.

19. It is a settled principle of law that in the matter of disciplinary proceedings, the scope of interference under Article 226 of the Constitution of India is very limited with the High Court. The orders passed by the Disciplinary Authority and the Appellate Authority can be interfered with if it is found that the decision making process has been completed in violation of the principle of natural justice or the punishment inflicted does not commensurate with the charge levelled against the petitioner or the finding given by the Enquiry Officer is perverse, based upon no evidence. But none of the grounds are available to interfere in the orders passed by the Disciplinary Authority as well as the Appellate Authority.

20. The Supreme Court in the case reported in (2015) 2 SCC 610 [Union of India and others Vs. P. Gunasekaran] has observed as under:-

"20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the

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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.

21.The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others(1995) 6 SCC 749, Union of India and another v. G. Ganayutham (1997) 7 SCC 463, Om Kumar and others v. Union of India (2001) 2 SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association (2007) 4 SCC 669, Coal India Limited v. Mukul Kumar Choudhuri (2009) 15 SCC 620 and the recent one in Chennai Metropolitan Water Supply (2014) 4 SCC 108."

21. Further, the Supreme Court in the case reported in (2019) 4 SCC 660 [S. Sreesanth Vs. Board of Control For Cricket in India and others] has also considered the scope of interference in a matter of disciplinary proceeding and has observed as under:-

"40.There being specific allegations made against the appellant in the show-cause notice as noticed above, it was incumbent on the appellant to have explained the evidence and circumstances which were sought to be relied on against the appellant. In the disciplinary proceedings a delinquent has to explain circumstances and evidence relied against him. It is true that the charges have to be proved by the BCCI for taking any action under the Anti-Corruption Code. The disciplinary committee of the BCCI had jurisdiction to form its own opinion after considering the evidence on record including the telephone conversation between Sreesanth and Jiju Janardhan and other evidence on the record. The conclusion drawn by the disciplinary committee on the

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basis of the material which is recorded in paras 12 and 13 as noted above cannot be said to be suffering from any infirmity which may warrant judicial review by the constitutional courts. The learned Single Judge held that "If the evidence as a whole is appreciated, it can easily be concluded that Sreesanth had no direct link in spot fixing or betting". Further, the learned Single Judge held that "Assuming that Sreesanth had knowledge of such betting, this Court is of the view that the punishment already suffered by him of 4 years of the ban from all format of the cricket, nationally and internationally, is sufficient to meet ends of justice". As noted above the constitutional court in exercise of jurisdiction of judicial review of disciplinary proceedings conducted under the Code of Conduct framed by the BCCI will interfere only when conclusions of the disciplinary committee are perverse or based on no evidence. On appreciation of evidence, it is not open for the High Court or this Court to substitute its own opinion based on the appreciation of material on record on the charges proved."

(Emphasis Supplied)

22. Recently, the Supreme Court in Civil Appeal No.3820/2020 [Director General of Police, Railway Protection Force and others Vs. Rajendra Kumar Dubey] has observed as under:-

"In State of Andhra Pradesh v. S. Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however, interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed 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. If, however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a

Writ Petition No.5964 of 2009

matter which can be permitted to be canvassed before the High Court in a writ petition."

23. Therefore, in view of the law laid down by the Supreme Court in the cases referred above, confining the scope of interference in the matter of departmental enquiry by the High Court exercising power provided under Article 226 of the Constitution of India, I do not find that the present case is an example of any such defect so as to interfere in the impugned orders. The grounds and the submissions made by learned counsel for the petitioner, therefore, are without any substance and as such, the impugned orders dated 08.08.2008 (Annexure-A) and 31.03.2009 (Annexure-AA) are hereby maintained.