Meghalaya High Court
Shri. Vikram D. Momin vs The State Of Meghalaya And Ors on 13 June, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
W.P.(C) No.311/2013
Shri. Vikram D. Momin,
S/o Shri. Kamal Ch. Sangma,
R/o Mawiong, Shillong,
PO + PS: Mawlai,
District:East Khasi Hills, Meghalaya. :::: Petitioner
- Vrs -
1 The State of Meghalaya, represented by the
Chief Secretary to the Govt. of Meghalaya, Shillong.
2. The Secretary to the Govt. of Meghalaya,
Home (Police) Department, Meghalaya,
Shillong.
3. The Director General and Inspector General of Police,
Meghalaya, Shillong.
4. The Inspector General of Police (Law & Order),
Meghalaya, Shillong.
5. The Deputy Inspector General of Police,
(Eastern Range), Meghalaya, Shillong.
6. The Superintendent of Police,
East Khasi Hills District, Shillong.
7. The In-charge,
Cantonment Beat House, Shillong. :::: Respondents
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH
For the petitioner : Mr. AH Hazarika, Adv
For the respondents : Mr. S Sen Gupta, GA
Date of hearing : 05.06.2014
Date of Judgment : 13.06.2014
JUDGMENT AND ORDER
By this writ petition, the petitioner is assailing the order dated
04.07.2012 passed by the respondent No.6 i.e. the Superintendent of Police,
East Khasi Hills District, Shillong for dismissing the petitioner from service
Page 1 of 34
and also the order dated 14.05.2013 passed by the respondent No.5 i.e. the
Deputy Inspector General of Police (Eastern Range), Meghalaya, Shillong
dismissing the appeal filed by the petitioner against the dismissal order dated
04.07.2012.
2. Heard Mr. AH Hazarika, learned counsel for the petitioner and
Mr. S Sen Gupta, learned GA appearing for the State respondents.
3. The concise fact leading to the filing of the present writ petition
is noted. The petitioner was appointed as Constable vide order dated
01.11.2001 issued by the Superintendent of Police, East Khasi Hills District,
Shillong (respondent No.6). The respondent No.6, Superintendent of Police,
East Khasi Hills District, Shillong issued the show cause notice dated
25.11.2011 for the two charges viz "(i) on 16.11.2011, at about 12:30 PM,
S.I. K.P. Singh, I/C Cantonment B.H. seized a polythene bag lying
abandoned at vegetable market, Bara Bazar containing one set of Police
Uniform, one pouch, 2(two) Nos. Magazines of INSAS Rifle and 37(thirty
seven) Rounds of 5.56 ammunition. Later on, it had been ascertained that
the said ammunition, pouch and magazines of INSAS Rifle were issued to
the petitioner from the Unit Armoury as noted in the record and (ii) it was also
found that 3(three) Rounds of 5.56 ammunitions were also found missing
from the lot issued to the petitioner" and asked the petitioner to submit his
written statement/explanation within 15 days of receipt of the show cause
notice as to why any of the penalties laid down in Rule 66 of the Part III of
A.P. Manual should not be inflicted on the petitioner. Further, under the said
show cause notice, the petitioner was allowed to inspect the documents
which the petitioner would request in writing to the respondent No.6 for the
permission to inspect the documents within 10 days of receipt of the show
Page 2 of 34
cause notice. Further the petitioner was allowed to be heard in person, if he,
seeks for such permission in writing.
4. In response to the said show cause notice, the petitioner filed
his written statement/show cause statement dated 17.12.2011 to the
respondent No.6, Superintendent of Police, East Khasi Hills District, Shillong
wherein, the petitioner apologized for what had occurred and also promised
that he will not repeat the same in the near future. The show cause
statement dated 17.12.2011 (Annexure-III to the writ petition) reads as
follows:-
"To,
The Superintendent of Police,
East Khasi Hills District, Meghalaya.
(Through proper Channel)
Sub: WRITTEN EXPLANATION.
Ref: Your letter No.RE/GEN/PT-III/2011/911 dated: 25.11.2011
Sir,
With due humble and respect and in reference to the
subject cited above, I have the honour to lay before you some
few lines favour of your kind consideration and sympathetic
order please:
1. That Sir presently I am attached to DSP Traffic as an orderly
and performing my duty honestly and deligently.
2. That Sir, I am served with a Show Cause Notice as cited
above with statement of allegations for gross negligence and
dereliction of duty.
3. That Sir, as per the statement of allegation No.1, that on
16.11.2011 at about 12:30 PM a polythene bag lying
abandoned at vegetable market, Bara Bazar containing one set
of Police Uniform, One Pouch, 2 Magazines of INSAS Rifle and
37 rounds of 5.56 ammunitions was found by S.I. K.P. Singh
Cantonment B.H. was true and admitted the same. That the
real facts of the case was that on that very day, I was
proceeding to Police Reserve via/ through Bara Bazar for
joining my duty after recovering from sick rest along with my
uniform and ammunitions kept on a polythene bag, but
unfortunately the said bag was missing from my hand due to
pushing from different directions/angles for overcrowding at
Bara Bazar area.
Page 3 of 34
4. That Sir, as per statement of allegation No.-2, 3 rounds of
5.56 ammunitions were missing from the lot issued to me which
is false and I deny the same in total. The true fact is that the
said 3 rounds of missing ammunitions are kept at my resident
till date and I will submit the same before the concerned
authority.
5. That Sir, I duly apologize for what had occurred and I also
promise/assures you not to repeat the same in the near future.
Under the premises and circumstances stated above I therefore
pray before you to kindly forgive me for my act and I duly
apologize for the same, and that apart I also promise/assures
you not to repeat the same in the near future.
Thanking You,
Dated: 17th Dec‟ 2011 Yours faithfully,
Sd/-
(ABC/471 Vikram G.Momin)
East Khasi Hills DEF,
Police Reserve, Shillong."
5. The Superintendent of Police, East Khasi Hills District, Shillong
(respondent No.6) was not satisfied with the show cause statement dated
17.12.2011 submitted by the petitioner and passed an order i.e. D.O.
No.4866, dated 23.12.2011 that the show cause statement submitted by the
petitioner was found unsatisfactory and Smti. Cherry Shadap, MPS, Deputy
Superintendent of Police (City), East Khasi Hills, Shillong is appointed as
Enquiry Officer (E.O.) and she should submit the findings early. Thereafter,
the departmental enquiry had been initiated against the petitioner for the said
charges. The Enquiry Officer submitted a report that the charges leveled
against the petitioner had been proved beyond any shadow of doubt. The
said enquiry report was duly considered by the respondent No.6,
Superintendent of Police, East Khasi Hills District, Shillong and he was in full
agreement with the findings of the Enquiry Officer and passed the impugned
order dated 04.07.2012 for imposing major penalty of dismissal from service
to the petitioner with immediate effect and the period of unauthorized
Page 4 of 34
absence from duty w.e.f. 26.08.2011 is treated as Leave Without Pay (LPW)
and directed the petitioner to deposit all the Govt. kits, I.D. Card etc. issued
to him. For easy reference, the impugned order dated 04.07.2012 is quoted
hereunder:-
"OFFICE OF THE SUPERINTENDENT OF POLICE:::
EAST KHASI HILLS DISTRICT, SHILLONG:::
....................
O R D E R
D.O. NO.3374 DATE 4/7/2012 Perused the findings submitted by the Enquiry Officer, Smti. Cherry Shadap, MPS, Deputy Superintendent of Police (City), Shillong pertaining to DP No.12/2011 drawn up against ABC/471 Vikram D. Momin of East Khasi Hills D.E.F. I agree with the findings of the E.O. The first charge that on 16.11.2011, at about 12:30 PM, S.I. K.P. Singh, I/C Cantonment BH seized a polythene bag containing one set of Police Uniform, one Pouch, 2 (two) Magazines of INSAS Rifle and 37 (thirty seven) Rounds of 5.56 ammunition which were issued to the delinquent from the Unit Armoury as noted in the record has been proved beyond any shred of doubt.
The second charge that 3(three) Rounds of 5.56 ammunitions were also found missing from the lot issued to the delinquent has been proved beyond any reasonable doubt.
During the course of the Departmental Proceedings, the delinquent was given ample opportunity to cross-examine the witnesses but he declined to do so. He was also given the opportunity to produce witness(es) in his defence but he could not do so.
On perusal of the records, it was found that apart from this instant DP, two other DPs were also drawn up against him in 2006 and again in 2007 for creating trouble under the influence of liquor and for firing one Round in the air from his Service weapon while on Security duty at Lafarge Mining Company, Shella respectively. He was also punished on numerous occasions for acts of misconduct, indiscipline and gross negligence and dereliction of duty. From the record itself, it is evident that the delinquent lacks the qualities and ethics expected of a responsible member of the Police Force.
It was indeed fortunate that the magazines and Rounds of the INSAS Rifle could be retrieved by I/C Cantonment BH or they could have fallen into wrong hands and possibly use for Page 5 of 34 criminal activities. The three Rounds which were found missing from the lot issued to him were eventually deposited back to the unit Armoury by the delinquent.
The conduct of the delinquent is simply outrageous and one cannot comprehend the quantum of negligence and irresponsible behavior one can indulge oneself into without the slightest concern of the consequences associated with it. Because of the presence of some black Sheep in the Police family, the credibility and efficacy of the Police force is being questioned from time to him. It is also shocking to note that the delinquent did not even bother to report the matter to the authority concerned which speaks volume of the character of the delinquent.
Such Callous attitude by a member of the Police force is most despicable and can neither be ignored nor condoned. In fact, the delinquent was given several opportunities to reform himself but he failed to do so. From the records, it is vividly clear that the delinquent is an incorrigible character, beyond the parameters of redemption. The delinquent was also found absent from duty w.e.f. 26.08.2011 till date without leave nor permission.
In the light of the facts discussed above, I am left with no other option but to inflict the sternest of punishments to the delinquent, so that it sends the right signal to the rank and file in the Police force.
I hereby order that ABC/471 Vikram D. Momin be dismissed from service with immediate effect. The period of unauthorized absence from duty w.e.f. 26.08.2011 is treated as Leave Without Pay (LWP). He is directed to deposit all government kits, I.D. Card etc. issued to him to „Q‟ Branch, Police Reserve, Shillong.
This disposed off DP No.12/2011 R.I. for D.O. He is directed to send copy of this order along with findings of the Enquiry Officer to ABC/471 Vikram D. Momin for information and necessary action.
Sd/-Shri.A.R. Mawthoh, IPS, Superintendent of Police, East Khasi Hills District, Shillong."
6. The petitioner after receipt of the copy of the enquiry report and also the impugned order dated 04.07.2012 filed the appeal against the impugned order dated 04.07.2012 to the appellate authority i.e. Deputy Page 6 of 34 Inspector General of Police (Eastern Range), Meghalaya, Shillong. The main grounds taken up in the said appeal are that:
(i) ever since the submission of written explanation by the petitioner (appellant), no further intimation or information about the proceedings of Departmental Proceedings was meted out to the appellant/writ petitioner and that the appellant/writ petitioner was also never asked to participate in the disciplinary proceedings, if any;
(ii) the disciplinary proceedings against the writ petitioner/ appellant was ex-parte, without even intimating the writ petitioner/appellant of its proceedings nor that the writ petitioner/appellant was ever informed to participate in the said proceedings;
(iii) the writ petitioner/appellant was deprived of his right to receive the vital documents mentioning the particulars of the so called vital documents;
(iv) the statements of the prosecution witnesses were not recorded in the presence of the writ petitioner/appellant;
(v) Ex-parte statements of the witnesses were taken to be gospel truth in arriving at the findings of guilt against the writ petitioner/appellant; and
(vi) the enquiry report submitted by the Enquiry Officer in the departmental proceedings No.12/2011 was never made available to the writ petitioner/appellant nor that the writ petitioner/appellant was never informed of its findings and without giving any opportunity of being heard to the writ petitioner/appellant, the disciplinary authority went to accept and agree the findings of the Enquiry Officer and passed the impugned order dated 04.07.2012.Page 7 of 34
However, in the memo of appeal, the petitioner did not mention the material facts for any sort of prejudice cause to him because of non-
furnishing of the copy of the enquiry report. It is an admitted fact of the petitioner that the enquiry report were furnished to him along with the impugned order dated 04.07.2012. Therefore, it appears that the case of the petitioner is that the impugned order dated 04.07.2012 was passed without furnishing the copy of the enquiry report and according to the petitioner, because of non-furnishing of the enquiry report before passing the impugned order dated 04.07.2012, not only the impugned order dated 04.07.2012 but also the whole disciplinary proceedings are vitiated.
7. The appellate authority i.e. the respondent No.5, Deputy Inspector General of Police (Eastern Range), Meghalaya, Shillong passed a reasoned order dated 14.05.2013 for dismissing the appeal (Annexure-VIII to the writ petition), which reads as follows:-
"OFFICE OF THE DEPUTY INSPECTOR GENERAL OF POLICE (EASTERN RANGE) MEGHALAYA ::: SHILLONG ORDER Perused the Appeal Petition submitted by ABC/471 Vikram D. Momin (dismissed), office of the Superintendent of Police, East Khasi Hills, Shillong and all relevant records thereon against the Order of Dismissal passed by Superintendent of Police, East Khasi Hills, Shillong in DP No. 12/2011 vide Memo No. RE/GEN/PT-I/2012/4898-4936, dt. 05.07.2012. That being aggrieved and dissatisfied with the aforesaid order, the Appellant preferred to appeal against the order of the Superintendent of Police to the undersigned being the Appellate Authority.
The grounds of appeal inter alia are:-
(i) That the Disciplinary Proceeding against the appellant was held exparte.Page 8 of 34
(ii) That the Appellant was never issued with any preliminary statement of the witnesses examined prior to the initiation of the DP No. 12/2011.
(iii) That the written explanation as submitted by the Appellant in reply to the Show Cause notice, dt.
17.12.2011 was never examined nor considered by the Enquiry Officer and also by the Disciplinary Authority.
(iv) That the Appellant was never afforded any opportunity to defend his case in the disciplinary proceeding held since the whole proceeding was conducted exparte.
(v) That the enquiry report submitted by the Enquiry Officer in the DP No. 12/2011 was never made available to the Appellant nor that the Appellant was informed of the findings.
(vi) That the Superintendent of Police, East Khasi Hills, Shillong went on to pass order for dismissal of the Appellant from service without event affording any opportunity of being heard against such proposed punishment to be inflicted upon the Appellant.
(vii) That the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charges imputed to the Appellant.
On the basis of the appeal made by the Appellant ABC/471 Vikram D.Momin the DP File with all connected papers was called from Superintendent of Police, East Khasi Hills, Shillong which was duly received in this Office on 25 th April 2013.
On perusal of the DP File with all relevant records, the following procedure has been duly taken by the Superintendent of Police, East Khasi Hills being the Disciplinary and Appointing Authority and by the Enquiry Officer.
a) That on the basis of the report submitted by ABSI D. Nongrum, IC District Armoury Kote, East Khasi Hills DEF, Shillong dt. 21.11.2011, a Show Cause Notice was issued vide Memo No. RE/GEN/PT-III/2011/911, dt. 25.11.2011 directing ABC/471 Vikram D. Momin, East Khasi Hills DEF, Police Reserve, Shillong to Page 9 of 34 submit his explanation within 15 (fifteen) days of receipt of the communication. He was given opportunity to inspect the document and if willing to write to the Disciplinary Authority within 10 (ten) days of received of the communication.
b) The explanation submitted by ABC/471 Vikram D. Momin was duly perused by the Disciplinary and Appointing Authority who found the explanation unsatisfactory and Smti Cherry Shadap, MPS, Dy. Superintendent of Police (City), East Khasi Hills, Shillong was appointed the Enquiry Officer and asked to submit the findings early. This has a reference to copy of DO No. 4866, dt. 23.12.2011.
c) From the record available in the DP File No. 12/2011, the enquiry was conducted in the presence of the Appellant ABC/471 Vikram D. Momin. The Appellant was all along present while enquiry is conducted and duly put his signature on the body of the statement of prosecution witnesses. The Appellant was given all opportunities to cross examine all the prosecution witnesses but declined to do so.
All together 5 (five) prosecution witnesses were examined in the presence of the delinquent.
d) From the records, it is evident that the Appellant has duly received the order passed by the Superintendent of Police and the finding reports of the EO in which he has appended his signature on the body of the Dismissal Order vide Memo No. RE/GEN/PT-
1/2012/4898-4936, dt. 05.07.2012.
The Appellant ABC/471 Vikram D. Momin was charged with gross negligence and dereliction of duty as well as indiscipline being a member of the discipline force. On the statement of allegation:-
(1) That on 16.11.2011 at about 12.30 PM SI K.P.Singh, I/C Cantonment BH seized a polythene bag lying abandoned at Vegetable Market, Bara Bazar containing one set of Police Uniform, One Pouch, 2 (two) nos of Magazine of Insas Rifle and 37 (thirty seven) rounds of 5.56 ammunitions. Later it has been ascertained that the said Ammunition, Pouch and Magazines were issued to the Appellant Page 10 of 34 ABC/471 Vikram D. Momin from the unit Armoury as noted in the record.
(2) It was also found that 3 (three) rounds of 5.56 ammunition were also missing from the lot issued to the Appellant ABC/471 Vikram D. Momin.
From the above facts as stated above, it can be deduced as follows:-
A. It was not a fact that the Departmental Proceeding was held exparte as stated by the Appellant. The Departmental Proceeding was conducted all along in the presence of the Appellant himself and duly signed by him on the statement of the prosecution witnesses and that he was given reasonable opportunity to cross examine the prosecution witnesses but declined to do so.
B. The Appellant while asking to give his explanation to the show cause notice has been given reasonable opportunity to ask for the documents in which the Departmental Proceeding is relied upon. However, the Appellant never availed this opportunity.
C. The explanation submitted by ABC/471 Vikram D. Momin to the show cause notice was duly perused by the Disciplinary and Appointing Authority who found the explanation unsatisfactory and appointed Smti. Cherry Shadap MPS, Dy. SP (City), East Khasi Hills, Shillong as Enquiry Officer. From the records in the DP File, it is evident that the Appellant has duly received the Dismissal Order by the Superintendent of Police alongwith the finding reports of the EO in which he has appended his signature on the body of the Dismissal Order which indicate acknowledgement of having received the same.
D. It is not mandatory on the part of the Disciplinary and Appointing Authority to issue a second show cause notice on the contemplating punishment especially when charges and allegations are of serious nature and proved beyond shadow of the doubt.Page 11 of 34
The charges against the Appellant based on the statement of allegations are very serious in nature. The Appellant in his reply to the show cause and subsequent deposition of his statement before the Enquiry Officer has not been able to justify that his action was not wrong and the allegations are not true. The Appellant instead of depositing the ammunitions and other accessories issued to him to the In- charge of Armoury Kote on completion of duty rather took the ammunitions home and reported sick. When he decided to return back the ammunitions instead of proceeding to Reserve Office went to Bara Bazar taking along in a polythene bag 37 (thirty seven) rounds of 5.56 mm ammunitions, 2 (two) nos magazines of Insas Rifle, 1 (one) ammunition pouch and his uniform as stated by him to consume liquor from Bara Bazar and after having consumed it, he did not know how the polythene bag containing the above item was lost. The conduct of the delinquent was very irresponsible without slightest concern of the consequences associated with it. Fortunate, the ammunitions were recovered by SI K.P. Singh, IC Cantonment BH otherwise the ammunition may be landed in the hands of the criminals and would have put the society at large in great danger. The action by the member of a discipline force cannot be condoned.
Applying my mind on this instant appeal and after going into detail of the materials on record and after having considered the gravity and seriousness of the charges based on the statement of allegation which has been proved beyond reasonable shadow of the doubt and the manner in which the appellant has conducted himself, I come to the conclusion that the Dismissal Order passed by the Superintendent of Police, East Khasi Hills cum Disciplinary and Appointing Authority in the Departmental Proceeding is hereby upheld and the Dismissal Order stands.
This disposes off the appeal petition submitted by ABC/471 Vikram D. Momin.
Sd/- (Shri A.Sunn, IPS) Dy. Inspector General of Police (ER) Meghalaya, Shillong".
8. Being aggrieved by the impugned order dated 04.07.2012 and the order of the appellate authority dated 14.05.2013, filed the present writ petition for quashing the same.
9. The respondents filed joint affidavit-in-opposition wherein, the respondents had stated very clearly that the disciplinary proceedings was Page 12 of 34 conducted in the presence of the petitioner by the Enquiry Officer by providing all the opportunities for cross-examination of the witnesses after reading out the statements of the witnesses whose statements were recorded in the presence of the petitioner. The contents of the statements of the prosecution witnesses (PWs) were explained to the petitioner for cross-
examination, but the petitioner declined to cross-examine.
10. The Court also called the File containing the disciplinary proceedings against the petitioner from the respondents for ascertaining as to whether the allegations made in the writ petition that the disciplinary proceedings against the petitioner was conducted without giving any opportunity to the petitioner to participate in the disciplinary proceedings and also all the witnesses (prosecution witnesses) were examined in the absence of the petitioner are correct or not?. On perusal of the disciplinary proceedings, it is clear that the petitioner had participated in the disciplinary proceedings and all the prosecution witnesses were examined in his presence and also that inspite of giving opportunity to him to cross-examine the prosecution witnesses, he declined to cross-examine.
11. This Court takes a serious view against the petitioner for coming to the Court with a twisted fact. The Apex Court in SP Chengalvaraya Naidu (Dead) by Lrs Vs Jagannath (dead) by LRs & Ors:
(1994) 1 SCC 1 held that non disclosure of relevant and material documents with a view to obtain advantage amount to fraud and one should come to the court with clean hands. Para 5 of the SCC in SP Chengalvaraya Naidu‟s case (Supra) read as follows:
"5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, Page 13 of 34 went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court- process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
12. The Apex Court in Dalip Singh Vs State of Uttar Pradesh & Ors: (2010) 2 SCC 114 held that materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final". Para 1- 10 and 16 of the SCC in Dalip Singh‟s case (Supra) read as follows:-
"1.For many centuries, Indian society cherished two basic values of life i.e., „Satya (truth) and „Ahimsa‟ (non-violence), Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-Page 14 of 34
shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
3. In Hari Narain v. Badri Das: AIR 1963 SC 1558, this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations:
(AIR p. 1558) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
4. In Welcome Hotel and others v. State of AP: (1983) 4 SCC 575 the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.
5. In G.Narayanaswamy Reddy and v. Govt of Karnataka : (1991) 3 SCC 261, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed: (SCC p.263, para 2) "........Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the Page 15 of 34 respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."
6. In S.P.Chengalvaraya Naidu v. Jagannath: (1994) 4 SCC 1, the Court held that where a preliminary decree was obtained by withholding an important document from the court, the party concerned deserves to be thrown out at any stage of the litigation.
7. In Prestige Lights Ltd. V. SBI: (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court‟s jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: (Prestige Lights Ltd case (2007) 8 SCC 449, SCC p.462, para 35) "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
8. In A.V. Papayya Sastry v. Government of A.P.: (2007) 4 SCC 221, the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.
Page 16 of 349. In Sunil Poddar v Union Bank of India : (2008) 2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct.
10. In K.D. Sharma v SAIL: (2008) 12 SCC 481, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G.Jayshree v. Bhagwandas S. Patel : (2009) 3 SCC 141.
** ** ** **
16. The legal representatives of Shri Praveen Singh jointly filed Civil Miscellaneous Writ Petition No. 22790/1990 and prayed for quashing of orders dated 27.12.1975, 8.7.1976, 7.8.1990 passed by the Prescribed Authority and the Appellate Authority respectively. They also prayed for issue of a direction to the Appellate Authority to remand the case to the Prescribed Authority for entertaining their objections. In paragraph 3 of the writ petition, the following statement was made:
"That the petitioner‟s late father, against whom the proceedings had been initiated under Section 10(2) of the Ceiling Act, filed application on 8.7.1976 supported by an affidavit stating therein clearly that he was seriously ill for about ten months as such he was not in a position to file objection, and as a matter of fact he did not have any knowledge of the date of the proceedings that were being conducted before the prescribed authority. True copy of the application dated 8.7.1976 of petitioner‟s late father is annexed herewith as Annexure
2. True copy of the affidavit filed in support of the application dated 8.7.1976 of the petitioner‟s father is annexed herewith as annexure 3."
(Emphasis added) Page 17 of 34
13. The Apex Court in Ritesh Tewari & Anr Vs State of Uttar Pradesh & Ors: (2010) 10 SCC 677 held that power under Article 226 of the constitution of India is discretionary and supervisory in nature; it is not issued merely because it is lawful to do so. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Paras 26, 27, 28, 29 and 30 of the SCC in Ritesh Tewari‟s case (Supra) read as follows:
"26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Champalal Binani Vs. CIT: (1971) 3 SCC 20; Chimajirao Kanhojirao Shrike & Anr. V. Oriental Fire and General Insurance Co. Ltd., (2000) 6 SCC 622; LIC v. Asha Goel : (2001) 2 SCC 160; Haryana Financial Corporation v. Jagdamba Oil Mills (2002) 3 SCC 496; Chandra Singh v. State of Rajasthan : (2003) 6 SCC 545; and Punjab Roadways, v. Punja Sahib Bus and Transport :
(2010) 5 SCC 235).
27. Where a party‟s claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-à-vis the others unjustly. (vide: Sikkim Subba Associates v. State of Sikkim (2001) 5 SCC 629)
28. In A P State Financial Corporation v. GAR Re-Rolling Mills : (1994) 2 SCC 647, this Court observed:- (SCC p. 662, para 18) Page 18 of 34 "Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law."
29. In M.P. Mittal v. State of Haryana : (1984) 4 SCC 371, this Court held: (SCC p.374, para 5) "5. ......it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetrate an unjust gain."
30. This Court in State of Maharashtra v. Prabhu, (1994) 2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows: (SCC p.486, para 5) "It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
14. The Apex Court in Abhyudya Sanstha Vs Union of India:
(2011) 6 SCC 145 held that petitioner must come with clean hands for obtaining interim order; and for the injury suffered by the students due to misrepresentation of fact, compensation of Rs. 1 lakh had been awarded by the Apex Court to each of the students.
15. The Apex Court in A Shanmugam Vs Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President & Ors: (2012) 6 SCC 430 held that every litigant is expected to state the truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. It is imperative that the Judges must have complete grip of the facts before they start dealing with the case. Para 23, 24, 26, 27, 28 and 29 of the SCC in A Shanmugam‟s case (Supra) read as follows:
Page 19 of 34"23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or Judges both before issuing the ad interim injunction and/or framing of issues.
24. The entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of the justice delivery system. This Court in Dalip Singh V State of U.P: (2010) 2 SCC 114 observed that: (SCC p.116, para 1):
"1. Truth constituted an integral part of the justice delivery system which was in vogue in the pre-independence era and people used to feel proud to tell the truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system."
26. As stated in the preceding paragraphs, the pleadings are the foundation of litigation but experience reveals that sufficient attention is not paid to the pleadings and documents by the judicial officers before dealing with the case. It is the bounden duty and obligation of the parties to investigate and satisfy themselves as to the correctness and authenticity of the matter pleaded.
27. The pleadings must set forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the court must carefully look into it while deciding a case and insist that those who approach the court must approach it with clean hands.
28. It was imperative that the Judges must have complete grip of the facts before they start dealing with the case. That would avoid unnecessary delay in disposal of the cases.
29. Ensuring discovery and production of documents and a proper admission/denial is imperative for deciding civil cases in a proper perspective. In relevant cases, the courts should encourage interrogatories to be administered."
16. It is fairly settled law that the High Court under Article 226 or the Supreme Court under Article 32 would not interfere with the findings recorded in the Departmental Enquiry by the Disciplinary Authority or by the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. The power of judicial review available to the High Court under the constitution takes in its Page 20 of 34 stride the domestic enquiry as well and it can interfere with the conclusion reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority. The Apex Court in Kuldeep Singh v. The Commissioner of Police & Ors: (1999) 2 SCC 10: AIR 1999 SC 677 held that:
"8. The findings, recorded in a domestic enquiry, can be characterized as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of Andhra Pradesh v. Sree Rama Rao, (1964) 2 Lab LJ 150: AIR 1963 SC 1723 : 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India v. Prakash Chand Jain, (1969) 2 Lab LJ 377 (SC) : AIR 1969 SC 983 and Bharat Iron Works v. Bhagubhai Balubhai Patel, 1976 Lab IC 4 (SC) : AIR 1976 SC 98 : (1976) 2 SCR 280 : (1976) 1 SCC 518. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour), AIR 1984 SC 1805 : (1985) 1 SCR 866 : (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial Tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
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."
17. The judicial review of the findings of the Enquiry Officer is seldom invoked and normally there shall be judicial review of the findings of the Enquiry Officer when the findings is based on no evidence or one that no reasonable person would arrive at and it is fairly settled law that there cannot be judicial review of the findings of the Enquiry Officer on the ground that Page 21 of 34 some relevant facts had not been considered or that certain inadmissible material has been taken into consideration inasmuch as that the findings cannot be said to be perverse. The Apex Court in General Manager (P) Punjab & Sind Bank & Ors vs. Daya Singh reported in 2010 11 SCC 233 held that:
"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 findings 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 1994 Supp (3) SCC 665: 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 Arulvelu v. State (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288. The decision of the High Court cannot therefore be sustained.
25. As held in T.N.C.S. Corpn. Ltd. V. K. Meerabai (2006) 2 SCC 255 : 2006 SCC (L&S) 265 the scope of judicial review for the High Court in departmental disciplinary matters is limited. The observations of this Court in Bank of India v. Degala Suryanarayana(1999) 5 SCC 762 : 1999 SCC (L&S) 1036 are quite instructive: (SCC pp. 768-69, para 11).
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the Page 22 of 34 departmental authority, the same has to be sustained. In Union of India v. H.C. Goel AIR 1964 SC 364: (1964) 4 SCR 718 the Constitution Bench has held: (AIR p. 370, para 23) "23......the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.‟"
18. The Apex Court in State Bank of India & Ors vs. Ramesh Dinkar Punde reported in (2006) 7 SCC 212 held that:
"9. It is impermissible for the High Court to re-appreciate the evidence which had been considered by the Inquiry Officer, a disciplinary authority and the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.
16. In Union of India (appellant) v. Parma Nanda: (1989) 2 SCC 177: 1989 SCC (L&S) 303: (1989) 10 ATC 30, it is held at SCC p.189 para 27 as under:
"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or Page 23 of 34 the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
17. In Union Bank of India (Appellant) v. Vishwa Mohan: (1998) 4 SCC 310: 1998 SCC (L&S) 1129, this Court held at SCC p.315 para 12 as under:
"12. After hearing the rival contentions, we are of the firm view that all the four charge sheets which were inquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority's report/findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non-furnishing of the inquiry report/findings to him."
18. In Chairman and MD, United Commercial Bank v. P.C. Kakkar: (2003) 4 SCC 364: 2003 SCC (L&S) 468, this Court held at SCC pp.376-77 para 14 as under:
"14. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik: (1996) 9 SCC 69:1996 SCC (L&S)1194, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court."
19. In Regional Manager, U.P. SRTC, v. Hoti Lal: (2003) 3 SCC 605: 2003 SCC (L&S) 363, it was pointed out as under: (SCC p.614, para 10) Page 24 of 34 "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trustworthiness is a must and unexceptionable."
20. In Cholan Roadways Ltd. v. G. Thirugnanasambandam:
(2005) 3 SCC 241: 2005 SCC (L&S) 395, this Court at SCC p.247 para 15 held:
"It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic inquiry."
19. It is fairly settled law that non-supply of documents would not ipso facto vitiate the order of punishment in the absence of prejudice to the delinquent. The Apex Court in Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Sinha: (2010) 3 SCC 556 held that:
"32. At the time when the plea was raised before the High Court that the impugned orders are vitiated on account of the non- supply of enquiry report, it would have been appropriate for the High Court to examine the averments made in the writ petition. A perusal of the writ petition would show that the petitioner has failed to lay any foundation to establish that any prejudice has been caused by the non-supply of the enquiry report.
34. The ECIL matter was placed in ECIL v. B. Karunakar:
(1992) 1 SCC 709: 1992 SCC (L&S) 361: (1992) 19 ATC 652 before the Constitution Bench as the attention of the Court was invited to a three-Judge Bench decision of this Court in Kailash Chandra Asthana v. State of U.P.: (1988) 3 SCC 600: 1988 SCC (L&S) 869 wherein it was held that non-supply of the report would not ipso facto vitiate the order of punishment in the absence of prejudice to the delinquent.
20. The Apex Court in Burdwan Central Cooperative Bank Limited v. Asim Chattarcharjee & Ors: (2012) 2 SCC 641 held that:
"18. The decision of this Court in S. Govinda Menon's case:
AIR 1967 SC 1274: (1967) 2 SCR 566 cited by Mr. Ray, also has a direct bearing on the facts of this case, where, although Page 25 of 34 the Respondent No.1 was not under the administrative control of the Appellant-Bank, prior to his service with the Bank, his previous conduct was a blot on his integrity and devotion to duty as a member of the service. Since no prejudice had been caused to the Respondent No.1 by the non- supply of the Enquiry Officer's report or the second show-cause notice under Article 311(2) of the Constitution, the Respondent No.1 had little scope to contend that the principles of natural justice had been violated which had vitiated the proceedings.
19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar's case: (1993) 4 SCC 727: 1993 SCC (L&S) 1184: (1993) 25 ATC 704 despite holding that non-
supply of a copy of the report of the Inquiry Officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the inquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the concerned employee to resume his duties and to get all consequential benefits.
20. It was also observed in B. Karunakar: (1993) 4 SCC 727:
1993 SCC (L&S) 1184: (1993) 25 ATC 704 that in the event the Inquiry Officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non- supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the inquiry report had not been supplied to the employee."
21. After careful perusal of the writ petition as well as the memo of appeal, it is clear that in nowhere of the writ petition and the memo of appeal mentioned as to what prejudice had been caused to the petitioner on account of non-furnishing of the enquiry report in filing the appeal against the impugned order dated 04.07.2012. It is also very clear from the impugned order dated 04.07.2012, the copy of the enquiry report was made available to the petitioner so as to enable him to file the effective appeal. Accordingly, this Court is of the considered view that mere non-furnishing of the enquiry report before passing the impugned order dated 04.07.2012 will not vitiate the disciplinary proceedings or/the impugned order dated 04.07.2012 and the Page 26 of 34 order of the appellate authority dated 14.05.2013. Ordinarily the High Court should not interfere with the quantum of punishment imposed by the disciplinary authority. However, the High Court interferes with the punishment imposed upon the delinquent if impermissible in law or wholly disproportionate to the misconduct found to have been committed by the delinquent officer. The Apex Court in Ramesh Chandra Sharma v. Punjab National Bank & Anr: (2007) 9 SCC 15 held that:
"29. Moreover, it now a trite law that ordinarily the High Court should not interfere with the quantum of punishment imposed by the Disciplinary Authority. (See U.P.S.R.T.C. v. Ram Kishan Arora: (2007) 4 SCC 627: (2007) 6 Scale 721). It has not been found by the High Court that the punishment imposed upon the appellant was impermissible in law or wholly disproportionate to the misconduct found to have been committed by the delinquent officer.
30. Our attention has been drawn to a decision of this Court in S.P. Badrinath vs. Govt. of A.P : (2003) 8 SCC 1: 2003 SCC (L&S)1196. This decision has no application in this case, as we have noticed in the present case that the acts of misconduct proved against the appellant were of grave nature.
31. The High Court itself has noticed a large number of decisions and formed the opinion that the charges levelled against the delinquent officer were of grave nature. A major punishment may be inflicted even where no pecuniary loss was caused to the Bank by reason of the act of the delinquent officer. In support of the aforementioned proposition of law, the High Court opined:
"The charges leveled against the petitioner, which were found proved upon enquiry, are quite serious in nature. The petitioner had engaged himself in reckless lending causing huge financial loss to the Bank to the extent of Rs. 1,14,87,164.76. It also shows that the petitioner had disbursed loan through middlemen and demanded and received illegal gratification from a borrower. We are of the considered opinion that in such cases, the officers of the Bank should not be permitted to continue in service at all.
Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity. A necessary implication which must be engrafted on the contract of service is that the servant must undertake to serve his master with good Page 27 of 34 faith and fidelity. In a case of loss of confidence, reinstatement cannot be directed. Granting such an employee the relief of reinstatement would be "an act of misplaced sympathy which can find no foundation in law or in equity.‟ [Vide Air India Corporation Vs. V.A. Ravellow: (1972) 1 SCC 814: AIR 1972 SC 1343; Binny Ltd. Vs. Workmen: (1974) 3 SCC 152: 1973 SCC (L&S) 444: AIR 1973 SC 1403; Kamal Kishore Lakshman Vs. Pan American World Airways: (1987) 1 SCC 146: 1987 SCC (L&S) 25: AIR 1987 SC 229; Francis Klein & Co.(P) Ltd. Vs. Workmen: (1972) 4 SCC 569: AIR 1971 SC 2414; Regional Manager, Rajasthan SRTC Vs. Sohan Lal: (2004) 8 SCC 218: 2004 SCC (L&S)1078 and Bharat Heavy Electricals Ltd. Vs. M. Chandrashekhar Reddy: (2005) 2 SCC 481: 2005 SCC (L&S) 282: 2005 AIR SCW 1232].
In Kanhaiyalal Agrawal & Ors. Vs. Factory Manager, Gwalior Sugar Co. Ltd.: (2001) 9 SCC 609: 2002 SCC (L&S) 257, the Hon'ble Supreme Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (i) the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved."
Reliance in this regard has also been placed by the High Court on the decision of State Bank of India v. Bela Bagchi: (2005) 7 SCC 435: 2005 SCC (L&S) 940: AIR 2005 SC 3272."
22. Lord Diplock in Counsil of Civil Service Unions -Vrs-
Minister for Civil Service (called CCSU case) summarize the principle of judicial review administrative action as based upon one or the other of the following, viz. legality, procedural, irregularity, and irrationality. He, however, opined that "proportionality" was as "future possibility".
According to my opinion (this Court), Lord Diplock for the first time opened the window of "proportionality" in the judicial review of administrative action.
Now, the Apex Court in a catena of cases held that "proportionality" is one of Page 28 of 34 the basis for judicial review of the quantum of punishment imposed on the delinquent/employee by the disciplinary authority. While exercising the power of judicial review of the quantum of punishment basing on "proportionality"
the court is applying Wednesbury Principle as secondary reviewing authority and also the court will not apply "proportionality" as a primary reviewing court. Therefore, the court could exercise right of secondary review based only on Wednesbury Principle. Lord Bridge explained the primary and secondary review in Brind Case [(1991) 1 AC 969: (1991) 1 All ER 720:
(1991) 2 WLR 588 (HL) as follows:
"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonable make the primary judgment."
The Constitution Bench E.P. Royappa -vrs- State of Tamil Nadu, (1974) 4 SCC 3: 1974 SCC (L&S) 165 held that where a punishments in disciplinary cases are challenged, question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury Test. The Apex Court in Union of India - vrs - G.Ganayutham: (1997) SCC (L&S) 1806 had summed up position relating to "proportionality" in paras - 31 and 32 which read as follows:
"31.The current position of proportionality in administrative law in England and India can be summarized as follows:
(1)To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was done on which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether the Page 29 of 34 action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go to the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator‟s decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374 principles.
(3) (a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4) (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4) (b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of „proportionality‟ and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19,21, etc. are involved and not for Article 14.
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of „proportionality‟. There is no contention that the punishment imposed is illegal or vitiated Page 30 of 34 by procedural impropriety. As to „irrationality‟, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in „outrageous‟ defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain „Ranjit Thakur‟."
23. The Apex court in Chairman and Managing Director, United Commercial Bank & Ors - vrs - P.C.Kakkar: (2003) 4 SCC 364 held that unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed. Para-
12 of the judgment in Chairman and Managing Director, United Commercial Bank & Ors -vrs - P.C.Kakkar: (2003) 4 SCC 364 (Supra) is quoted as under:
"12. To put it differently, unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed."
24. The Apex Court in State of Rajasthan & Anr. Vs. Mohd, Ayub Naz: (2006) 1 SCC reiterated that the scope of judicial review of the quantum of punishment is circumscribed and also that the role of administrative authority is primary and that of court is secondary, to be exercised only on well settled Wednesbury principles. Further the Apex Court in para 10 of the Page 31 of 34 SCC in State of Rajasthan & Anr. Vs. Mohd. Ayub Naz : (2006) 1 SCC 589 held that:
10. This Court in Om Kumar v. Union of India: (2001) 2 SCC 386 : 2001 SCC (L&S) 1039 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor has any irrelevant fact been taken into account nor any illegality committed by the authority nor was the punishment awarded shockingly disproportionate. The punishment was awarded in the instant case after considering all the relevant materials, and, therefore, in our view, interference by the by the High Court on reduction of punishment of removal was not called for."
25. The Apex Court in Canara Bank v. V.K. Awasthy: (2005) 6 SCC 321 held that the interference with the quantum of punishment cannot be a routine matter. Paras 21, 22 and 23 of the SCC in Canara Bank‟s case (Supra) read as follows:
"21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the departmental proceedings reveal that several acts of misconduct unbecoming of a bank official were committed by the respondent.
22. It is to be noted that the detailed charge-sheets were served on the participated in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the disciplinary authority. The proved charges clearly established that the respondent employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank. In the appeal before the prescribed Appellate Authority, the findings of the inquiry officer were challenged. The Appellate Authority after analyzing the materials on record found no substance in the appeal.
23. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of this court. Such interference cannot be a routine matter."Page 32 of 34
26. In the present case, this Court keeping in view of the decisions of the Apex Court in the aforesaid cases that the High Court interfered with the punishment imposed upon the delinquent when it is wholly disproportionate to the misconduct found to have been committed by the delinquent or the punishment imposed by the disciplinary authority shocks the conscience of the Court, this Court had given anxious consideration as to whether the major penalty of dismissal from service imposed to the petitioner for the misconduct is wholly disproportionate or not?. The misconduct committed by the petitioner in the present case is the failure to deposit the arm and ammunitions issued to him in time in compliance with the prescribed procedures to the Kote In-Charge and for this misconduct, the petitioner in his show cause statement dated 17.12.2011 had tendered an apology and also made a promise that he would not repeat the same in future. In this peculiar circumstances, this Court is of the considered view that the major penalty of dismissal from service imposed to the petitioner under the impugned order dated 04.07.2012 and the order of the appellate authority dated 14.05.2013 are wholly disproportionate and shock the conscience of this Court. Accordingly, the impugned order dated 04.07.2012 and the order of the appellate authority dated 14.05.2013 are hereby quashed and set aside and the respondents are directed to impose any penalty other than dismissal from service to the petitioner. It is made clear that there shall be no arrear of pay and allowances to the petitioner in the given case. The petitioner shall be reinstated in service so as to enable the respondents to impose any penalty deems fit and appropriate other than dismissal from service to the petitioner. The reinstatement order should be issued to the petitioner within a period of two months from the date of receipt of a certified copy of this judgment and order.
Page 33 of 3427. Writ petition is allowed to the extent indicated above.
JUDGE Lam Page 34 of 34