Madras High Court
S.Karthikeyan vs The Deputy Inspector General Of Police on 18 September, 2019
Bench: S.Manikumar, D.Krishnakumar
W.A.No.3263 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
W.A.No.3263 of 2019
S.Karthikeyan ... Appellant
vs.
1.The Deputy Inspector General of Police
Madurai Range, Madurai
2.The Additional Director General of Police (L&O)
Chennai-4
3.The Director General of Police
Tamil nadu, Chennai-4 ... Respondents
Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, against
the order made in W.P.No.730 of 2018, dated 17.01.2018.
For Appellant : Mr.M.Alagu Goutham
For Respondents : Mr.P.S.Sivashanmuga Sundaram
Spl.G.P
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W.A.No.3263 of 2019
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J) Instant writ appeal is filed against the order made in W.P.No.730 of 2018, dated 17.01.2018, by which the Writ Court dismissed the writ petition.
2. Shorts facts leading to the filing of the appeal are that the father of the appellant/petitioner was working as Inspector of Police in Chidambaram Town Police station from 09.10.2010 to 13.10.2011, As he was unable to relocate his family, he was staying in a hotel viz., R.K. Residency. Only on 20.09.2011 he was allotted quarters at Chidambaram. He paid a sum of Rs.1,75,000/- to one Balakrishnan, accountant of R.K.Residency. Appellant/Petitioner submitted that the said accountant has failed to bring payment into account. He subsequently left the job without accounting the said money. Owner of the hotel has filed a complaint before the Superintendent of Police that when asked for payment of rent, the appellant/petitioner threatened the manager and owner of the hotel with dire consequences. Appellant/petitioner was proceeded departmentally with a charge memo under Rule 3(b) of the Tamilnadu Police http://www.judis.nic.in 2/38 W.A.No.3263 of 2019 Subordinate Service (Discipline and Appeal) Rules, stating that while appellant/petitioner was staying in R.K.Residency allegedly from 09.10.2010 to 13.10.2011 misusing his authority, failed to make payment of rent.
3. Appellant/petitioner submitted that on receipt of the said charge memo dated 11.02.2016, he submitted his detailed explanation stating that after he was allotted a quarters in Chidambaram Town.
The appellant/petitioner has paid the rent to one Balakrishnan, accountant of the hotel, who has failed to bring into account. The Enquiry Officer appointed, after completing the enquiry, submitted a report holding that the charges levelled against the petitioner as proved. Enquiry report, was furnished to the appellant/petitioner on 06.03.2015, to which the appellant/petitioner has submitted his detailed representation on 13.07.2015. The Disciplinary Authority, accepting the report of the Enquiry Officer has imposed a punishment of stoppage of increment for two years without cumulative effect and further stated that the same would not affect his pensionary benefits.
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4. Aggrieved against the order of punishment dated 21.11.2015 imposing stoppage of increment for two years without cumulative effect, a statutory appeal was preferred by the appellant/petitioner to the Additional Director General of Police (L&O), Chennai, the second respondent, who according to the writ petitioner, without taking into account the points raised in the appeal grounds, rejected the appeal, as against which the appellant/petitioner has approached Director General of Police, Chennai, the third respondent, to review the order passed by the disciplinary and appellate authorities. The same was considered by the Director General of Police, Chennai/the third respondent in his proceedings in RC.No.115048/API(2)/2017 dated 05.08.2017 modified the punishment of stoppage of increment for two years without cumulative effect into one of stoppage of increment for one year which shall not operate to postpone his future increments from the date of original order.
5. Aggrieved against the orders passed by the respondents, the appellant/petitioner moved the writ petition seeking to quash the same.
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6. After hearing the learned counsel for the parties, vide order dated 17.01.2018 in W.P.No.730 of 2018, Writ Court has passed the following order:
"...
6. When the petitioner was posted at Chidambaram Town Police Station and stayed in an hotel called R.K.Residency, located in Chidambaram from 09.10.2010 to 13.10.2011, his peculiar defence in his explanation dated 10.11.2014 stating that he had paid the entire amount of his rent for the aforesaid period in one lumpsum to the tune of Rs.1,75,000/- is wholly unbelievable and unacceptable. When the petitioner is serving as an Inspector of Police, it is not known as to how he can take a plea that he has paid the said amount in a single instalment for his long stay commencing from 09.10.2010 to 13.10.2011, i.e., for a period of one year. That itself can be construed as a clear delinquency, for which, the first respondent has rightly imposed the punishment of stoppage of increment for two years without cumulative effect. In the appeal, although the second respondent has rightly confirmed the said order, the third respondent, in my considered opinion, ought not to have modified the punishment by traversing beyond the scope of review, in the light of the fact that the petitioner could not make out his case in the enquiry and also the fact that the Enquiry Officer's report has been accepted by the disciplinary authority.
In view of the foregoing discussion, the Writ Petition fails and the same is dismissed as being bereft of merits. No costs. Consequently, connected miscellaneous petition is closed.” http://www.judis.nic.in 5/38 W.A.No.3263 of 2019
7. Being aggrieved by the same, instant writ appeal has been filed on the following grounds:-
"Writ Court has failed to consider that the impugned order passed by the 1st respondent imposing a punishment on the petitioner is a non-speaking order. It is submitted that the petitioner on receiving the EO report submitted a detailed further representation for the EO report and requested to drop further action against him. A reading of the order of the disciplinary authority clearly shows that none of the points raised by the petitioner has not been considered and a finding has been recorded by the disciplinary authority. The first paragraphs of the impugned order speaks about the general allegations and none of the points raised by the petitioner has been met and a finding has been recorded. As per service rules, the disciplinary authority while passing an order in a disciplinary proceedings has to take into consideration the averments made in the further representation for the EO report and meet all the points raised by the petitioner and pass a speaking order. Admittedly, no points raised by the petitioner has been met and answered and hence it is a non-speaking order, cannot be sustained and thereby the rules of procedures have been violated in passing the order and on this ground alone it is liable to be set aside.
b) Writ Court has failed to consider the order of the appellate authority namely the 2nd respondent is equally a non-speaking order, cannot be sustained. The appellate authority who is the highest authority in respect of the merits of the charges has to strictly follow the rule 6(3) of TNPSS http://www.judis.nic.in 6/38 W.A.No.3263 of 2019 (D&A) Rules while deciding the appeal. As per the rule, the authority has to decide whether the delinquency has been committed and there is sufficient evidence for such a finding and finally he has to decide whether the punishment imposed is excessive, exorbitant and disproportionate to the nature of the delinquency. The order of the 2nd respondent is a non-speaking order in 2 lines without considering any of the points raised by the petitioner and hence it is in violation of rule 6(3) and on this ground also the impugned order is liable to be set aside.
c) Writ Court has not taken into consideration that the order of the 3rd respondent namely the Head of Dept is equally a non-speaking order. The HOD who is also one of the authority, as an appellate authority has to go into the merits of the charges and decide whether the punishment has been sustained by evidence available on record. The 3rd respondent did not go into the merits of the charges, except holding that the petitioner could have committed the delinquency by overstaying in the hotel and did not pay the amount, which cannot be sustained in the absence of any evidence. Hence the order of the 3rd respondent is equally a non-speaking order, cannot be sustained and liable to be set aside.
d) Writ Court has failed to take into consideration that the enquiry officer and the disciplinary authority solely relied upon the statement given by the witnesses in the preliminary enquiry which was not subjected to cross examination as solemn evidence for the purpose of coming to the conclusion that the petitioner has committed the delinquency. The evidence includes not only the chief examination, but also the answers given by the witnesses in the cross eAomination. It is submitted that in so far as the chief examination is concerned, it is an admitted fact that the witnesses were not examined in http://www.judis.nic.in 7/38 W.A.No.3263 of 2019 the box to depose the chief examination. The statements given by the witnesses in the preliminary enquiry was recorded, after it is being dictated and typed by the enquiry officer and the petitioner was directed to cross examine. Hence the statements given in the preliminary enquiry is taken as the chief examination in the oral enquiry and thereafter subjected to cross examination. A reading of the cross examination of ail the witnesses shows that the petitioner has paid the amount to Balakrishnan, the then Accountant who left the services without the knowledge of the hotel proprietor and thereafter one Balasubramanian has taken charge who was not aware of the fact that the amount was paid to Balarkrishnan, the then Accountant of RK Residency. Hence the fact that the petitioner has paid the amount then and there to the accountant Balakrishnan was not brought to the knowledge of the subsequent Manager Balasubramanian who preferred a complaint to the authorities under the impression that the petitioner has not paid the rent due to them for his stay in the hotel during that relevant time. The above piece of evidence in the cross examination was not considered by the enquiry officer as well as the disciplinary authority for coming to the conclusion that the petitioner has committed the delinquency.
It is submitted that the above piece of evidence would go to show that the petitioner has paid the amount and the claim for payment of rent for his stay in the hotel is found to be false and that does not warrant initiation of disciplinary proceedings. Hence the evidence available on record in the cross examination would go to show that the petitioner has not committed the delinquency and the amount paid towards the rent by the petitioner to the then Accountant Balakrishnan was not accounted for, for which the petitioner cannot be held http://www.judis.nic.in 8/38 W.A.No.3263 of 2019 responsible. It is also relevant to mention that neither the proprietor of RK Residency nor the Manager denied the employment of Balakrishnan and that Balakrishnan has served as Accountant and the amount paid to him was not brought to the knowledge of the subsequent Manager Balasubramanian who preferred a complaint. Hence the only charge against the petitioner is that after having stayed in the hotel from 9.10.10 to 13.11.11 has not paid the rent to the tune of Rs.2,05,000 cannot be proved through acceptable evidence and on merits also the findings rendered by the enquiry officer as well as the disciplinary authority is liable to be set aside.
e) Writ Court has not considered the fact that the respondents failed to see that the petitioner has paid a sum of Rs.1,75,000/- to RK Residency for this stay of 346 days and the said amount was received by the Accounts Manager Balakrishnan who hails from Andhra Pradesh. During the time in which the petitioner has paid the amount the complainant Balasubramanian was not available. But the fact remains that the said Balakrishnan has absconded and there was a complaint against Balakrishnan in the Chidambaram Town pokct-station and the same was pending. It is an admitted fact that Balasubramanian was examined as PW1 and the hotel proprietor Ganesan was examined as PW4. They explained everything in the oral enquiry which would go to show that the petitioner has not defaulted in making payment to the hotel during the period in which he has stayed. Moreover, there is no direct evidence or corroborative evidence available to show that the petitioner has threatened the Manager when he demanded the rent from him for his stay in RK Residency. The evidence of Balasubramanian would go to show that the 2nd charge that the petitioner has threatened Balakrishnan with http://www.judis.nic.in 9/38 W.A.No.3263 of 2019 dire consequences is also not proved through acceptable evidence. Hence none of the charges against the petitioner has been proved through acceptable evidence and hence the entire finding is liable to be set aside.
f) Writ Court has not considered that the punishment imposed on the petitioner is excessive, exorbitant and disproportionate to the nature of the delinquency. It is submitted that in the case of a trivial delinquency unconnected with the discharge of his official duties, inspite of the no evidence available on record, the petitioner has been given a severe punishment of stoppage of increment, thereby his promotion as Dy Supdt of Police, Category-I has been denied. Hence on the ground of excessive punishment also, it is liable to be set aside.
g) Viewed from any angle, the impugned order of the Learned Judge is liable to be set aside and the Petitioner is entitled for the relief sought in the Writ Petition."
8 . Heard the learned counsel for the parties and perused the materials available on record.
9. Three authorities have concurrently held that the Inspector of Police has committed the delinquency alleged. Reappreciation of evidence is not permissible in a proceeding under Article 226 of the Constitution of India.
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10. Now let us consider some of the decisions of the Hon'ble Supreme Court as to whether, the Tribunal/Court can sit in appeal over the findings enquiry report, re-appreciate the evidence and set aside the penalty, unless such findings are perverse or when there is a case of no evidence.
(i) In State of A.P. v. S.Sree Rama Rao reported in AIR 1963 SC 1723, the Hon'ble Supreme Court, held that, "The High Court is not constituted in a proceeding under Article 226 of the Constitution as 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. Whether 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."
(ii) In Union of India v. Sardar Bahadur reported in 1972(4) SCC 618, the Hon'ble Supreme Court, held as under:
http://www.judis.nic.in 11/38 W.A.No.3263 of 2019 "A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings, with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a Court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy of reliability of the evidence cannot be canvassed before the High Court."
(iii) In State of A.P. v. Chitra Venkata Rao, reported in 1975 2 SCC 557, the principles have been discussed by the Hon'ble Supreme Court, at Paragraph Nos. 21-24, which read as follows:
“21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723 : (1964) 3 SCR 25 : (1964) 2 LLJ 150] . First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High http://www.judis.nic.in 12/38 W.A.No.3263 of 2019 Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh [(1969) 1 SCC 502 :
(1969) 3 SCR 548] said that the High Court does not interfere with http://www.judis.nic.in 13/38 W.A.No.3263 of 2019 the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by http://www.judis.nic.in 14/38 W.A.No.3263 of 2019 the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477 : (1964) 5 SCR 64] .
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
(iv) In State of Haryana v. Rattan Singh, reported in 1977 2 SCC 491, wherein the Hon'ble Supreme Court, held as follows:
“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. All materials which are logically probative for a http://www.judis.nic.in 15/38 W.A.No.3263 of 2019 prudent 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 Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, 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, fairplay 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 no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense 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. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.” http://www.judis.nic.in 16/38 W.A.No.3263 of 2019
(v) In Union of India v. Parma Nanda reported in 1989 (2) SCC 177, the Hon'ble Supreme Court observed as under:
"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority."
(vi) In Government of T.N. v. A.Rajapandian reported in 1995 (1) SCC 216, the Hon'ble Supreme Court, while considering the above issue, at Paragraph No.4, held as follows:
"4. The Administrative Tribunal set aside the order of dismissal solely on reappreciation of the evidence recorded by the inquiring authority and reaching the conclusion that the evidence was not sufficient to prove the charges against the respondent. We have no hesitation in holding at the outset that the Administrative Tribunal fell into patent error in reappreciating and going into the http://www.judis.nic.in 17/38 W.A.No.3263 of 2019 sufficiency of evidence. It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than that of the inquiring authority."
(vi) In State of T.N v. S.Subramaniam, reported in 1996 7 SCC 509, a three judge Bench of Hon'ble Supreme Court, observed as follows:
“5. The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether http://www.judis.nic.in 18/38 W.A.No.3263 of 2019 the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 :
(1996) 32 ATC 44 : JT (1995) 8 SC 65] , State of T.N. v. T.V.
Venugopalan [(1994) 6 SCC 302 : 1994 SCC (L&S) 1385 : (1994) 28 ATC 294] (SCC para 7), Union of India v. Upendra Singh [(1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] (SCC at para 6), Govt. of T.N. v. A. Rajapandian [(1995) 1 SCC 216 : 1995 SCC (L&S) 292 :
(1995) 29 ATC 89] (SCC para 4) and B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 : JT (1995) 8 SC 65] (SCC at pp. 759-60). In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside. OA/TP/WP stands http://www.judis.nic.in 19/38 W.A.No.3263 of 2019 dismissed.”
(vii) In Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and others reported in 1997 (3) SCC 657, the Hon'ble Supreme Court at Paragraph 6 of the judgment, answered a question as to whether the High Court would be correct in law to appreciate the evidence, the manner in which the evidence was recorded and record a finding in that behalf. The Hon'ble Supreme Court held as follows:
"The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice."
(viii) Hon'ble Supreme Court in Commissioner and Secretary to the Government v. C.Shanmugam, reported in 1998 (2) SCC 394, considered a case of compulsory retirement, which was interfered by the Tribunal on the ground of absence of evidence. The Hon'ble Apex Court, after considering various judgments on the point, held that only in the absence of any evidence, i.e., no evidence or if there was any perversity, the Court can interfere. At Paragraph 2 of the http://www.judis.nic.in 20/38 W.A.No.3263 of 2019 judgment, the Hon'ble Supreme Court held as follows:
"It is seen from the order of the Tribunal that at the regular departmental enquiry held, the employees who were present at the time of the incident in the office on 02.08.1980 were examined and they all supported the charges (misbehaviour with the superior officer) levelled against the respondent/delinquent. The Tribunal on a re-appreciation of evidence, in judicial review, was of the view that the enquiry report based on such evidence cannot be totally accepted as free from bias and an order passed on such reports cannot be accepted as a fair and just one. Assailing this view of the Tribunal, the learned counsel appearing for the appellants brought to our notice three judgments of this Court reported as State of T.N. v. Subramaniam, Govt. Of T.N. v. A.Rajapandian and State of Haryana v. Rattan Singh. In State of T.N. v. Suibramaniam, a three- Judge Bench of this Court observed as follows: (SCC.pp.511-12, para
5) "The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence to reach its own finding that the charge has not been proved. The Tribunal is not a Court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by the Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record the findings whether the charge has been proved or not. It is equally settled law http://www.judis.nic.in 21/38 W.A.No.3263 of 2019 that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would (sic) come to its own conclusions on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence."
(ix) In Union of India and Others vs. A. Nagamalleshwar Rao, reported in 1998 1 SCC 700, the Hon'ble Supreme Court held thus:
"5. It was contended by the learned counsel for the appellant, and in our opinion rightly, that the approach of the Tribunal was erroneous as it had proceeded to examine the inquiry proceedings as if it was hearing an appeal in a criminal case. Sanyasi Rao was an officer working in the Office of the Divisional Engineer (Telecom) and was conversant with the practice and procedure followed in that office in making entries in the Z Register. Merely http://www.judis.nic.in 22/38 W.A.No.3263 of 2019 because he had no personal knowledge about the practice prevailing in 1980 and the entry relating to the respondent, his evidence could not have been regarded by the Tribunal as no evidence. The Tribunal had committed an error of law and also exceeded its jurisdiction in holding that the extract which was produced from the Z Register was not legal evidence and could not have been relied upon the Inquiry Officer. The Tribunal failed to appreciate that the register was maintained in the Office of Divisional Engineer as an official record and it was thus in the nature of a public document. It was duly authenticated by a competent officer. The Tribunal after stating that the strict rules of procedure and proof do not apply to a departmental inquiry, committed an error in applying the same in this case. It is really surprising that in spite of the clear position of law in this behalf and as regards the jurisdiction of the Tribunal in such cases, the Tribunal thought it fit to examine the evidence produced before the Inquiry Officer as if it was a court of appeal."
(x). In Apparel Export Promotion Council v. A.K.Chopra reported in 1999 (1) SCC 759, the Hon'ble Supreme Court at Paragraphs 16 and 17, held as follows:
"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an 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 authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those http://www.judis.nic.in 23/38 W.A.No.3263 of 2019 factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over he factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible 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. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the Court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of the 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 vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans reported in 1982 (3) ALL. ER 141 HL observed:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter http://www.judis.nic.in 24/38 W.A.No.3263 of 2019 which it is authorised or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the Court."
"17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
(xi). The above position was reiterated in Commandant v.
D.Paul reported in 1999 SCC (L&S) 789, and at Paragraphs 4 and 5 of the judgment, the Hon'ble Supreme Court held as follows:
"4. .........It is not the function of the Tribunal to review the decision and to arrive at an independent finding on the evidence and that if there be some legal evidence on which the findings can be based, the adequacy or the reliability of that evidence is not a matter which can be permitted to be canvassed before the Tribunal."
"5. ............ It is settled law that the Tribunal, while exercising its power of judicial review in respect of disciplinary action taken against the a government servant, cannot re- appreciate the evidence adduced to prove the charges in the disciplinary proceedings."
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(xii) In High Court of Judicature at Bombay v. Shashikant S. Patil reported in 2000 (1) SCC 416, while considering the scope of Judicial Review of the decision of the disciplinary authority in exercise of powers, under Article 226 of the Constitution of India, the Hon'ble Apex Court, at Paragraph 16, held as follows:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of 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 consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution."
(xiii) In State of Mizoram and Another vs B.D.Thakur with http://www.judis.nic.in 26/38 W.A.No.3263 of 2019 Civil Appeal No.5219 of 2002, B.D.Thakur vs State of Mizoram and Another, the Hon'ble Supreme Court in para 4 held thus:
“4. Having heard the learned counsel for the parties and on examining the order of the disciplinary authority which was based upon the findings arrived at by the enquiring officer and on scrutiny of the judgment of the learned Single Judge, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the finding of guilt arrived at by the disciplinary authority. On the basis of the findings arrived at by the enquiring officer, the Division Bench of the High Court has itself in its order stated that there were ample evidence in support of the conclusion and if the finding is supported by oral evidence the same need not and should not have been interfered with on the ground that the extent has not been examined. So far as the question whether order of termination was passed by the appointing authority or not is concerned, the learned Single Judge himself has reviewed his decision and held that the Superintendent of Police was the appointing authority and as such was entitled to take the final decision in the disciplinary proceeding. In the aforesaid premise, we set aside the impugned judgment of the Division Bench and Single Judge of the High Court of Gauhati and hold that the writ petition would stand dismissed. The appeal of the State is allowed and that of the respondent stands dismissed.”
(xiv) In Sub-Divisional Officer, Konch vs Maharaj Singh, reported in 2003 9 SCC 191, the Hon'ble Supreme Court held thus:
http://www.judis.nic.in 27/38 W.A.No.3263 of 2019 “5. In view of the submissions made at the Bar, we have scrutinised the impugned order of the High Court. A bare perusal of the same makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has reappreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in reappreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction under Article 226 in interfering with the findings arrived at by the enquiring authority by reappreciation of the evidence adduced before the said enquiring authority. We, therefore, set aside the impugned order of the High Court and the writ petition filed stands dismissed. This appeal is allowed.”
(xv) In M.V.Bijlani v Union of India and Others, reported in 2006 5 SCC 88, wherein the Hon'ble Supreme Court, held as follows:
“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence http://www.judis.nic.in 28/38 W.A.No.3263 of 2019 to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” (xvi) In Moni Shankar vs Union of India and Another, reported in 2008 3 SCC 484, at Paragraph No.17, the Hon'ble Supreme Court held that:
“....
17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the http://www.judis.nic.in 29/38 W.A.No.3263 of 2019 premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
(See State of U.P. v. Sheo Shanker Lal Srivastava (2006) 3 SCC 276) and Coimbatore District Central Coop. Bank v. Employees Assn. (2007) 4 SCC 669.” (xvii) In General Manager (Operations) State Bank of India and Another vs R.Periyasamy, reported in 2015 3 SCC 101, at paragraph No.10 and 14, the Hon'ble Supreme Court observed thus:-
“10......
The learned Single Judge committed an error in approaching the issue by asking whether the findings have been arrived at on acceptable evidence or not and coming to the conclusion that there was no acceptable evidence, and that in any case the evidence was not sufficient. In doing so, the learned Single Judge lost sight of the fact that the permissible enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned Single Judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not http://www.judis.nic.in 30/38 W.A.No.3263 of 2019 sufficient to hold the respondent guilty.”
14. In administrative law, it is a settled principle that the onus of proof rests upon the party alleging the invalidity of an order [Minister of National Revenue v. Wright's Canadian Ropes Ltd., 1947 AC 109 at p. 122 (PC), Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn., (1948) 1 KB 223 at p. 228 : (1947) 2 All ER 680 (CA), Fawcett Properties Ltd. v. Buckingham County Council, 1959 Ch 543 at p. 575, affirmed 1961 AC 636 : (1960) 3 WLR 831 : (1960) 3 All ER 503 (HL)] . In other words, there is a presumption that the decision or executive order is properly and validly made, a presumption expressed in the maxim omnia praesumuntur rite esse acta which means “all things are presumed to be done in due form ”
11. What is perversity has been dealt with by the Hon'ble Supreme Court, is as follows:-
(i) In State of NCT of Delhi v. Sanjeev reported in 2005 (5) SCC 181 = AIR 2005 SC 2080, the Hon'ble Supreme Court observed thus, ".......to characterize a decision of the administrator as "irrational'' the Court has to hold, on material, that it is a decision "so outrageous'' as to be in total defiance of logic or moral standards."
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(ii) In State of A.P., v. Abdul Khuddus reported in 2007 (15) SCC 261, the Hon'ble Supreme Court, at Paragraph 12, held that, "the High Court, while reversing the findings of the Special Court could also not come to a conclusion of fact that the respondents had perfected their title in respect of the schedule land by adverse possession or that the schedule land belonged to Gandhi Hill Society. Such being the position, we are unable to sustain the order of the High Court, which had set aside the findings of fact arrived at by the Special Court, which, in our view, were arrived at on consideration of the materials on record and which, by any stretch of imagination, cannot be said to be based on no evidence or surmises or conjectures and therefore, it was not open to the High Court, in the exercise of its writ jurisdiction, to set aside the findings of fact arrived at by the Special Court which were based on sound consideration of the materials on record."
(iii) In Arulvelu v. State reported in 2009 (10) SCC 206, the Hon'ble Supreme Court, at Paragraphs 27, 29 and 30, explained what "perverse" means, "27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
http://www.judis.nic.in 32/38 W.A.No.3263 of 2019 International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
......
29. In Kuldeep Singh v. The Commissioner of Police, (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence http://www.judis.nic.in 33/38 W.A.No.3263 of 2019 which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under:
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
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(iv) In The General Manager (P) Punjab & Sind Bank v. Daya Singh reported in (2010) 11 SCC 233, at Paragraph 24, the Hon'ble Supreme Court, held as follows:
"24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arilvelu v. State, 2009 (10) SCC 206. The decision of the High Court cannot therefore be sustained."
11. In the light of the above decisions, said contention is untenable."
(v) In S.R.Tiwari v. Union of India reported in 2013 (6) SCC http://www.judis.nic.in 35/38 W.A.No.3263 of 2019 602, at Paragraph 30, the Hon'ble Supreme Court, held as follows:
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
12. Going through the enquiry report, we do not find any perversity in the finding.
13. Though several grounds have been raised by the appellant, challenging the order of the writ court, giving due consideration to the decisions of the Hon'ble Supreme Court, considered by us, we are not inclined to accept the contentions of the appellant, for the reason that while considering the case of the appellant and evidence considered by the disciplinary authority, writ court has taken note of the fact that being an Inspector, as to how the appellant/petitioner was able to pay the entire amount in single instalment and writ court has even gone on to say that the third respondent ought not to have http://www.judis.nic.in 36/38 W.A.No.3263 of 2019 modified the punishment imposed by traversing beyond the scope of review, in the light of the fact that the petitioner could not make out his case in the enquiry. Going through the evidence on record, we find that no evidence has been produced by the Inspector of Police, to prove payment of rent, defence pleaded.
14. Going through the case on hand, material on record, and the decisions considered, it cannot be said that it is a case of perversity, nor there is no preponderance of probability. While that being the case, in the light of the decisions considered, this Court is not inclined to interfere with the order of the Writ court and accordingly, instant writ appeal is dismissed. No costs.
(S.M.K., J.) (D.K.K., J.) 18.09.2019 Index: Yes / No Internet: Yes / No kpr http://www.judis.nic.in 37/38 W.A.No.3263 of 2019 S.MANIKUMAR,J.
AND D.KRISHNAKUMAR, J.
kpr/dm To
1.The Deputy Inspector General of Police Madurai Range, Madurai
2.The Additional Director General of Police (L&O) Chennai-4
3.The Director General of Police Tamil nadu, Chennai-4 W.A.No.3263 of 2019 18.09.2019 http://www.judis.nic.in 38/38