@JUDGMENTTAG-ORDER
S.C. Sharma, J.@mdashRegard being had to the similar controversy involved in these cases, they have been heard analogously together with the consent of the parties and a common order is being passed in the matter. Facts of Writ Petition No. 3611/2007 are narrated as under. The petitioner before this Court has filed this present petition being aggrieved by the order of punishment dated 7.1.2006 passed by the respondent No. 1 as well as the order rejecting his appeal dated 7.5.2007.
2. The facts of the case reveal that the petitioner at the relevant point of time was working as a District Manager, Madhya Pradesh Civil Supply Corporation Ltd. and was posted at Badwani, a charge-sheet was issued on 29.11.2002 under rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Three charges were leveled against the petitioner. The petitioner has submitted a reply on 12.12.2002 and thereafter an order was passed on 7.4.2003 appointing the Inquiry Officer and the Presenting Officer. Five witnesses were produced on behalf of the department and the petitioner has also submitted the defence statement along with 8 documents. It has further been stated that the Inquiry Officer vide enquiry report dated 19.11.2004 has held that the charges No. 1 and 3 were found partly proved and charge No.2 was found fully proved. It has been submitted that the petitioner was served the Inquiry Report along with a show cause notice dated 13.10.2005 to which the reply was filed on 28.10.2005. Thereafter a punishment order was passed on 6.1.2006 by which a punishment of withholding one increment with cumulative effect was inflicted upon him and a recovery of Rs. 2,77,462/- has also been inflicted upon him. As it was a case of joint enquiry 75% of the aforesaid amount was to be paid by the petitioner. The petitioner has thereafter preferred an appeal and the appeal of the petitioner was dismissed by an order dated 7.5.2007 and the same has been communicated vide letter dated 4.6.2007.
3. The petitioner has raised various grounds before this Court and his contention is that no charge-sheet was issued jointly to the petitioner and without there being any order of holding a common enquiry as provided under rule 18 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, the proceedings which too took place are void ab initio. The second ground raised is in respect of additional charge-sheet dated 21.3.2003 and the contention is that no Inquiry Officer nor the Presenting Officer was appointed and, therefore, the proceedings pursuant to the charge-sheet dated 21.3.2003 are bad in law. It has also been stated that in the departmental enquiry proceedings none of the charges against the petitioner can be proved either on the basis of oral evidence or on the basis of documentary evidence and the present case is a case of perverse findings, hence the order of the punishment and the order dismissing the appeal of the petitioner deserves to be set aside.
4. Another ground has been raised that the misconduct, if any cannot constitute a misconduct in the eyes of law and the charges if any were against Mr. A.K. Parashar, Accountant and the petitioner has not been permitted to lead the evidence in the matter. Only oral statement was recorded and the defence witnesses were not permitted to be examined. The documents mentioned in the charge-sheet were also not given to the petitioner and, therefore, the procedure as prescribed under rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 was not followed.
5. Another ground has been raised that the Inquiry Report dated 19.11.2004 and 31.8.2005 do not contain the contents as required under rule 14(23) of Rules 1966. It has been further stated that the Inquiry Report is based upon the surmises, conjecture and assumption as well as presumption and, therefore, the findings arrived at by the Inquiry Officer are perverse findings. It has also been stated that the petitioner was never found to be indulged in any misconduct as leveled in the charge-sheet and the Inquiry Officer has given the perverse findings. The further contention of the petitioner is that the defence of the petitioner has not been considered at all and therefore the impugned orders deserve to be set aside. Another ground has been raised that the Inquiry Officer as well as disciplinary authority has failed to take into account the rate approved by the Collector and the transportation done in the matter was less than the rate approved by the Collector and, therefore, no loss was caused to the Corporation in transportation, which is the subject-matter of the charge-sheet. Lastly a ground has been raised that the order passed by the disciplinary authority is an unreasoned and non-speaking order. The petitioner has prayed for quashment of the order passed by the disciplinary authority as well as the appellate authority.
6. A reply has been filed in the matter and the stand of the Corporation is that the petitioner was charge-sheeted on 29.11.2002 for committing a misconduct and he did submit a reply. The respondents have further stated that another charge-sheet dated 3.4.2003 was issued and the Inquiry Officer was appointed to enquire into the charges in respect of both the charge-sheets as the additional charge-sheet was in continuance to the charges earlier framed and the Inquiry Officer, who has submitted the report in respect of other charge-sheet was authorised to submit the report in respect of the additional charges also. The authorisation letter was also issued in that behalf on 25.7.2003. The respondents have also stated that show cause notices were issued to the petitioner on 13.10.2005 and 5.1.2005, meaning thereby after conclusion of both the departmental enquiry and the petitioner did submit reply to the show cause notices and after conducting a detailed enquiry they have passed the order of punishment. The respondents have also replied to the grounds raised by the petitioner. It has been stated that the joint enquiry was conducted as per the order and the approval of Managing Director by General Manager (Administration) and Company Secretary. It has also been stated that the Inquiry Officer has been appointed in both the enquiries and no findings are perverse findings. In respect of principles of natural justice and fair play it has been stated that the defence witnesses were also permitted to be examined and it is wrong on the part of the petitioner to say that the documents mentioned in the charge-sheet were not supplied to him. The petitioner in case documents were not supplied to him as alleged, could have certainly made a request to the Inquiry Officer demanding those documents, but no such request was made. The respondents have followed the rule of 14(23) M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. The respondents have stated that the petitioner being a District Manager at the relevant point of time was responsible for all transportation and, therefore, he has been punished after finding him guilty in the departmental enquiry.
7. A rejoinder is also on record and the same reflects that the petitioner has raised a ground that he has not been granted an opportunity of personal hearing. It has also been stated that no loss was caused to the State Exchequer and it can never be said that the transportation done under the order of the petitioner was contrary to the various policies and the instructions issued from time to time. It has also been brought to the notice of this Court that the petitioner has attained the age of superannuation in the year 2012 and so far as the punishment of withholding of one increment now it has lost its significance.
8. Heard the learned counsel for the parties at length and perused the record.
9. In the present case the petitioner at the relevant point of time was working as a District Manager, Madhya Pradesh Civil Supply Corporation Ltd. and was posted at Badwani. A charge-sheet was also issued on 29.11.2002 and thereafter a supplementary charge-sheet was also issued. On 3.4.2003 an Inquiry Officer was appointed and the Inquiry Officer has submitted its report after meticulously scrutinizing the evidence on record. Based upon the report of the Inquiry Officer and after issuing a proper show cause notice dated 13.10.2005 a punishment order has been passed on 6.1.2007, withholding one increment with cumulative effect and recovery has also been ordered. The appeal of the petitioner has already been dismissed by an order dated 7.5.2007. This Court has carefully gone through the entire record and it is a case where the petitioner was served with a charge-sheet and the petitioner did submit a detailed and exhaustive reply to the charge-sheet in question. An order was passed for holding a joint enquiry with the approval of the Managing Director and the findings arrived at by the Inquiry Officer are based upon the oral as well as documentary evidence. It has been vehemently argued that certain documents were not supply to the petitioner. There is no document on record to establish that the petitioner demanded certain documents and they were not given by the Inquiry Officer. It has been stated that no Presenting Officer was appointed in the matter. The charges have been established against the petitioner based upon the oral as well as documentary evidence and the petitioner has not been able to point out the prejudice caused to him in the matter. The principles of natural justice and fair play have been followed in the matter. It has also been stated that the petitioner was not permitted to cross-examine the witnesses. There is no document on record which establishes that the petitioner was not permitted to cross-examine the witnesses, in fact the department has permitted the defence witnesses to be examined. This itself shows that the department has given a fair and reasonable opportunity to the petitioner while conducting the departmental enquiry. The opportunity of personal hearing after conclusion of the enquiry cannot be claimed as a matter of right as claimed in the present writ petition. The departmental enquiry has been held strictly in consonance with the statutory provisions of law governing the field i.e. M.P. Civil Services (Classification Control and Appeal) Rules, 1966 and the learned counsel appearing for the petitioner has not been able to point out violation of any statutory provisions of law in the matter nor violation of any statutory provision of law has been noticed by this Court from the record available. The respondents, as the petitioner has been found guilty for the alleged misconduct, has rightly punished and for the loss caused to the State Exchequer recovery has been ordered. The scope of interference by this Court has been considered by the Hon''ble Supreme Court in catena of judgments. The apex Court in the case of
"3. Against the said order of termination, she approached the High Court by filing a writ petition. By the impugned judgment, the High Court being of the opinion that the punishment of termination is grossly disproportionate to the delinquency in question, set aside the order of termination and directed reinstatement and payment of 50 per cent as a back wages with the further direction that the period of absence would be treated as extra-ordinary leave which, according to the High Court, is itself a punishment for over stay. The aforesaid conclusion of the High Court; on the face of it, is erroneous inasmuch as the order of an employer to treat a particular period of absence as extraordinary leave when the employee has no leave due, by no stretch of imagination can be held to be an order of punishment.
5. Having considered the rival submissions and on examining the impugned judgment of the High Court, we find considerable force in the submissions made by the learned counsel for the appellant. The High Court possibly would not be within its power to interfere with an order of punishment inflicted in a departmental proceeding until and unless any lacuna in the departmental proceeding is noticed or found. But having regard to the fact that the order of reinstatement has already been implemented and the respondent is continuing in service subsequent to the date of the order of the High Court, we are not inclined to interfere with that part of the order of the High Court, we are not inclined to interfere with that part of the order of the High Court even though, we find considerable force in the arguments of the counsel for the State of Rajasthan. While, therefore, the order directing reinstatement of the respondent is upheld, we cannot sustain the other part of the order directing payment of back wages to the extent of 50 per cent for the period the respondent was not in service, we, therefore, set aside that part of the order of the High Court. For the purpose of clarification, we reiterate that though the respondent would be entitled to be reinstated in service and the period of her absence would be treated as a part of continuity in the service for the purpose of retiral benefit but she would not be entitled to any pecuniary benefits for the total period of her absence till the date of her reinstatement in service. The appeal stands disposed of accordingly."
10. In the aforesaid case it has been held that interference by the High Court is not permissible until and unless any lacuna is established in the departmental enquiry.
11. The apex Court in the case of
"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 re-appreciating the evidence as an appellate authority. {See :
9. It is impermissible for the High Court to re-appreciate 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.
13. We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the finding of the Inquiry Officer, the disciplinary authority and the appellate authority by acting as a Court of appeal and re-appreciating the evidence."
In the aforesaid case the apex Court has held that re-appreciation of evidence is impermissible and the High Court has erred in acting as a Court of appeal and re-appreciating the evidence. In light of the aforesaid judgment, the question of re-appreciating the evidence in question does not arise especially when the principles of natural justice and fair play have been followed by the respondents.
12. The apex Court in the case of
"15. At the enquiry, all the charges levelled against the employees were established. In the light of the said finding, the management imposed punishment of (i) stoppage of increment of 1 to 4 years with cumulative effect; and (ii) non-payment of salary during period of suspension. In our considered opinion, the action could not be said to be arbitrary, illegal, unreasonable or otherwise objectionable. When the Union challenged the action and reference was made by the ''appropriate Government'' to the Labour Court, Coimbatore, the Labour Court considered all questions in their proper perspective. After affording opportunity of hearing to both the parties, the Labour Court negatived the contention of the Union that the proceedings were not in consonance with principles of natural justice and the inquiry was, therefore, vitiated. It held that the inquiry was in accordance with law. It also recorded a finding that the allegations levelled against the workmen were proved and in view of the charges levelled and proved against the workmen, the punishment imposed on them could not be said to be excessive, harsh or disproportionate. It accordingly disposed of the reference against the workmen. In our considered opinion, the award passed by the Labour Court was perfectly just, legal and proper and required ''no interference''. The High Court, in exercise of power of judicial review under Article 226/227 of the Constitution, therefore, should not have interfered with the well considered award passed by the Labour Court.
18. ''Proportionality'' is a principle where the Court is concerned with the process, method of manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise # the elaboration of a rule of permissible priorities.
19. de Smith states that ''proportionality'' involves ''balancing test'' and ''necessity test''. Whereas the former (''balancing test'') permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest, imbalance of relevant considerations, the latter (''necessity test'') requires infringement of human rights to the least restrictive alternative. [''Judicial Review of Administration Action''; (1995); pp. 601-605; para 13.085; see also Wade and Forsyth; ''Administrative Law''; (2005); p.366].
30. In our opinion, therefore, the High Court was not right in exercising power of judicial review under Article 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the management and/or of the Labour Court. To us, the learned counsel for the appellant Bank is also right in submitting that apart from charges 1 and 2, charges 3 and 4 were ''extremely serious'' in nature and could not have been underestimated or underrated by the High Court."
In the aforesaid case, it has been held that until and unless the findings are based upon no evidence or are perverse, the High Court cannot interfere with such findings, which are based upon the evidence.
13. The apex Court in the case of
"16. Indisputably, respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of section 58 of the Indian Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the Enquiry Officer, he did not submit the explanation that his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.
17. In
"214. In terms of the aforementioned provision, things admitted need not be proved. In view of the admission of respondent 1 alone, the issue as regards allotment of 6475 shares should have been answered in favour of the appellants. The company petitioner at a much later stage could not be permitted to take a stand which was contrary to or inconsistent with the original pleadings nor could she be permitted to resile from her admissions contained therein."
18. It was observed that judicial admissions can be made the foundation of the rights of the parties.
19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings.
20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments.{See
21. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {See
22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order."
In the aforesaid case, it has been held that well reasoned order of departmental authority cannot be interfered with on the basis of sympathy or sentiments and there is a limited scope of interference that too when the principles of natural justice and fair play has been violated or there is violation of any statutory provisions of law.
14. The apex Court in the case of
"21. The case at hand is an exceptional one, respondent was a responsible officer. He was holding a position of trust and confidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, of course, to the exception that charges No. 11 and 15 stricto sensu were not the subject-matter of criminal proceedings, as integrity and diligence, however, were not in question. Before us also it has not been contended that he had made any personal gain.
22. The High Court in its judgment categorically opined that he merely had committed some inadvertent mistakes. He did not have any intention to commit any misconduct. The purported misconduct on his part was neither willful nor there existed any fraudulent intention on his part to falsify the account. The High Court opined that the prosecution had failed to bring home the guilt of the accused beyond all reasonable doubts for the offences punishable under the provisions under the Indian Penal Code.
The judgment of the High Court states a definite view. It opined that the finding of the learned trial Judge holding him guilty under section 477A of the Indian Penal Code and the provisions of the Prevention of Corruption Act was perverse. The circumstances in favour of the accused, the High Court inferred, had wrongly been attributed against him by the trial Judge.
23. A learned Single Judge of the High Court in his judgment dated 7.2.2005 only upon taking into consideration the observations made by the High Court in the said criminal appeal but also the other circumstances, brought on record, directed fresh consideration and disposal of the matter in accordance with the law upon giving an opportunity of hearing to the respondent. The Division Bench of the High Court, in the first round of litigation, noticed that the entire record had been perused by the learned Single Judge. It was found that the original authority had imposed a punishment of only stoppage of one increment with cumulative effect which was modified by the appellate authority into one of withholding of increment without cumulative effect and held that failure of the disciplinary and appellate authorities to take into consideration modified punishment has caused serious prejudice to the respondent.
24. It was furthermore noticed that in purported compliance of the directions issued by the learned Single Judge, the penalty of dismissal from service was re-imposed on the respondent.
25. The Division Bench, however, disagreed with the conclusion of imposition of stoppage of one increment. Even then it observed that in the facts and circumstances of this case the issue relating to dismissal of respondent needs reconsideration. It was directed:
"While doing so, the concerned authority shall keep in view the following factors:
(i) Both the disciplinary authority and this Court in Criminal Appeal No. 12 of 1996 found the respondent not guilty of charges of misappropriation, deriving the personal benefit for himself and causing loss to the bank.
(ii) The effect of the judgment of this Court in Criminal Appeal No. 12 of 1996 in the light of the decision of the Supreme Court in M. Paul Anthony''s case (supra), and G.M. Tank''s case (supra).
(iii) Modified punishment of withholding of increment without cumulative effect imposed on the respondent is a minor penalty unlike the punishment of withholding of minor penalty unlike the punishment of withholding of increment with cumulative effect, which was held to be a major penalty by the Supreme Court in Kulwlant Singh Gill''s case (supra).
(iv) While considering the proportionality of the punishment, distinction lies between the procedural irregularities constituting misconduct from the acts of misappropriation of finances, causing loss to the institution, etc."
26. We do not see any reason keeping in view the peculiar facts and circumstances of the case to disagree with the said findings, although we would like to reiterate the principles of law to which we have referred to hereinbefore.
32. As the respondent has merely been found to be guilty of commission of procedural irregularity, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India, particularly in view of the fact that the respondent has now reached his age of superannuation, and the appropriate authority of the appellant would be entitled to impose any suitable penalty upon him."
The apex Court in the aforesaid case, has held that jurisdiction of Superior Court is quite limited in the matter of departmental enquiry.
15. In the present case, the respondents have passed the order of punishment based upon the enquiry report, which is again based upon the ample evidence available against the petitioner and, therefore, in light of the aforesaid judgment, the question of interference in the fact and circumstances of the case with the punishment and the order passed by the appellate authority does not arise.
16. The apex Court in the case of
"18. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the 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 consideration extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the 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. [See : Shashikant S. Patil and another (supra)].
19. Explaining the scope of jurisdiction under Article 226 of the Constitution, in State of Andhra Pradesh v. S. Sree Rama Rao, this Court made the following observations:
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.
20. Elaborating on the scope of judicial review of an assessment of the conduct of a judicial officer by a Committee, approved by the Full Court, in Syed T.A. Naqshbandi and others v. State of Jammu and Kashmir and others, this Court noted as follows:
....As has often been reiterated by this Court, judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Criticals or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate Court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions of administration of justice with which we are concerned in this case, by going into the correctness as such of ACRs or the assessment made by the Committee and approval accorded by the Full Court of the High Court.
21. In Rajendra Singh Verma (dead) through LRs and others v. Lieutenant Governor (NCT of Delhi) and others, reiterating the principle laid down in Shashikant S. Patil and another (supra), this Court observed as follows:
In case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court who go into the question and it is possible that in all cases evidence would not be forthcoming about integrity doubtful of a judicial officer. It was further observed that;
If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before Courts. When such a constitutional function is exercised on the administrative side of the High Court, any (pic) judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ Court under Article 226 or this Court under Article 32 would not interfere with the order.
22. In the present case, the recommendation of the Standing Committee to dismiss the first respondent from service was based on pursuant to the departmental enquiry; his reply to the show cause notice; his ACR and other materials placed before it. The recommendation of the Standing Committee was approved and ratified by the Full Court.
23. There is nothing on record to even remotely suggest that the evaluation made, firstly by the Standing Committee and then by the Full Court, was so arbitrary, capricious or so irrational so as to shock the conscience of the Division Bench to justify its interference with the unanimous opinion of the Full Court. As regards the observation of the Division Bench on the reputation of the first respondent based on his ACRs, it would suffice to note that apart from the fact that an ACR does not necessarily project the overall profile of a judicial officer, the entire personal file of the respondent was before the Full Court when a conscious unanimous decision was taken to award the punishment of his dismissal from service. It is also well settled that in cases of such assessment, evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and no single factor should be allowed to be blown out of proportion either to decry or deify issues to be resolved or claims sought to be considered or asserted. In the very nature of such things, it would be difficult, rather almost impossible to subject such an exercise undertaken by the Full Court, to judicial review, save and except in an extra-ordinary case when the Court is convinced that some exceptional thing which ought not to have taken place has really happened and not merely because there could be another possible view or there is some grievance with the exercise undertaken by the Committee/Full Court. [See: Syed T.A. Naqshbandi (supra)].
24. Having regard to the material on record, it cannot be said that the evaluation of the conduct of the first respondent by the Standing Committee and the Full Court was so arbitrary, capricious or irrational that it warranted interference by the Division Bench. Thus, the inevitable conclusion is that the Division Bench clearly exceeded its jurisdiction by interfering with the decision of the Full Court."
The apex Court in the aforesaid case has held that the Court may interfere, judicial review is permissible only when there is a violation of natural justice/statutory regulations prescribing the mode of departmental enquiry or where the decision of the authorities is vitiated by considerations extraneous to evidence on merits of the case. In the present case the penalty order has been passed based upon an inquiry report in which the petitioner has been held guilty and the respondent have followed the statutory provisions as well as principles of natural justice and fair play, hence, the question of interference keeping in view the judgment delivered by the apex Court in the aforesaid case does not arise.
17. The apex Court in the case of
"13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where the delinquent admitted that charges, no scope is left to differ with the conclusions arrived at by the Inquiry Officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.
14. The Single Judge of the High Court in paragraphs 43 and 44 of the judgment observed thus:
"43. This Court is of the view that the so-called order dated 29.11.2000 is a mere communication without actually serving the original order of the disciplinary authority. Merely transmitting the decision of the disciplinary authority was not sufficient since this was a matter involving the punishment of removal from service entailing civil consequences.
44. We are dealing with a case of removal from service for an alleged absence of 6 (six) months. This Court is of the 10 view that the respondents were bound to adhere to a fair and transparent procedure by firstly serving the actual order of the disciplinary authority upon the petitioner and then, by giving reasons as to why they chose not to agree with what the petitioner wanted to say qua his absence when, after admitting the absence, he gave reasons as to why he had remained absent. They were also obliged to strictly obey with the orders of this Court. In that view of the matter, the argument of Mr. Aloke Banerjee to the effect that the respondent were not required to give reasons, are not acceptable to this Court. Consequently the judgments cited by him namely
In what we have already discussed, we find it difficult to accept the view of the Single Judge. The Division Bench like the Single Bench fell into grave error in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, misconduct of the respondent No. 1 was clearly established. We are, therefore, unable to persuade ourselves to concur with the view of the High Court."
18. The apex Court in the case of
"11. True it is that the appellate authority while setting aside the order of removal and directing for de novo enquiry earlier had found the same bad in law on account of various grounds including the ground of non-examination of the victim Harish Chandra Ram. Thereafter in the de novo enquiry, the Enquiry Officer had taken pains to call Harish Chandra Ram from his native place but he did not appear during the enquiry. It is not the case of the writ petitioner that the disciplinary authority purposely withheld Harish Chandra Ram from appearing in the departmental enquiry. Harish Chandra Ram had given a written complaint, a copy of which was produced during the course of enquiry which supports the charge levelled against the writ petitioner.
12. Further writ petition in his defence had accepted the detention of Harish Chandra Ram and his release. However, he has denied the allegation of snatching of money from him but from his own defence, it is evident that he had accepted the incident except of course that he had not snatched the money.
13. On the basis of the materials on record, the Enquiry Officer held the writ petition guilty with which the disciplinary authority as also the appellate authority agree. It is well settled that High Court while exercising the power of judicial review from the order of the disciplinary authority do not act as a Court of appeal and appraise evidence. It interferes with the finding of Enquiry Officer only when the finding is found to be perverse. We are of the opinion that the Division Bench of the High Court erred in setting aside the order of learned Single Judge and quashing the order of compulsory retirement. The finding recorded by the Enquiry Officer is based on the materials on record and on proper appreciation of evidence which cannot be said to be perverse calling for interference by the High Court in exercise of its power of judicial review."
The apex Court in the aforesaid case held that the High Court while exercising the power of judicial review in respect of order of disciplinary authority does not act as a Court of appeal and appraise evidence. It can interfere with the finding of Inquiry Officer only when such findings are perverse.
19. In the present case as discussed earlier, the findings recorded by the Inquiry Officer are not at all perverse findings. The petitioner has been inflicted with a punishment of stoppage of one increment with cumulative effect and a recovery has been also ordered against him. It was a case of joint enquiry, the petitioner as well as other person has already been found guilty for the misconduct and a recovery has been ordered against both the persons. In absence of violation of any statutory provision of law and also keeping in view the scope of interference by this Court, as per the law laid down by the apex Court in the aforesaid cases, this Court does not find any reason to interfere with the departmental enquiry with, the order of punishment as well as order passed by the appellate authority. Ex-consequentia, the writ petition fails and is accordingly dismissed. The connected writ petition i.e. Writ Petition No. 4004/2007 is also dismissed.
