Mohan Tayade vs Professional Examination Board
2023 Latest Caselaw 9348 MP

                                                                1                                        W.P.No.12709/2017



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                           BEFORE
        HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 22nd OF JUNE, 2023
                 WRIT PETITION No. 12709 of 2017
BETWEEN:-

MOHAN TAYADE S/O SHRI DEVRAO
TAYADE, AGED ABOUT 55 YEARS,
OCCUPATION:     ASSTT.  GR.    II
PROFESSIONAL EXAMINATION BOARD
BHOPAL R/O. L-93, SANT ASHARAM
NAGAR PHASE-III LAHARPUR, BHOPAL
(MADHYA PRADESH)



                                                                                                            .....PETITIONER
(BY SHRI GAURAV TIWARI - ADVOCATE )

AND

1.        PROFESSIONAL     EXAMINATION
          BOARD THROUGH ITS DIRECTOR
          CHAYAN BHAWAN MAIN ROAD NO.1
          CHINAR PARK (EAST), BHOPAL
          (MADHYA PRADESH)



2.        THE CHAIRMAN PROFESSIONAL
          EXAMINATION BOARD CHAYAN
          BHAWAN, MAIN ROAD NO. 1
          CHINAR PARK (EAST) BHOPAL
          (MADHYA PRADESH)



                                                                                                       .....RESPONDENTS
(SHRI RAHUL DIWAKAR - ADVOCATE FOR RESPONDENTS NO.1 AND 2 )
............................................................................................................................................

           This petition coming on for hearing this day, the court passed the

following:
                                   2                    W.P.No.12709/2017


                                ORDER

This Petition under Article 226 of the Constitution of India has been filed against the order dated 06.08.2016 passed by the Director, Professional Examination Board, State of M.P., Bhopal in file No.PEB/2/ESTT/505/204/5507 by which a punishment of stoppage of two increments with cumulative effect was imposed. Against the said order, Departmental Appeal was filed, which has been dismissed by order dated 13/24.04.2017 passed by the Chairman and Appellate Authority, Professional Examination Board in File No.PEB/2/ESTT/505/2519/2017.

2. The case of the petitioner in short is that the petitioner is working on the post of Assistant Grade-II in the Professional Examination Board. A charge sheet was issued against the petitioner. Accordingly, the petitioner by application dated 29.05.2014 requested the authorities to supply the documents mentioned therein. Since those documents were not supplied, therefore, by letter dated 05.06.2014, a reminder was sent. Thereafter, by letter dated 25.06.2014, another reminder was sent but the documents were not supplied. Accordingly, the petitioner could not file his reply to the charge sheet. However, the petitioner participated in the Departmental Enquiry and in the Departmental Enquiry, the Inquiry Officer held that the petitioner was not guilty of either of the charges. However, the findings recorded by the Inquiry Officer with regard to charge No.2 were not accepted by the Disciplinary Authority and the matter was remanded back to the Inquiry Officer. Thereafter, once again the Inquiry Officer gave a finding that the charge No.2 could not be proved. However, the Disciplinary Authority disagreed with the findings recorded by the Inquiry Officer and after following procedure as laid

down in Rule 15 of the M.P. Civil Services (Classification, Control and Appeal) Rules 1966 (in short Rules 1966), imposed a punishment of stoppage of two increments with cumulative effect.

3. Being aggrieved by the order of punishment the petitioner preferred a Departmental Appeal, which too has been dismissed by the Appellate Authority by order dated 13/24.07.2017.

4. Challenging the order of punishment as well as the order passed by the Appellate Authority, it is submitted by the counsel for the petitioner that the Departmental Enquiry was vitiated because the documents sought by the petitioner by his applications dated 29.05.2014, 05.06.2014 and 25.06.2014 were not supplied. Those documents were relevant for the petitioner to establish his innocence. It is further submitted that the petitioner has been held guilty for the duties, which were never assigned to him.

5. Per contra, the counsel for the respondents has refuted the submissions made by the counsel for the petitioner. By referring to the record of Departmental Enquiry, it is submitted by the counsel for the respondents that by letter dated 03.07.2014, the documents sought by the petitioner by his first application dated 29.05.2014, were supplied to him. The copy of the said letter as well as the copy of the documents supplied to the petitioner are also part of record of the Departmental Enquiry. Thus, it is submitted that the basic contention of the petitioner that the Departmental Enquiry was vitiated on account of non-supply of necessary/relevant documents is misconceived and false even to the knowledge of the petitioner.

6. So far as the nature of duties assigned to the petitioner is concerned, it is submitted that the petitioner did not cross examine any

witness on this issue. Thus, for the first time, he cannot take this ground in this writ petition.

7. Heard the learned counsel for the parties.

8. Before adverting to the facts of the case, this Court would like to consider the limited scope of interference in the departmental matter.

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 & 10) "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 : 1996 SCC (L&S) 80, Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806 and Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC (L&S) 1036, High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 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, 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 a 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 : 2003 SCC (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. Thus, it is clear that unless and until the delinquent officer successfully pleads and proves that the procedure adopted by the respondents for conducting a Departmental Enquiry was vitiated on account of violation of principle of natural justice or statutory rules or incompetence of the authority or based on no evidence, this Court cannot interfere with the Departmental Enquiry. This Court cannot act as an Appellate Authority.

Non-supply of documents.

12. It is the case of the petitioner that by three applications dated 29.05.2014, 05.06.2014 and 25.06.2014, he had sought the supply of documents, which was not done. However, it appears that after the third application was filed by the petitioner on 25.06.2014, the Professional Examination Board, Bhopal supplied copy of the documents alongwith covering letter dated 03.07.2014. The said covering letter alongwith the photocopy of the documents are also available in the record of the Departmental Enquiry.

13. Under these circumstances, this Court is of the considered opinion

that the first ground with regard to non-supply of necessary documents is misconceived and is liable to be rejected.

Assignment of duties to the petitioner.

14. So far as the assignment of duties to the petitioner is concerned, the undisputed fact is that no such question was put by the petitioner to any of the departmental witness in this regard. It is well established principle of law that this Court cannot act as an Appellate Authority. The witnesses were in a best position to explain as to whether the petitioner had the duties or not? Having not put any question to the witnesses, this Court is of the considered opinion that now the petitioner cannot raise that ground in a writ petition filed under Article 226 of the Constitution of India where the scope of judicial review is quite narrow.

15. Under these circumstances, this Court is of the considered opinion that the petitioner has failed to make out any case warranting interference in the matter.

16. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu SHANU RAIKWAR 2023.06.23 14:29:18 +05'30'