Gujarat High Court
Gulam Hussain Gulam Nabi Zaz vs Gujaarat Urja Vikas Nigam Ltd on 20 February, 2021
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/10281/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10281 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
======================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
GULAM HUSSAIN GULAM NABI ZAZ
Versus
GUJAARAT URJA VIKAS NIGAM LTD.
======================================
Appearance:
DHARA P BHATT(7530) for the Petitioner(s) No. 1
MR MALAY DANGE for MR. PARTH H BHATT(6381) for the
Petitioner(s) No. 1
MR KM PATEL, SENIOR ADVOCATE for MR SP HASURKAR(345)
for the Respondent(s) No. 1
======================================
CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 20/02/2021
ORAL JUDGMENT
Page 1 of 23
Downloaded on : Thu Jan 13 01:20:39 IST 2022
C/SCA/10281/2001 JUDGMENT [1.0] The petitioner, by way of this petition, challenges
the order of dismissal from service passed by the disciplinary authority and confirmed by the appellate authority being illegal, arbitrary and violative of Articles 14, 16 and 226 of the Constitution of India.
[1.1] The petitioner was appointed in the service of Gujarat Electricity Board ('Board' for short) initially as Industrial Relations Officer on 01.06.1982 and thereafter he was promoted and held different senior positions with the respondent - Board . Last he was holding the post of General Manager (HRD) at the time of initiation of disciplinary proceedings against him.
[1.2] The petitioner was served with the show-cause notice dated 03.10.1998, who was found to have committed the act of misconduct during his tenure as DGM, AGM and General Manager (HRD). The show-cause notice contained as many as 9 charges. The articles of charges and statements of allegations were furnished to the petitioner and he was called upon to show cause as to why disciplinary action should not be initiated against him. The petitioner submitted his reply to the show cause notice and after perusal of the same, the respondent - Board decided to initiate departmental proceedings against the petitioner. During pendency of the departmental proceedings, the petitioner came to be suspended vide order dated 25.01.1999. The respondent - Board vide letter dated 03.03.1999 issued charge-sheet to the petitioner together with articles of charges and statement of allegations. Broadly charges were levelled against the petitioner with regard to indiscipline, insubordination, breach Page 2 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT of orders, circulars, Rules and Regulations etc.. Thereafter, full fledge inquiry was conducted and the petitioner was provided with ample opportunity to defend and plead his case. On conclusion of the inquiry, Inquiry Officer concluded charges nos.3, 6 and 9 which were found to be proved by the Inquiry Officer. So far as charge no.9 was concerned, Inquiry Officer had left it to the competent authority to decide as to whether it was concealment or suppression on the part of the petitioner or not. Thus, the petitioner came to be exonerated of charges nos.1, 2, 4, 5, 7 and 8. On three counts charges against the petitioner was found to be proved by the Inquiry Officer. However, the Chairman, being the disciplinary authority, after carefully going through the record of the inquiry and the report of the Inquiry Officer accepted the report of the Inquiry Officer with regard to allegations nos.3 and 6. So far as charge no.9 with regard to concealment and suppression of his true birth date is concerned, the disciplinary authority prima facie found that it was concealment and suppression of facts on the part of the petitioner. The disciplinary authority further concurred with the findings of the Inquiry Officer for the allegations /charge nos.4, 5 and 7, which are not proved. However, he found that all the conclusion and findings recorded by the Inquiry Officer with regard to the allegations /charge nos. 1, 2 and 8 are erroneous and not correct. The disciplinary authority recorded detailed dissenting note disagreeing with the report of the Inquiry Officer so far as allegation /charge nos.1, 2, 8 and 9. All the required material alongwith the dissenting note with forwarding letter by the disciplinary authority was issued to the petitioner so as to enable him to make representation, if any, against those findings. The disciplinary authority had given an opportunity to submit his representation in writing Page 3 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT and /or in person on, 01.09.2000 at the Head Office, Baroda, which the petitioner did not avail. Though sufficient opportunity was provided to the petitioner to submit representation in writing as well as in person, on a particular date, which was extended on his request to another date, the petitioner forwarded the representation and chose not to appear in person for making oral submission.
[1.3] After thoroughly scrutinizing the record, report of the Inquiry Officer, detailed dissenting note, representation of the petitioner in writing, the disciplinary authority, after careful consideration held that allegations /charge nos.1, 2, 8 and 9 have been proved, which were of serious nature. Considering the totality of the charges proved and the consequent misconduct proved against him, he was of prima facie view that the petitioner cannot be continued in service, and therefore, proposed to inflict punishment dismissing him from Board's service and vide communication dated 16.09.2000 show cause notice came to be issued by the disciplinary authority calling upon the petitioner as to why the proposed punishment should not be inflected upon him.
[1.4] The petitioner with his detailed representation dated 25.09.2000 responded to the final show cause notice proposing dismissal from service. After considering all the detailed written representations, material collected during the course of inquiry, inquiry report and after careful consideration thereof, assigning reasons the disciplinary authority vide order dated 30.09.2000 concluded that allegation nos.1, 2, 3, 6, 8 and 9 were found to be proved against the petitioner, and therefore, considering the totality of different charges held that Page 4 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT the confidence reposed in the petitioner is shaken and he is not entitled to be continued in service of the respondent - Board, and therefore, the disciplinary authority dismissed the petitioner from the Board's service with immediate effect. The suspension period is treated as period "not spent on duty".
[1.5] Against the order of disciplinary authority the petitioner preferred Appeal before the Board. Though Board consists of Chairman presiding over the meeting of the Board, he left the meeting and rest of the Members considered the Appeal preferred by the petitioner considering the fact that petitioner was provided with fair opportunity of defending the case, which the petitioner had admitted on conclusion of inquiry that he has been given fair opportunity thereof. The Board also considered in detail each and every allegations, the charges and findings of the Inquiry Officer as well as that of the Chairman vis-à-vis points raised in Appeal. It unanimously dismissed the Appeal concurring with the decision taken by the Chairman and even confirming the punishment of dismissal from service recording complete loss of faith in the petitioner holding the punishment to be proportionate to the charges levelled and the position he held in service of the Board. The decision of the Board in Appeal, by way of Resolution No.21/319 dated 25.07.2001 came to be communicated by the Secretary of the Board vide communication dated 31.07.2001 to the petitioner. Therefore, against the order of the disciplinary authority as also the order passed in Appeal by the Board, the petitioner has filed the present petition.
[2.0] Shri Malay Dange, learned advocate appearing for Shri Parth Bhatt, learned advocate for the petitioner Page 5 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT
challenged the orders impugned on various grounds including,
(i) orders are without jurisdiction, (ii) inquiry is not conducted properly, (iii) charges are vague and (iv) final punishment imposed is disproportionate to the charges of misconduct. However, during the course of arguments, finding charges proved unassailable on merit and /or on the ground of non observations of the principles of natural justice, he restricted his submissions on the point of disproportionate punishment. He candidly dropped the challenge to the two orders on merit except arguing that the punishment imposed is too harsh for an employee, who is having unblemish record and when the order was passed, he was in his youth depriving him of even being eligible for service with other employers praying for its substitution with any other punishment to save him from the harshness he suffered. Though, as on date, the petitioner is superannuated, according to the submission of Shri Dange, learned advocate for the petitioner, the penalty can be substituted as it is unduly harsh.
[2.1] Shri Dange, learned advocate for the petitioner, submitted that the entire exercise of disciplinary proceedings against the petitioner is a product of personal vendetta of Shri Nalin Bhatt, the then Chairman of the Board at the time of dismissal from service. It is submitted that the petitioner had refused to favour the appointment of certain persons at the behest of Shri Bhatt and expressed his inability to consider illegal verbal orders. Therefore, it is submitted that the action initiated of disciplinary proceedings, findings and conclusions thereof is mala fide, and therefore, not only the disciplinary proceedings but the punishment imposed is required to be quashed and set aside.
Page 6 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022C/SCA/10281/2001 JUDGMENT [2.2] Though the learned advocate for the petitioner has
dropped the challenge to the impugned orders on merit, except the proportionality of the punishment imposed by filing written submissions, he has attempted to argue on merit also. It is asserted in the written submission that the petitioner is not the signing authority in respect of any of the allegations, which have been levelled against him. According to the petitioner in respect of allegation nos.2, 3 and 6, it was the Member (Administration), who was the signing authority and not the petitioner. It is only alleged against the petitioner that he did not point out certain aspects of the file to the relevant authority, however, the actual signing authority has not been charged.
[2.3] It is further submitted that in the entire chain of decision making, which starts from the Officers, who receives the file that goes through different offices before it is placed before the Head of the Department and thereafter the signing authority, it is only the petitioner, who is charged and several Officers are not even held responsible.
[2.4] It is further submitted that the disciplinary proceedings instituted against the petitioner is with a closed mind and the show cause notice issued to the petitioner is in a language, which would indicate that the petitioner was guilty even before the inquiry began. Citing the instance of allegation no.9 of the show cause notice dated 03.03.1999 with regard to the true birth date of the petitioner alleging that he is found guilty of suppression of material fact and willful concealment of truth even before the inquiry or disciplinary Page 7 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT proceedings started, according to the submission of Shri Dange, learned advocate for the petitioner, the show cause notice itself was issued with a predetermined and closed mind. It is further submitted that the charges in the show cause notice do not have any correlation with the allegation mentioned therein. It is further submitted by the learned advocate for the petitioner that the petitioner was materially prejudiced in this regard as without a clear correlation between the charges and the allegations the petitioner could not have defended himself in that regard. Thus, according to the submission, charges are vague in nature and have been prejudicial to the defence of the petitioner.
[2.5] In respect of allegation no.1 with regard to swearing on false affidavit is concerned, it does not mention any other misconduct. It is submitted that the affidavit was not a requirement of Board but title clearance certificate was the requirement of Board. It is submitted that the Inquiry Officer has exonerated the petitioner of this allegation by considering that Board as such had knowledge of the loan taken by the petitioner.
[2.6] It is further submitted that the finding in respect of allegation no.9 recorded by the disciplinary authority is perverse as in the dismissal order it is mentioned that the petitioner is guilty of breach of orders and circulars for breaching general standard order no.303 dated 03.09.1984, which is an expansion of the allegation as allegation was not amended. So far as allegation nos.2, 3, 6, 8 and 9 are concerned, in detail factual averments in respect of findings recorded by the Inquiry Officer is highlighted. However, all Page 8 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT those details are not reproduced herein as contained in the written submission because the learned advocate for the petitioner has candidly dropped the challenge to the impugned orders on merit and restricted his submission and challenge to the proportionality of the punishment imposed being too harsh.
[2.7] It is further submitted that the petitioner is a first time offender and the inquiry in question was the first departmental inquiry against the petitioner. No other disciplinary proceedings other than the proceeding, which is presently before the Court are initiated in his 17 years of service. It is further submitted that most of the allegations have been made after a long period of delay, and many cases over delay of over a decade, which has not been considered by the disciplinary authority or the appellate authority. Even then, as submitted in the written submission, for a first time offender, the harshest possible punishment of dismissal from service with consequential bar of employment under the state or state-allied ventures, has been imposed upon the petitioner by the authority. It is therefore submitted that the punishment imposed is shockingly disproportionate and the same deserves to be set aside by this Court. Citing Regulation of Board, it is submitted that the past record of the employee is also to be considered while awarding punishment, which has not been done when the petitioner is a first time offender.
[2.8] In support of the aforesaid contentions raised by the learned advocate for the petitioner, he has relied on the decision of the Supreme Court in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others reported in (1983) 2 SCC 442, more particularly paragraph 10 thereof for the Page 9 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT proposition that where finding is utterly perverse, the Court can always interfere with the order of disciplinary authority. The decision in the case of Ranjit Thakur Vs. Union of India and Others reported in (1987) 4 SCC 611, more particularly paragraph 25 thereof is relied on for a proposition that the punishment should be proportionate to the charge. Though question of choice and quantum of punishment is within the jurisdiction and discretion of the authority, the sentence has to suit the offence and the offender. The decision in the case of Ramanuj Pandey Vs. State of Madhya Pradesh and Others reported in (2009) 7 SCC 248 is relied on, more particularly paragraph nos.9 to 11 again for a proposition in respect of doctrine of proportionality. The case of Chairman Cum Managing Director, Coal India Limited Vs. Mukul Kumar Choudhuri reported in (2009) 15 SCC 620, more particularly paragraph nos.17, 25 and 26, copy of the said decision is provided from the Lawsuit software, again is on proportionality of punishment. The unreported case, J.H. Joshi Vs. State of Gujarat rendered in Special Civil Application No.5691 of 2002, copy of which is provided to the Court, relying on paragraph 16 thereof for a proposition that the punishment is to be proportionate to the charge against the delinquent considering all the relevant factors including the nature of charge, past conduct, punishment if any imposed earlier, nature of duties assigned etc.. The case of State of Bombay Vs. Atma Ram Shridhar Vaidya reported in AIR 1951 SC 157, copy of the said decision is also provided to the Court from Lawsuit software, more particularly paragraph 14 thereof defining the word 'vague'.
[2.9] He has therefore submitted that the orders Page 10 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT
impugned be quashed and set aside and the punishment of dismissal from service imposed by the authority be substituted with any other suitable punishment considering the gravity of charge, past conduct etc. [3.0] As against that, Shri K.M. Patel, Senior Advocate, learned Counsel assisted by Shri S.P. Hasurkar, learned advocate for the respondent, submitted that this Court while exercising jurisdiction under Article 226 of the Constitution of India cannot go into the adequacy or inadequacy of the material for recording the guilt. The disciplinary authority and the appellate authority thereof are the final fact finding authorities and while exercising the powers of judicial review under Article 226 of the Constitution of India, unless it is shown that it is a case of no evidence, this Court cannot interfere with the order of disciplinary authority. He has further submitted that the charges attributed are very clear and precise. In no way it can be termed as vague. The petitioner was given ample opportunity to defend his case. Not only that at the end of the inquiry he himself has testified that he was given full opportunity to defend his case and there is no breach of principles of natural justice while conducting the departmental inquiry, against him. He has further submitted that even the dissenting note disagreeing with the findings recorded by the Inquiry Officer provides in detail cogent reasons, and therefore, it cannot be said that no reasons are assigned by the disciplinary authority while disagreeing with the report of the Inquiry Officer. He has further submitted that not only cogent reasons are expressed in the dissenting note, the petitioner was asked to respond by written representation or even personal hearing by the disciplinary authority. While filing Page 11 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT written representation, he did not avail the opportunity of personal hearing. According to the submission of Shri Patel, Senior Advocate, learned Counsel, not only the disciplinary authority has considered the inquiry report, it has undergone threadbare analysis of each allegations and the material contained in the inquiry report and the documents collected during the course of inquiry. The appellate authority has also in detail assigned reasons for dismissing the Appeal.
[3.1] According to his submission, the scope of interference in matter of disciplinary proceedings under Article 226 of the Constitution of India is very limited. He has submitted that this Court should not interfere with the findings recorded by the fact finding authorities unless it is shown to be based on no evidence. He has further submitted that the petitioner has failed to show that the findings recorded by the disciplinary authority and confirmed by the appellate authority are based on no evidence.
[3.2] He has further submitted that the petitioner was holding high position of General Manager (HRD). He was head of nearly 5000 employees of the Board. His behaviour is expected to be exemplar for other employees. The charges levelled against the petitioner are of very serious nature wherein he is found to have sworn false affidavit for whatever purpose and whatever may be the outcome of it, is not befitting the post he held, which is of utmost trust, being General Manager (HRD). Not only that, the charge with regard to true birth date of the petitioner is also very serious though his birth date as per SCC examination certificate and as per the service record of Bank of Baroda where he was serving Page 12 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT prior to joining Board is 21.07.1953, and therefore, he willfully concealed his true birth date with the Board and got it recorded to be 12.01.1955 in the service record. As such, his conduct is unbecoming of an employee of Board, that too, General Manager (HRD), who is expected to have high moral standard and honesty. At last, out of the two charges, any one is sufficient to impose penalty of dismissal from service. According to the submission of Shri K.M. Patel, Senior Advocate, learned Counsel, punishment imposed is not outrageously shocking to the conscience of the Court and as such it is very proportionate to the misconduct of swearing false affidavit and willful concealment of true birth date by a person of a cadre of General Manager (HRD) heading an Institute of nearly 5000 employees.
[3.3] Shri K.M. Patel, Senior Advocate, learned Counsel for the petitioner, submitted that though the petitioner has alleged that the entire exercise against the petitioner is a product of personal vendetta of Shri Nalin Bhatt, the Chairman of the Board at the time of dismissal, in absence of that particular person joined as party respondent in the petition and being given an opportunity to meet with the same, no cognizance of such averment even if made on oath in the petition can be taken cognizance of. Though initiation of disciplinary proceedings against the petitioner is attributed to the Chairman of the Board at the time of dismissal, the petitioner has not joined the then Chairman against whom allegations are levelled of mala fide action as party respondent in this case, and therefore, he has submitted that the said assertion cannot be considered at all, more particularly, to set aside the disciplinary action concluded by dismissal of the Page 13 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT petitioner and confirmed by the appellate authority.
[3.4] In support of the the aforesaid contentions, Shri K.M. Patel, Senior Advocate, learned Counsel relied on the decision of the Supreme Court in the case of Ratnagiri Gas and Power Private Ltd. Vs. RDS Projects Ltd and Others reported in (2013) 1 SCC 524, more particularly paragraph nos.24 to 28.3, for a proposition that in absence of allegation of malice in fact made against any individual in writ petition nor any individual accused of mala fides impleaded as party respondent, findings on questions of mala fides cannot be factually or legally sustainable. The said decision is again relied on by the Supreme Court in recent decision in the case of Rajneesh Khajuria Vs. Wockhardt Ltd. reported in (2020) 3 SCC 86, more particularly, paragraph nos.20 and 22 thereof.
[3.5] He has also relied on the decision of the Supreme Court in the case of M/s. Bharat Iron Works Vs.
Bhagubhai Balubhai Patel and Others reported in AIR 1976 SC 98, more particularly paragraph nos.9 and 10 there of, on victimization /mala fides alleged against the employer. Drawing attention of the Court to the latter part of paragraph 11 of the said decision, he has submitted that once gross misconduct is established, plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations.
[3.6] He has relied on the case of Central Industrial Security Force Vs. Abrar Ali reported in (2017) 4 SCC 507, more particularly, paragraph nos.14 and 15 thereof for the Page 14 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT proposition that Courts will not interfere with findings of fact recorded in departmental inquiries, except where such findings are based on no evidence or where they are clearly perverse.
[3.7] He has further relied on the decision of the Supreme Court in the case of State of U.P. and Anr Vs. Man Mohan Nath Sinha and Anr. reported in 2009 (3) GLH 626 SC, more particularly paragraph nos.8 to 12 on the scope of judicial review to hold that judicial review is not directed against the decision, but is confined to decision making process. The Court does not sit in judgment on merits and it is not open to the Court to re-appreciate and reappraise the evidence led before Inquiry Officer.
[3.8] He has further relied on the decision in the case of R.S. Saini Vs. State of Punjab and Others reported in (1999) 8 SCC 90, more particularly, paragraph nos.16 and 17, for a proposition that inquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter, which can be permitted to be canvassed before the Court in writ proceedings.
[3.9] The case of Union of India and Others Vs. P. Gunasekaran reported in (2015) 2 SCC 610, more particularly paragraph nos.12 to 21 thereof is relied on for a scope of judicial review /scope of interference by the Court in service matters with disciplinary proceedings.
[3.10] He has also relied on the decision in the case of Apparel Export Promotion Council Vs. A.K. Chopra Page 15 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT reported in (1999) 1 SCC 759, more particularly paragraph 16 thereof again on scope of judicial review in disciplinary matters for a proposition that High Court normally should not interfere with the findings of facts recorded in departmental inquiry unless such findings are based on no evidence or that the findings were wholly perverse and /or legally untenable.
[3.11] The decision in the case of Bank of India and Another Vs. Degala Suryanarayana reported in (1999) 5 SCC 762, more particularly paragraph nos. 10, 11 and 13 on the scope of powers of disciplinary authority on findings of Inquiry Officer, it is held in that decision that the disciplinary authority may not agree with the findings recorded by the Inquiry Officer. In case of disagreement the disciplinary authority has to record the reasons for disagreement and then to record his own findings.
[3.12] The case in High Court of Judicature at Bombay Vs. Shashikant S. Patil and Another reported in (2000) 1 SCC 416, more particularly paragraph nos.3, 7, 16, 17, 19, 20 and 22 again on the proposition that the findings of the Inquiry Officer are not binding on the disciplinary authority and in case of disagreement there is necessity of recording reasons.
[3.13] He has further relied on the decision in the case of Haryana Financial Corporation and Another Vs. Kailash Chandra Ahuja reported in (2008) 9 SCC 31, more particularly paragraph 44 thereof on prejudice due to breach of natural justice - non furnishing of inquiry report to the charged employee must show that prejudice has been caused to him - non furnishing of report does not by itself render the Page 16 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT punishment invalid.
[3.14] He has further relied on the decision in the case of State of Meghalaya and Others Vs. Mecken Singh N. Marak reported in (2008) 7 SCC 580, more particularly paragraph nos.13 to 17 on the issue regarding relevant factors for punishment and scope of judicial intervention against quantum of punishment to argue that scope for interference in imposing of sentence is very limited and restricted to exceptional cases. On the very same principle he has relied on the decision in the case of Life Insurance Corporation of India and Others Vs. S. Vasanthi reported in (2014) 9 SCC 315, more particularly paragraph nos.10 to 13 thereof.
[4.0] Having heard the learned advocates for the appearing parties and considering the bulky material produced before the Court and the judicial precedents cited at the bar, before addressing the issue, which is pressed into service by the learned advocate for the petitioner with regard to proportionality of punishment, the law on the scope of judicial review is required to be summarized. As such the challenge to the impugned order on merit is dropped by the learned advocate for the petitioner and concentrated his arguments on the proportionality of punishment. However brief points on a scope of judicial review is summarized as under:
(i) The disciplinary authority is the sole judge of facts and in case Appeal is presented to the appellate authority, the appellate authority has also the power and jurisdiction to re-
appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authority.
Page 17 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022C/SCA/10281/2001 JUDGMENT (ii) Once the findings of fact, based on evidence, are
recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or the findings were wholly perverse and /or are legally untenable.
(iii) The adequacy or inadequacy of the evidence is not permitted to be canvassed before the Court in a petition under Article 226 of the Constitution of India.
(iv) Since High Court does not sit as appellate authority over the factual findings recorded during the departmental proceedings while exercising the power of jurisdiction review, High Court cannot normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent for that of the departmental authorities.
(v) Even in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or departmental appellate authority is either permissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
(vi) In exercise of powers of judicial review, High Court is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings, which cannot be faulted with for procedural illegalities or irregularities, which initiate the Page 18 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT process by which the decision was arrived at. (kindly refer Apparel Export Promotion Council (Supra)
(vii) The High Court will not act as appellate Court and reassess the evidence led in domestic inquiry and will not interfere on the ground that another view is possible on the material on record.
(vii) The Courts will 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, mala fide or based on extraneous consideration. (kindly see Central Industrial Security Force (Supra).
[4.1] Keeping in mind the aforesaid principles examining the case on hand, it is clear that the learned advocate for the petitioner has failed to point out any breach of principles of natural justice while conducting the disciplinary proceedings against him. On the contrary, at the end of inquiry when the Inquiry Officer asked the petitioner about his comments and opportunity to defend, vide question no.1 at 671, 673 and 674, the petitioner has clearly admitted that sufficient opportunity in accordance with principles of natural justice is given to him and Inquiry Officer has clearly endorsed the same in response to 674 at the conclusion of the inquiry and the petitioner has signed those proceedings stating that he has nothing to say further as full opportunity had been given to him to defend and he had consented to close the inquiry to the Inquiry Officer without any objection. He is unable to point out how findings recorded are based on no evidence. Therefore, he has wisely dropped the challenge to orders impugned on Page 19 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT merit and restricted it to the proportionality of punishment.
[4.2] The dissenting note of the disciplinary authority while disagreeing with the findings recorded by the Inquiry Officer contains cogent reasons for the disagreement and thereafter also, the petitioner has been given an opportunity to make representation as also to appear and argue in person, if need be. However, though written representation is made, he did not avail the opportunity of personally remaining present and submitting his case before the disciplinary authority.
[4.3] When after considering the written representation, final show cause notice for dismissal came to be issued by the disciplinary authority vide communication dated 16.09.2000 to which the petitioner had again by a written representation replied the same, even after considering the final representation, on final show cause notice, the disciplinary authority has assigned valid and cogent reasons for not agreeing with the findings recorded by the Inquiry Officer on certain charges. The petitioner is unable to dislodge those findings recorded by the disciplinary authority and confirmed even by the appellate authority in any manner. Each written explanation and probable case pleaded has been dealt with in detail by the disciplinary authority. Not only the disciplinary authority but the appellate authority has also assigned cogent reasons on each points raised by the petitioner, which requires no interference while exercising powers of judicial review under Article 226 of the Constitution of India, more particularly, when Court cannot re-appreciate the evidence and comes to its own conclusion. The petitioner miserably failed to show how and in what manner the findings of fact recorded are Page 20 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT based on no evidence or perverse and /or legally untenable. Again adequacy or inadequacy of evidence cannot be permitted to be canvased, and therefore, said argument is also not tenable. As such, my aforesaid finding is not required at all, more particularly, when the petitioner has dropped the arguments challenging the impugned orders based on merits. As very categorically submitted, learned advocate for the petitioner confined his arguments only to the proportionality of punishment.
[4.4] The argument that the petitioner has 17 years of unblemish career and he is first offender will not come to his rescue so far as interfering with the punishment imposed is concerned. The petitioner did not held the post of Class III or Class IV employee. He was General Manager (HRD) at the relevant time. He was heading approximately 5000 employees of the Board. As such, he should set an example for its employees rather to indulge in swearing false affidavit, though inconsequential in nature even if presumed, concealing true date of birth. These two major aspects, apart from other instances of grave misconduct of the petitioner, are sufficient to impose penalty of dismissal from service. The case relied on by the learned advocate for the petitioner in the case of Ranjit Thakur (Supra) was a case of signalman, who was court-martialed, having other offence, where sentence of a years' rigorous imprisonment was imposed upon the appellant, which was found to be in breach of procedural safeguard under Section 130 of the Indian Armys Act, 1950 and therefore, the Court interfered with the punishment imposed of dismissal from service based on bias on the part of respondent no.4 therein where Court found that it is so Page 21 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT shockingly disproportionate as to call for and justify interference in the punishment. In no case the said authority can be cited as precedent where nature of misconduct and penalty imposed is different than that case. Here in the present case, the man of an elevated status of General Manager (HRD) has indulged in swearing false affidavit and suppressed /concealed his true date of birth from the employer deliberately. Instead of setting example of an honest and upright man to other employees, he is found to have indulge in such practice. Apart from other instances of misconduct, which are found to be proved, again serious in nature, here it is a case of complete loss of faith in him, and therefore, punishment imposed is not outrageously shocking so as to interfere with it under Articles 226 and 227 of the Constitution of India. Another decision relied on in the case of Ramanuj Pandey (Supra) by the learned advocate for the petitioner is again of no help to him. So far as principle rendered in it, there is no quarrel on it. However in that case, a Head Constable was removed from service for wrongful booking a public servant under Lunacy Act, 1912 wherein on such an act termination from service was substituted to one of compulsory retirement exercising jurisdiction under Article 136 of the Constitution of India by the Supreme Court. However, the act in case under reference is in no way comparable at all to present case. The decision in the case of Chairman Cum Managing Director, Coal India Limited (Supra) where High Court interfered with the punishment for removal from service for unauthorized absence, considering the nature of misconduct and the status of delinquent, in the present case the decision in the case of Chairman Cum Managing Director, Coal India Limited(Supra) cannot be call in aid to Page 22 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022 C/SCA/10281/2001 JUDGMENT support the contention of the petitioner to substitute the punishment imposed upon him.
[4.5] The case of J.H. Joshi (Supra) relied on by the petitioner again will not come to his rescue as the Judicial Officer for lack of disposal of cases was imposed punishment of compulsory retirement is found to be proportionate punishment on Judicial Officer considering the nature of work he is assigned. On the contrary, the said decision goes against the petitioner even if considering his past record. He was holding the post of General Manager (HRD) heading a large Institute of about 5000 employees. He is expected to behave in a more dignified and honest manner to set an example but instead indulged in such a practice, which deserves dismissal from service.
[5.0] Considering the overall facts from the material produced and reasons assigned by the disciplinary authority as also the appellate authority, I see no reason to interfere with the petition or with the punishment imposed of dismissal from service, and therefore, this petition is rejected. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated.
(UMESH A. TRIVEDI, J.) siji Page 23 of 23 Downloaded on : Thu Jan 13 01:20:39 IST 2022