Drak Prasad Tiwari vs Union Of India
2023 Latest Caselaw 20835 MP

Madhya Pradesh High Court

Drak Prasad Tiwari vs Union Of India on 11 December, 2023

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari, Pranay Verma

                               1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                        BEFORE
 HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                           &
         HON'BLE SHRI JUSTICE PRANAY VERMA
                 ON THE 11 th OF DECEMBER, 2023
                  WRIT PETITION No. 5964 of 2014

BETWEEN:-
DRAK PRASAD TIWARI S/O LATE SHRI BABULAL
TIWARI, AGED ABOUT 53 YEARS, OCCUPATION:
PERMANENT CIVIL MOTOR DRIVER MCTE R/O 215
GUJARKHEDA TEHSIL MHOW DISTT INDORE(MADHYA
PRADESH)

                                                         .....PETITIONER
(SHRI JITENDRA VERMA, LEARNED COUNSEL FOR THE PETITIONER [P-
1])

AND
1.    UNION OF INDIA THROUGH CHIEF SECRETARY
      MINISTRY OF DEFENCE NEW DELHI (DELHI)

2.    DIRECTOR GENERAL OF SIGNALS (SIGS-4) (C),
      GENERAL STAFF BRANCH INTEGRATED H.Q. -
      MOD(ARMY) HQ, P.O NEW DELHI (DELHI)

3.    MILITARY COLLEGE OF TELECOMMUNICATION
      ENGINEERING,      MHOW,      THROUGH
      COMMANDANT (MADHYA PRADESH)

4.    MILITARY COLLEGE OF TELECOMMUNICATION
      ENGINEERING, MHOW (MADHYA PRADESH)
      THOUGH LT. GENERAL COMMANDANT

                                                      .....RESPONDENTS
(SHRI ASHUTOSH SHARMA, LEARNED COUNSEL FOR THE
RESPONDENT [R-2])



      This petition coming on for order this day, Justice Sushrut Arvind
                                    2
Dharmadhikari passed the following:
                                     ORDER

This writ petition under Article 226/227 of the Constitution of India challenges the order dated 06.05.2014(Annexure P-18) passed by the Central Administrative Tribunal,(referred to as "CAT" hereinafter) Jabalpur Bench Circuit Sitting, Indore in O.A. No. 1069/2012 whereby the petitioner has been made to compulsory retire vide order dated 28.12.2007(Annexure P-2) issued by the respondent no.4. The petitioner has also challenged the appellate order dated 14.11.2012(Annexure P-17) passed by the respondent no.2 whereby the appeal preferred by the petitioner has been dismissed.

2. Brief facts of the case are that the petitioner was initially appointed as

a temporary Driver(MT-11) against a regular vacancy vide order dated 16.02.1983 in the respondent no. 3/Establishment. Thereafter, on successful completion of probation, he was confirmed on 14.02.1985. Show cause notices dated 23.05.2007 and 30.06.2007 were issued by one Col. Ajay Gangwar, Commanding Officer levelling various charges of lending money against the petitioner resulting in violation of Rule 16(4)(b) of the CCS(Conduct) Rules, 1965. Reply was filed by the petitioner on 19.07.2007 to the aforesaid show cause notice and thereafter a detailed written statement denying the allegations levelled against him was also submitted by him. Thereafter, an inquiry was initiated against the petitioner on 08.10.2007 which stood completed on 27.10.2007. The inquiry report dated 29.10.2007 was furnished and the charges levelled against the petitioner stood proved on the basis of exhibits and available witnesses. Subsequently, vide memorandum dated 26.11.2007, respondent no.4 imposed punishment of 'compulsory retirement' on the petitioner. The petitioner filed a detailed representation raising various questions on the validity of the

chargsheet and technical defects on the departmental inquiry. The petitioner filed an appeal before the respondent no.2 which was also dismissed. The petitioner had approached the High Court in W.P. No. 2909/2008(S) which came to be disposed off vide order dated 15.05.2012 granting liberty to the petitioner to approach the CAT, Jabalpur. Accordingly, O.A. No. 1069/2012 was filed challenging the order of 'compulsory retirement'. CAT, Jabalpur confirming the order of 'compulsory retirement' has dismissed the OA vide order dated 06.05.2014. Hence,the present writ petition has been filed.

3. Learned counsel for the petitioner has challenged the order passed by the learned tribunal on the following grounds:

(i) The impugned order was passed on the basis of statements of witnesses who had specifically denied the charge of borrowing money, therefore, the petitioner could not have been held liable of the aforesaid charges. The chargsheet is vague in nature.

(ii) Neither the Officer who had initiated the inquiry nor the complainant i.e. Signal Man Rajni Kumar were called in the witness box. Therefore, reaching to the conclusion of lending money to Rajni Kumar and others is nothing, but a cooked up story in order to throw the petitioner out of service and to malign his image.

(iii) In the instant case, the department failed to prove the case of alleged

offence, but in order to save their skin passed the order of 'compulsory retirement' which is too harsh. Therefore, the order passed by the learned Tribunal as well as the order of 'compulsory retirement' and the appellate order deserve to be dismissed.

4. Per contra, learned counsel for the respondent vehemently opposed the prayer and submitted that petitioner had been lending money at an exorbitant

rate of interest to the civilian as well as serving personnel by obtaining their signatures on blank stamp papers. The petitioner in various cases had issued legal notices through his Advocate for recovery of non-payment of money which itself goes to prove that the petitioner was involved in the business of money lending. On the basis of complaint received against the petitioner, a departmental inquiry was ordered. As per Rules 16(4)(b) of CCS(Conduct) Rules 1965, lending money on interest basis is strictly prohibited. The legal notices issued by the counsel for the petitioner clearly spells out that the petitioner was charging interest @ 2% per month on the amount so lent. It is further submitted that proper inquiry was conducted and full opportunity of hearing was granted to the petitioner as well as his defence assistant. The petitioner has been awarded the benefit of full compensation pension and gratuity. The allegation that the penalty of 'compulsory retirement' is excessive is totally false, unacceptable and improper.

5. Learned Tribunal came to the conclusion and has passed the following order:

"3. The learned counsel for the respondents draws our attention to various documentary evidence. Apparently originally the complainants did not appear for cross-examination. The two witnesses who would also have been covered under Rules 64 did not point against the applicant. Therefore, the learned counsel for the applicant would submit that there was no proof or evidentiary value to be tacked down to the inquiry officer report but then in paragraph (n) of the enquiry report, the inquiry officer discussed the documents produced by one of the witnesses and on investigating it was found that the applicant was allegedly abusing, harassing and threatening Shri Balram Dawar continiously for which he formally complained to HO, Dagar Gaon Police Station Mhow (Exhibit S14) and Superintendent of Police, Indore(Ex. S-15)

which related to complaints for illegally obtaining promissory notes, abusing and threatening to murder through GOONDAS by the applicant which is covered by Exs. S16 and S17 and the documents covered by Exhibits S-17 to S- 19 addressed to SHO Mhow Police Station with copy to Commandant, MCTE and Superintendent of Police Indore and SHO Bargonda Police Station. Therefore, the documentary evidence is sufficient to find against the applicant as it had not been disputed and in spite of opportunity rebutted by the applicant. But had these documents been challenged by the applicant which are in question, the evidence could have been different. We, therefore hold that disciplinary enquiry conducted against the applicant was proper, and therefore the punishment awarded was also proper. We find no merits in the instant Original Application and the same is accordingly dismissed. No costs."

6. In view of the aforesaid, no interference is called for and the writ petition is liable to be dismissed with heavy cost.

7. Heard, learned counsel for both the parties and perused the record.

8. It is well established principle of law that the scope of judicial review in departmental enquiry is very limited. The High Court can interfere with the departmental proceedings only if the proceedings were conducted contrary to the well established principle of law or the enquiry report is based on no evidence or where the competence of Authority has been challenged. None of the ingredients are present in the present case.

9. The Supreme Court in the case of State of Karnataka and another Vs.

N. Gangraj reported in (2020) 3 SCC 423 has held as under:

"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.

9. In State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723, a three- Judge Bench of this Court has held that the High Court is not 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. The Court held as under : (AIR pp. 1726-27, para 7)

"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."

10. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80], again a three- Judge Bench of this Court has held that power of 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 eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under : (SCC pp. 759- 60, paras 12-13)

"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 the 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 co-extensive 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 : AIR 1964 SC 364, 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 based on no evidence at all, a writ of certiorari could be issued."

11. In High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 :

2000 SCC (L&S) 144, this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under : (SCC p. 423, para

16)

"16. The Division Bench [Shashikant S. Patil v. High Court of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1 LLN 160] of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then

adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."

12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584:(2011) 1 SCC (L&S) 721, this Court held 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 ground for interfering with the findings in departmental enquiries. The Court held as under:(SCC pp. 587-88, paras 7 &11 W.P.

"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) 6SCC 749 : 1996 SCC (L&S) 80, Unionof India v. G. Ganayutham, (1997) 7SCC 463 : 1997 SCC (L&S)

1806and Bank of India v. DegalaSuryanarayana, (1999) 5 SCC 762 :1999 SCC (L&S) 1036, High Court ofBombay v. Shashikant S. Patil, (2000) 1SCC 416 : 2000 SCC (L&S) 144].)* * *

10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."

13. In another judgment reported as Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554, this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings : (SCC p. 617, para 13)

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

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same

has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

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

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

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

14. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335, wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.

15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, 14 W.P. No.3761 of 2017 the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in State of A.P. v. S. Sree Rama Rao, AIR 1963 SC

1723 and B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80 as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law."

10. The Supreme Court in the case of State Bank of India and others Vs. Ramesh Dinkar Punde reported in (2006) 7 SCC 212 has held as under:

"6. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an Appellate Authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an Appellate Authority:

"Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority." (See Govt. of A.P. v. Mohd. Nasrullah Khan [(2006) 2 SCC 373 : 2006 SCC (L&S) 316], SCC p. 379, para 11.)

9. It is impermissible for the High Court to reappreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.

12. From the facts collected and the report submitted by the inquiry officer, which has been accepted by the disciplinary authority and the Appellate Authority, active connivance of the respondent is eloquent enough to connect the respondent with the issue of TDRs and overdrafts in favour of Bidaye.

15. In Union of India v. Sardar Bahadur [(1972) 4 SCC 618 : (1972) 2 SCR 218] it is held as under: (SCC p. 623, para 15)

A disciplinary proceeding is not a criminal trial. The standard

proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the Single Judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts. (SCR p. 219) 16. In Union of India v. Parma Nanda [(1989) 2 SCC 177 : 1989 SCC (L&S) 303 : (1989) 10 ATC 30] it is held at SCC p. 189, para 27 as under:

"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to

concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."

17. In Union Bank of India v. Vishwa Mohan [(1998) 4 SCC 310 : 1998 SCC (L&S) 1129] this Court held at SCC p. 315, para 12 as under:

"12. After hearing the rival contentions, we are of the firm view that all the four charge-sheets which were enquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority's report/findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non- furnishing of the enquiry report/findings to him."

18. In Chairman and MD, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364 : 2003SCC (L&S) 468] this Court held at SCC pp. 376- 77, para 14 as under:

"14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee

of the bank. As was observed by this Court in Disciplinary Authority-cum- Regional Manager v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194] it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court."

19. In Regional Manager, U.P. SRTC v. Hoti Lal [(2003) 3 SCC 605 :

2003 SCC (L&S) 363] it was pointed out as under: (SCC p. 614, para 10) "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 unexceptionable."

20. In Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241 : 2005 SCC (L&S) 395] this Court at SCC p. 247, para 15 held:

"15. It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry."

11 . In view of the aforesaid legal position, learned tribunal has not committed any error apparent on the face of record so as to interfere with its findings.

12. Accordingly, writ petition being bereft of merit and substance is hereby dismissed. No order as to cost.

        (S. A. DHARMADHIKARI)        (PRANAY VERMA)
                 JUDGE                   JUDGE
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