Central Administrative Tribunal - Madras
P Praveen Kumar vs M/O Finance on 17 March, 2023
ro ao CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH x DATED THIS THE (7 DAY OF MARCH TWO THOUSAND TWENTY THREEE PRESENT: THE HON'BLE SHRI. T. JACOB, MEMBER (A) THE HON'BLE SMT LATA BASWARAJ PATNE, MEMBER (J) OA/310/02016/2017 Praveen Kumar Appraiser, Customs Commissionerate VII Air Cargo Complex Chennai-600 027 .. Applicant By Advocate Mr. Vijay Narayan Sr. Counsel for M/s N. Viswanathan Versus 1) Union of India represented by The Chief Commissioner of Customs, Custom House, Rajaji Salai Chennai-600 001, 2) The Commissioner of Customs (Disciplinary Authority) Customs Commissionerate VIII Custom House, Rajaji Salai Chennai-600 001. ... Respondents. By Advocate M/s K. Mohanamurali ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member (A)) This OA has been filed by the applicant under Sec.19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"The applicant prays for setting aside the impugned order passed by the First Respondent with direction to restore his original seniority and to forthwith promote him to the higher cadre with effect from the date of promotion of his immediate junior with all consequential service and monetary benefits and to pass such other order or orders as deemed fit and proper in the facts and circumstances of the case and thus render justice".
2. The brief facts of the case as submitted by the applicant are as follows:-
The applicant was working as Appraiser-Export at the Air Cargo Complex at Chennai during Mary 2005 to September 2005 attending to export cargo examination. The Air Intelligence Unit registered a case against a number of exporters for attempted export of inferior variety of ready-made garments along with quality garments with intention to earn undue draw back in terms of Section 75 of Customs Act, consequent of which they filed a report dated 23.08.2017, On the Cammissioner of Customs sending a report to the Additional Director General of Vigilance for taking action against all the officers working in Air Cargo at the material time, and based on the recommendations of the Vigilance Director, charge memo came to be issued to all the concerned including the applicant herein on 29.11.2006. The matter was also referred to the CBI for 3 investigation and on the conclusion of the investigation the CBI filed its report dated 10.10.2008 recommending prosecution against some of the Officers and disciplinary action for major punishment against some other officers while categorically reporting that no action is required to be taken against the applicant herein and a few others. The said report was accepted by the department and accordingly prosecution proceedings were initiated against the officers named in the report of the CBI. However, no attempt was made to drop the disciplinary proceedings initiated against the applicant based on the CBI report, which is contrary to the instructions contained in the Vigilant Manual. As the Charge Memo issue to him made 'very serious allegations as if he has deliberately not exercised necessary checks and colluded with the fraudulent exporters causing loss of revenue to the department. The charge further relying upon the circular of the Board dated 23.01.2002 alleged that he had acted negligently with a view to collude with the fraudulent exporters to enable them to claim undue draw back. According to the applicant, the above allegation on the face of the CBI report was certainly non-maintainable against him. Even though the Charge Memo was issued as early as in 2006 and the report of the CBI received in 2008, yet the enquiry proceedings commenced and concluded after 7 long years after the issue of the Charge Memo. The enquiry report dated 31.05.2013 also held that none of the charges are proved, The Disciplinary Authority also after going through the inquiry report sent her recommendation holding that major penalty proceedings are not warranted against the applicant. However, on the intervention of the CVO, the CVC Issued a second stage advise approving the recommendation of the CVO for major penalty proceedings which in fact considered the case of the applicant along with many others. The Disciplinary Authority accordingly passed order dated 22.12.2016 dropping the charges of deliberate intentional and collusion of the applicant with the fraudulent exports and the entire charges against Art. I, but however confirmed the major penalty on him for not carrying out his duties diligently by relying upon certain extraneous reasons not mentioned in the Charge Memo and by mis- interpreting the Board Circular referred to above. The appeal of the applicant against the said order before the Chief Commissioner only resulted in minor modification of the order, but otherwise confirming the order of the Disciplinary Authority resulting gross miscarriage of justice and loss of multiple promotions to the applicant. Hence this application.
3. The applicant has sought the aforesaid relief inter alia, on the following grounds:-
a). The Order passed by the 1st respondent herein is unjust, unfair, unreasonable, violative of Principles of natural Justice, contrary to the provisions and ex-facie illegal against the admitted facts of the case and therefore not tenable in law.
b). The ist respondent herein in the first place ought not to have ignored the report dated 10/10/2008 of the CBI, which in unequivocal terms recommended that no action be taken against the applicant after thorough investigation of the matter, in strict adherence to Para 1.8 of 5 Chapter III of the Vigilance Manual, whereas he had exhibited his bias and total nonapplication of mind and recorded the finding that the CBI had not given any rationale for such recommendation, by failing to take note of the fact that when the same report of the CBI was acted upon by the department by initiating prosecution and Departmental proceeding against the other officers named in the said report, it defies all logic and reasoning as to why the report pertaining to this applicant alone should be rejected as not giving any rationale for such report, which makes his order totally bad and unacceptable
c). The 1st respondent committed: gross error and injustice in not considering the specific ground taken by the applicant that long delay of 11 years caused in concluding the departmental proceedings initiated against him, contrary to the circulars of the Government stipulating timely completion of departmental proceeding which totally vitiates the proceedings which also warrant his order to be set aside in limini.
d). The ist respondent further failed to see that all the three charges framed against the applicant herein revolved around the fact that the applicant did not detect the fraudulent exporters from claiming the ineligible drawback by not ensuring the compliance with the instruction, circulars and notification issued by the Commissionerate as well as the CBEC, and therefore when the charge under Article I had been dropped, there is no scope for maintaining the other two charges, the failure of which had resulted in gross miscarriage of justice.
e). The 1st respondent also failed to see that the EDI system administered by the Department had inherent defects which fact had also been admitted and reported by the Directorate of Vigilance who conducted investigation in this matter as per their report dated 08-09-2006 sent to the Second respondent herein, which omission on his part resulted in his confirming the order of the Disciplinary Authority whereas he ought to have exonerated the applicant of the charges levelled against him on this sole ground alone.
f). The 1st respondent further ought to have seen that the alert prompted on the screen, as reproduced in the imputation in support of the charge under Article II having not disclosed that the exporter had filed the other bills to the same buyer and only indicated that the export is being made to the same "port" of destination when considered in the light of the instructions contained in Para 3.2 of the circular 6/2002 do not at all attract the instructions contained in the said circular and only show that the system administered did not confirm to the instructions/circulars issued warranting the same to be necessarily treated as a system error leaving no roorn for maintaining the charges against the applicant herein.
g). The ist respondent herein further ought to have appreciated that Para 3.2 of circular 6/2002 having only prescribed 100% examination of the shipping bills, and not all the packages covered by the shipping bills and had not prescribed the scale of examination of the goods covered by such shipping bills, the action of the applicant in adhering to the examination as per the guidelines and norms in force based on the 7 destination of the goods shoutd not have found fault with his conduct and consequently ought to have dropped the charges against him.
h). The ist respondent herein further failed to see the contradiction in the Order of the 2nd respondent which held applicant as having not examined the subsequent bills after the alert has been shown in the system whereas the contention in the charge was that the applicant did not examine the shipping bills in respect of which the alert has been shown which clear self-contradiction in the order makes the whole order of the disciplinary authority and 2nd respondent void ab-initio.
i). The ist respondent ought to have taken specific note of the contradiction in the finding recorded the 2nd respondent and Disciplinary Authority, who without any basis or allegation or documentary proof recorded the finding that none of the 104 consignment were examined by him, whereas the allegation made in support of the charge ts that he had not ensured opening of additional package to verify and ensure the correctness of the declaration made thereby clearly showing that the DA had gone beyond the scope of the Charge Memo to hold him guilty of the two charges which is not permissible under law.
j) The ist respondent herein also failed to take note of fact that the Disciplinary Authority had traversed beyond the scope of the Charge Memo to assume that all the goods exported were only junk and unusable substandard material, which is contrary to the report of the AIU relied in support of the charge.8
k) The ist respondent herein also failed to see that the Disciplinary Authority having accepted the finding of the Inquiry Officer to the effect that though there was no doubt that export fraud had taken place, but when it comes to the charge against the charged office, they do not throw any light on the omissions and commissions or failure leading t@ the scam, to exonerate the applicant from the charges levelled against Article I, he ought not to have taken a different position so far as the other two charges are concerned whereas he ought to have exonerated him on the same proposition the failure of which has resulted in his passing the totally improper and unsustainable order, !) The ist respondent herein further ought to have taken proper note of the fact that the Disciplinary Authority in para 22 of the order dated 22.12.2016 having conceded the issue in favour of the applicant herein was In gross error in sustaining the penalty by holding the charges against Article Il and ITI stands proved against him.
m) The ist respondent herein further ought to have taken note of the fact that non- supply of the copies of Shipping Bills, invoices, check list, etc. as also the recommendations of the Chief Vigilance Officer disagreeing with the views of the Disciplinary Authority resulted in gross violation of the principles of natural Justice which required the setting aside of the charges framed against him.
n) The 2nd respondent having admitted that the disagreement note of the Chief Vigilance Officer has not been relied upon by the Disciplinary Authority and therefore question of furnishing a copy of the same does not 9 arise, ought to have in such factual position, only proceeded with the same views expressed by him in his letter dated 24-03-2015 addressed to the Chief Vigilance Officer recommending the case of the applicant for a minor penaity rather than taking a contrary stand at a later point in time by imposing major penalty without any fresh material evidence before him except for a non-binding advice from CVC which evidences total lack of application of mind.
0). The findings recorded in the orders of the ist respondent (impugned order) and the 2"4 respondent (DA) being totally conirary to the merit findings recorded by the Disciplinary authority in the case of Mrs. Jayalakshmi Shankar then Examiner and now Appraiser of Customs (Retd) namely the Ministry of Finance, a Superior authority to the respondents herein in order no, 26/2018 dated 31.10.2018 involving identical facts and issues warrant the setting aside of the impugned order passed by the ist respondent herein holding that his order is not maintainable both on fact and under law. There is therefore violation of Article 14 and 16 of the Constitution.
p). The further fact that the CBI vide its report dated 10.10.2008 having recommended the prosecution against the said Mrs. Jayalakshmi Shankar whereas no action including departmental action not being recommended against the applicant herein putting him in a better position than her, require the above order of the DA (Ministry of Finance) in the case of Mrs. Jayalakshmi Shankar to be applied to the case of the applicant and his application allowed by setting aside the order of the 1** respondent herein.
106. Learned Senior counsel for the applicant has relied on the following decisions in support of his contentions.
i). The decisions of the CAT Madras Bench dated 16.07.2009 in OA Nos. 341, 342, 343, 715, 719, 720, 721 and 722 of 2008 in the case of Ruban Loganathan and others vs Union of India.
ii). The decisions of the Hon' ble High Court of Madras dated 10.11.2010 in WP. No 22205 of 2009 25632 to 25638 of 2009 in the case of Union of India vs Ruban Loganathan and Others.
6. The Respondents have submitted a detailed reply: It is submitted that the officers of the Air Cargo intelligence unit (ACIU), Air Customs Commissionerate, Chennai on 08.09.2005 had intercepted 10 Shipping Bills filed by 2 fictitious exporters on 08.09.2005 consisting of 127 packages declared to contain leather shoe uppers for adults, brought to the Air Cargo Compiex, consigned to the United Kingdom. These two consignments were covered by 10 Shipping Bills, five each filed by M/s. R.G.Impex, Mumbai and M/s.Poppy Leather & Apparel, Coimbatore. The total value declared in respect of these two consignments was RS.1,81,44,064/ with a drawback Claim of Rs.14,15,235/ -. The examination of the packages revealed that except 16 packages, the remaining 111 packages contained torn/ soiled/used shoe uppers, the value of which was very low. The exporters in this case, had resorted to mis-declaration of the description of the goods, quantity and had also inflated the value with a view to claim a huge drawback amount. It was observed by the leather expert that the goods were finished and semi finished shoes uppers of inferior quality and the leather expert valued the said goods at Rs.200/-per pair. The mis-declared 11 goods were seized on 08.09.2005 by the officers of the ACIU, ACC, Chennai, for contravention of the provisions of the Customs Act, 1962.
7, Further investigation caused in the matter revealed that apart from these firms, several fraudulent firms were floated by one Shri.K.Gunasekar, S/o. Shri.Krishnan Kutty Nair, No.138, Habibullah Road, T.Nagar, Chennai- 17 in the name of his friends /Associates in Chennai, Mumbai and Coimbatore and the said exporters resorted to this fraud by floating 46 fictitious firms to export goods viz., torn /soiled shoe uppers by mis- declaring them as shoe uppers showing inflated value with a view to claim higher drawback amounts to the tune of Rs. 16.58 Crores in 1798 Shipping Bills from July 2003 to September 2005. The said Shri.K.Gunasekaran, Proprietor of M/s Appu Apparels Exports, Chennai, was the mastermind behind the scam. These exports were made mainly to only one buyer viz, M/s Field Line Trading L.L.C, Dubai, floated by Shri.K.Gunasekaran with him being the main and only Indian partner of the said firm.
8. Out of 1798 Shipping Bills filed by 46 exporters, from July 2003 to September 2005, Shri. P.Praveen Kumar, the charged officer had attended to 104 shipping bills from May 2005 to September 2005 filed by the said 8 fraudulent exporters involving ineligible drawback to the order of Rs.70,61,618/-. (out of Rs. 16.57 crores). The CVC -vide O.M. No.006/CEX/102/30575 dated 25.07.2006 had advised initiation of Major Penalty Proceedings against Shri. P.Praveen Kumar, who had examined the aforesaid Shipping Bills leading to availment of ineligible drawback by the 12 fraudulent exporters, which were communicated by the Directorate General of Vigilance, New Delhi in F.No.V-528/4/ 2005 dated 03.08.2006.
9. The charged officer vide his reply to the Charge Memorandum, denied the charges made had against him. Since the officer denied the charges, Shri SAANANTHA KRISHNAN, Joint Commissioner of Customs, Chennai was appointed as the Inquiry Officer and Shri.K.B.K. RAJU, Asst.Commissioner, Chennai was appointed as the Presenting officer vide order dated 13.06.2007 by the Disciplinary Authority. The Inquiry Officer after completion of his inquiry, submitted the Inquiry report on 04.11.2013. The Inquiry Officer after scrutiny of the relied upon documents, Presenting Officer's brief and Defence Brief submitted by the Charged Officer had concluded in his report that all the charges levelled against Shri. P.Praveen Kumar, Appraiser was 'not proved". The Disciplinary Authority, after carefully considering the findings of the Inquiry officer and relevant materiais available on record, has issued a disagreement memorandum dated 22.12.2014 on the Inquiry Report under Rule 15(2) of CCS (CCA) Rules, 1965, wherein the DA has disagreed with the findings of the Inquiry Officer on the second and third article of charge and subsequently passed an Order imposing Major Penalty on 27.12.2016. Aggrieved by the Order, Shri. P.Praveen Kumar, Appraiser had filed an appeal on 23.02.2017. The Appellate Authority vide Order-in-Appeal dated 12.07.2017 imposed major penalty only but reduced the period of penalty.
10.. It is submitted that the DA had given due attention to the IO report, and had agreed with the findings of the 10 with respect to the first article 13 of charge and held the charge as "not proved" regarding the seconds article of charge, the investigation revealed that all the exporters had exported only sub-standard materials and the officer had attended to numerous shipping bills of split up consignments and on all occasions, he could not detect at least one case of mis-declaration of description of goods. The applicant did not instruct his subordinate examiner to carry out complete examination of the consignments deliberately despite the alert given by EDI system in the case of split -up bills, The applicant, committed the grave misconduct by ignoring the alert' appearing in the system e.g. ("There are (numbers) more SBs registered on (date) for same port by same exporter, please acknowledge (0.K)"]. This clearly implies that the applicant had ignored the "alert" given by the system and had not randomly selected packages of the subsequent consignments for examination in terms of the board's circular No.6/2002 Cus. Dated 23.01.2002 and thereby committed gross misconduct. If the applicant had adhered to the board's circular No.6/2002 cus. Dated 23.01.2002, he could have acted upon the "alert " given by the EDI system and could have exercised detailed examination norms and instructed his examiner to do the same and thereby could have unearthed the fraudulent export of the substandard shoes uppers, Thus, it is conspicuous that the applicant had failed to supervise his examiner to adhere to the said board's circular and also the third charge is axiomatic to the second charge leveled against the applicant and his examiner. In view of the above. It is clearly discernible that the second and third charge stands proved and is differentiated from 14 the ist charge, to the extent of the negligence of the applicant ignoring the "alert" issued by the EDI system.
ii. As regards the dropping the identical charges framed by the Commissioner of Customs (Exports) against one Smt. Jayalakshmi Shankar the then examiner of Customs now Appraiser of Customs (Retd), the Applicant herein was officiating as Appraiser whereas the said Smt. Jayalakshmi Shankar was officiating as Examiner. Further the charges framed against the Applicant and Smt. Jayalakshmi Shankar are totally different under Article I, If & UI and Article I & II respectively and the decision taken in respect of these charges are also independent in toto. The Applicant was charged under Article III that the Applicant has failed in his supervisory duties in as much as to instruct the Examiners in the Examination of export goods as selected by the computer system and failed to instruct his subordinates to carry out examination in the case of split up Shipping Bills by ignoring alert instruction given by the computer system in contravention of the Board's Circular No, 6/2002. Hence the reliance of the applicant ona totally different charges and order conceming Jayalakshmi Shankar is erroneous, which is not comparable to the charges against the applicant.
12. It is submitted that the. applicant has not availed all the remedies available to him. The applicant can file Revision application before the Hon'ble President of India and the same has been clearly mentioned in the Order-in-Appeal passed by the Appellate Authority. Respondents pray for dismissal of the OA.
158. Learned counsel for the respondents have relied on the following decisions in support of their contentions.
i) Decision of the Hon'ble Supreme Court in CA No.13448/2015 Dated 17.11.2015 in the case of Pawan Kumar Agarwala.
it) Decision of the Hon'ble Supreme Court in CA No.958/2010 in the case of Prem Nath Bali.
iii) Decision of the Hon'ble Supreme Court in CA No.3668/2012 in the case of A.K.Saxena.
15. Heard the learned counsel for the respective parties and perused the pleadings and documents on record.
16. The applicant was proceeded against for the misconduct in departmental proceeding. The applicant was served with a charge sheet.
The applicant faced departmental proceedings on following charge.
ARTICLE I That Shri.P.Praveen Kumar, the charged officer while working as Shed Appraiser in Air Cargo Complex Chennai during the period from May 2005 to September 2005 failed to verify the mis-declaration of destination, mis- description of goods exported, misdeclaration of quantity and value of exports made by eight un-scrupulous exporters, namely M/s. Ariel worldwide exports, Chennai; Bramha Impex, Chennai-28; Flexible innovations, Chennai-8; Harambee imports & exports,Chennai-17; Jacquilin 16 syndicate, Chennai; M.P.L.Imports & Exports, Chennai-17; Money Plus Imports & Exports, Chennai-8 and P.R.International, Chennai-8, through 104 shipping bills detailed as per Annexure -III-c. He failed in his duties and deliberately not exercised necessary checks on the said shipping bills thereby facilitated the fraudutent exporters to enjoy ineligible drawback amounting to Rs.70,61,618/-. By the above said acts, Shri P. Praveen Kumar failed to maintain absolute integrity, devotion to duty and acted ina manner unbecoming of a Government Servant.
ARTICLE I That the said Shri .P.Praveen Kumar, the charged officer while discharging his duties as Shed Appraiser at Air Cargo Complex, Chennai during the relevant period failed to scrutinize and detect the split up consignments by the said eight fraudulent exporters and thereby colluded with them in avoiding higher percentage of examination of the export cargo despite the system alert. He failed to follow the departmental instructions and procedures as detailed in the "Handbook for Customs Officers" Chapter 5 (pages 39-42) published by the Directorate General of System, New Delhi. By this acts of omission and commission, Shri P.Praveen Kumar committed the misconduct of gross negligence and thereby he failed to maintain absolute integrity, to maintain devotion to duty and acted in a manner unbecoming of a Government servant.
17ARTICLE-II That the said Shri.P.Praveen Kumar, the charged officer while working as Shed Appraiser at Air Cargo Complex, Chennai during the period from May 2005 to September 2005 failed in his supervisory duties in as much he did not instruct the Examiners in the examination of export goods, as selected by the computer system and failed to instruct his said subordinates to carryout examination in the case of. split up shipping bills by ignoring alert instructions given by the. computer system in contravention of the Para 2.3 of Board's Circular No.06/02 dated 23.01.2002. By doing so' Shri P. Praveen Kumar had acted negligently with a view to collude with the fraudulent exporters to claim un-intended drawback amount, causing huge loss to the Government and thereby he failed to maintain absolute integrity, to maintain devotion to duty and acted in a manner unbecoming of a Government servant.
Shri P.Praveen 'Kumar, Appraiser, by the above said acts of commission and omission failed to maintain absolute integrity and devotion to duty as he failecl to follow the departmental instructions and procedures and acted negligently, failed to supervise the subordinates effectively and thereby he committed the misconduct of unbecoming Government Servant and thus contravened the provisions of Rules 3 (1) (i) (ii), (ii and 3 (2) (i) of the Central Civil Services (Conduct) Rules 1964.
17, A statement of imputations of Misconduct or Misbehavior on which the Articles of charge. were based, together a list of Documents by which, 18 and a List of Witnesses by whom, the charges were proposed to be sustained, were. also forwarded to him along with the above said Memorandum dated 29.11.2006.
18. The charged officer, denied the charges made against him. Since the officer denied the charges, Joint Commissioner of Customs, Chennai was appointed as the Inquiry Officer and Asst.Commissioner, Chennai was appointed as the Presenting officer vide order dated 13.06.2007 by the Disciplinary Authority, The Inquiry Officer after completion of his inquiry, submitted the Inquiry Report on 04.11.2013. The Inquiry Officer after scrutiny of the relied upon documents, Presenting Officer's brief and Defence Brief submitted by the Charged Officer had concluded in his report that ail the charges levelled against Shri. P.Praveen Kumar, Appraiser was 'not proved", The Disciplinary Authority, after carefully considering the findings of the Inquiry officer and relevant materials available on record, has issued a disagreement memorandum dated 22.12.2014 on the Inquiry Report under Rule 15(2)-of CCS (CCA) Rules, 1965, wherein-the DA has disagreed with the findings of the Inquiry Officer on the second ahd third article of charge and subsequently passed an Order imposing Major Penalty on 27,12.2016. Aggrieved by the Order, Shri. P.Praveen Kumar, Appraiser had filed an appeal on 23.02.2017. The Appellate Authority vide Order-in- Appeal dated 12.07.2017 imposed major penalty only but reduced the period of penalty.
20. Aggrieved against the order of punishment, the applicant invoked the jurisdiction of the Tribunal.
1921. The Disciplinary Authority has taken into consideration the evidence led before the 10. Consistency in evidence both decumentary and oral evidences coupled with the fact that there does not appear any variation from the rules with regard to conducting of the inquiry support fully the case of the respondents. Thus, there is absolutely no irregularity or tegal flaws in the decision-making process.
22. 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. The following decisions are apposite to take into account while deciding the issue in this case:-
(a) In State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, a three Judge Bench of the Apex 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:
"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 20 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..."
(b) In B.C. Chaturvedi v. Union of India & Ors., 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:
"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 21 the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receive 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/T ribunal 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 22 reliability of evidence cannot be permitted to be canyassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 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." 1
(c) In High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & Anr., the 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:
"16. The Division Bench 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
- M0 reasonable person could have arrived at such a 23 conciusion, 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."
(d} In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, 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:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence ted 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 24 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.
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 vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana ~ 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC416),
(e) In Union of India vs Dalbir singh (2021) 11 SCC 321, the Apex Court * has held as under:-
A three-Judge Bench of this Court in State of Haryana Vv. Rattan Singfe was dealing with the issue of non-examination of passengers when the allegation against the conductor was non-issuance of the tickets. This Court held that in a domestic enquiry, strict and sophisticated rules of evidence under the Indian Evidence Act may not apply and that all materials which are logically probative for a prudent mind are permissible, There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. This Court held as under : (SCC p. 493, para 4) "4, It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Alt materials which are logically probative for a prudent hr in ae 25 mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Incian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that Passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The "residuum" rule to which counsel for the respondent referred, based upon certain passages from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement, The simple point is, was there some evidence or was there 70 evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair common-sense Way aS men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record."
(f) The Hon'ble Apex Court in Union of India & Ors. v. P. Gunasekaran had laid down. the broad parameters for the exercise of jurisdiction of judicial review. The Court held as under:
26"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behaif;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extrandous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f} the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; .
(i) the finding of fact is based on no evidence.