Gujarat High Court
P Nainesh Ambarambhai vs Commandant on 24 April, 2024
NEUTRAL CITATION
C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1804 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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P NAINESH AMBARAMBHAI
Versus
COMMANDANT & ORS.
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Appearance:
MR YOGIN A BHAMBHANI(6444) for the Petitioner(s) No. 1
MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 24/04/2024
ORAL JUDGMENT
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1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India with the following reliefs.
A. Your lordships be pleased to admit and allow the present Petition.
1. Your lordship may be pleased to issue appropriate writ, order or direction quashing and setting aside the vide dated 18.12.2013 and order passed by the Commandant, C.R.P.F. dated 23.03.2011 as well as order passed by the Deputy Inspector General of Police, C.r.P.F dated 12.07.2011 and order dated 27.02.2012 passed by the Inspector General of Police, West Zone, C.R.P.F., New Mumbai and the Petitioner may be allowed to join his duty forthwith. By setting aside the order of dismissal.
Or in the alternative Your lordship may be pleased to direct the respondents authorities that the case of the Petitioner may be considered for the less grave punishment and same minor punishment may be awarded on the ground of parity and be taken back in service.
B. The Petitioner may be granted the monetary benefits for his service for which otherwise he is entitled.
C. Pending admission and final disposal of the petition, your Lordships may be pleased to stay implementation, execution and the operation of the said judgment and order passed by the Commandant, C.R.P.F. dated 23.03.2011 as well as order passed by the Deputy Inspector General of Police, C.R.P.F. dated 12.07.2011 and order dated 27.02.2012 passed by the Inspector General of Police, West Zone, C.R.P.F., New Mumbai and/or be pleased to grant the status quo ante and the Petitioner may be allowed to join service on such conditions as deemed fit.
D. Your Lordship be pleased to grant in other and further relief in the interest of justice.
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2. It is the case of the petitioner that the petitioner was service as Sipahi bearing No.015121261 and posted at Bandaval, Udaipur (South Tripura) as a constable general duty. That while the petitioner was on duty, he was found for the alleged misconduct and for that respondents have issued charge-sheet on 15.12.2010. After considering the submissions made on behalf of the petitioner and the relevant documents, the petitioner came to be dismissed from the services on 23.03.2011 by the Disciplinary Authority.
2.1 Being aggrieved and dissatisfied with the order, the petitioner had preferred departmental appeal before the Appellate Authority i.e. Director General, C.R.P.F., which came to be dismissed vide order dated 18.12.2013.
2.2 The petitioner preferred the present petition challenging the said orders passed by the Disciplinary Authority and confirmed by the Appellate Authority.
3. Heard Mr.Yogin Bhambhani, learned counsel appearing for Page 3 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined the petitioner and Mrs.Krisha Rawal, learned counsel appearing for the respondents.
4. Mr.Yogin Bhambhani, learned counsel appearing for the petitioner has submitted that the impugned order of punishment is disproportionate to the charge levelled against the petitioner.
He has submitted that the petitioner who is serving as constable general duty in C.R.P.F. and from the date of joining his service, there is no other disciplinary inquiry against the petitioner or no any show-cause notice was issued against him and considering his career, the impugned order of punishment is very harsh. He has submitted that the both the authorities have not considered the submissions made on behalf of the petitioner and without considering the documentary evidence, without application of mind, the impugned order came to be passed. He has submitted that the petition be allowed.
5. Per contra, Mrs.Krishna Rawal, learned counsel appearing for the respondents has opposed the petition and the charge against the petitioner is serious in nature considering the fact that he was serving in arm forced and being a disciplinary force, the petitioner has committed breach and, therefore, no leniency Page 4 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined be shown in favour of the petitioner. She has submitted that the petition has been filed after almost two years from the date of the order passed by the Appellate Authority. Mrs.Rawal, learned counsel has referred to and relied upon the affidavit-in- reply filed on behalf of the respondents. The relevant paragraphs of affidavit-in-reply are as under:-
"6.1 The petitioner along with other two were served with a memorandum of charges dated 16.12.2010 under the provisions of section 11(i) of the CRPF Act, 1949 and the charges were framed as per Article 1, II, II and IV separately provided during the departmental inquiry held on 3.1.2011.
6.2 The regular leave is sanctioned to all as and when they applied for the same. It is further stated that the witnesses to the inquiry proceedings have confirmed the damage caused to the government properties as well as indiscipline in the Coy Location at Tripura State.
6.3 It is further submitted that it has been clearly proved in the departmental inquiry and from the statements of the prosecution witnesses of Assistant Commandant and HC/GD Rampratap Singh (CHM) that these personnel created tense situation and provocation. All these personnel committed serious misconduct more particularly by the petitioner and others who are members of disciplined force during the active duty with Arms in disturbed area of Tripura State.
6.4 It is further submitted that charges were framed against the petitioner on the bases of court inquiry and there is no provision to provide copy of the report of the court inquiry to the delinquent. However, the delinquent never asked for any copy of the departmental inquiry.
6.5 It is further submitted that as per medical report and statements of Dr. D. S. Mohan, it is abundantly proved that the petitioner had consumed liquor during active- duty hours which is serious misconduct in the discipline force.
Page 5 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 6.6 It is further submitted that all the charges levelled against the petitioner have been proved in the departmental inquiry. It is further submitted that the petitioner had used unparliamentary language and manhandled with OC Coy which is also a grave offending act committed by the petitioner. It is further submitted that while OC Coy was in talks with these personnel on the day of incident, suddenly electricity of the camp was cut down and whole camp was in plunged into darkness. The petitioner and others took the disadvantage of the darkness and damaged the residence of Coy Commander as well as government properties and that too of a senior officer. It is further stated that on the bases of the findings of the Court of Inquiry, CT/GD Harpal Singh dealt in orderly room and awarded 14 days confinement to line with forfeiture of pay and allowances and also one hour pack drill in the morning and evening by the Commandant 37 BN according to the offence committed by the petitioner.
6.7 It is further submitted that the departmental inquiry was conducted in fair and just manner and according to the prescribed procedure and rules. While conducting the departmental inquiry, the principle of natural justice was kept in mind and was given the reasonable opportunity to cross examine the witnesses and were given further opportunity to submit the defense. After giving the sufficient opportunities, the Appellate and the Revisioning authorities have passed the orders. Even, the mercy petition as per direction of this Hon'ble court is also heard again after giving opportunity of being heard by the DG, CRPF (Ministry of Home Affairs) and has upheld the decision of the Appellate and the Revisional Authorities.
7. It is further submitted that the disciplinary authority has imposed the penalty of dismissal from the service since, the charges against the petitioner have been proved during the inquiry beyond reasonable doubt. It is further stated that the petitioner has committed such a misconduct which can not be pardoned.
8. It is further submitted that the petitioner and other delinquents have committed serious misconduct by way of gross insubordination, Intoxication as well as damaged to the government properties along with highly insurgent, infested area of Tripura. The petitioner has committed serious offence, which cannot be expected from a disciplinary force like CRPF. Under the circumstances, the Page 6 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined charges levelled against the petitioner have been proved beyond the doubt and the offence so committed by the petitioner is unpardonable.
9. It is further submitted that considering the gravity of the misconduct of the petitioner and the charges levelled against him have been completely proved and the decision of dismissal from the service (Major Penalty) was taken by the Disciplinary Authority vide order dated 23.3.2011 which was confirmed by the Appellate authority vide order dated 12.7.2011 and further confirmed by the Revisioning authority on 22.2.2012. Even, the revision petition has been dismissed by order dated 19.11.2012 (upon remand now 18.12.2013).
10. The Apex court has held in number of cases that power of judicial review in the matters of disciplinary inquiries exercised by the departmental/appellate authorities discharged by constitutional courts under article 226 or 136 of the constitution is well circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of case on merits as an Appellate authority.
5.1 Mrs.Rawal, learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Dalbir Singh reported in (2021) 11 SCC 321 and emphasized upon the fact that so far as the interference is concerned, while exercising the jurisdiction under Article 226, the judicial review of the decision taken by the Disciplinary Authority and confirmed by the Appellate Authority, this Court has very limited scope to interfere and, therefore, this Court may not entertain the present petition. She has submitted that the Page 7 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined petition being meritless deserves to be dismissed.
6. The issue involved in the present petition is that whether the punishment imposed by the respondent - authority is disproportionate or not and whether the Court can interfere in the order of punishment only on the ground of quantum of punishment imposed by the Disciplinary Authority while exercising the jurisdiction under Article 226 of the Constitution of India or not.
7. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.
8. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-
"29. I may quote the observations of the Division Bench as under:-
The doctrine of proportionality and Wednesbury rule evolved in England in Council of Civil Services Union Vs. Minister for Civil Page 8 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Services (1983) 1 AC 768 and Associated Provincial Picture Houses Limited Vs. Wednesbury Corporation - 1948 2 All ER 680 have been applied by the Courts in India in various decisions. In Union of India Vs. C.G. Ganayutham - AIR 1997 SC 3387, the Supreme Court considered the ambit and scope of the doctrine of proportionality and Wednesbury rule in the light of various judicial pronouncements and laid down the following propositions: "
(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 one 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 irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to 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 principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement 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 judgement 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 are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Page 9 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Wednesbury the 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."
In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-
"It is a 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 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 the 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 in so far 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.
Further, it is a 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 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 Page 10 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined decision was arrived at. Judicial review, is directed not against the decision, but is confined to the examination of the decision-making process.
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 judgement for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:
"28. By 'proportionality' we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties, or interests of persons keeping in mind the purpose which they were intended to serve. The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality."
"29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were Page 11 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 'necessary' - within Arts.8 to 11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art.14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp.677-866)."
"66. It is clear from the above discussion that in India where administrative action is challenged under Art.14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority."
"67. But where, an administrative action is challenged as 'arbitrary' under Art. 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p. 111 :
(AIR 1991 SC 1153 at . 1165), Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the Administrator under Art. 14 in the context of Administrative Law has to be judged from the stand point of Wednesbury rules. In Tata Cellular V. Union of India (1994) 6 SCC 651 at Pp. 679- 680: (1994 AIR SCW 3344 and at Pp.3369-70In Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:: AIR 1996 SC 11); Indian Express Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691:(AIR 1986 SC 515 at Pp.542- 43): Supreme Court Employees' Welfare Association V. Union of India (1989) 4 SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC 324 at p.358) and Page 12 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined U.P. Financial Corporation V. GEM CAP (India) Pvt.Ltd. (1993) 2 SCC 299, at p. 307: (1993 SC 1435 at p.1439), while judging whether the administrative action is 'arbitrary' under Art.14 (i.e.otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always."
"71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Art.14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art.14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. Only in rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment."
In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:
"The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go in to the decision-making process while considering whether the punishment is proportionate or disproportionate. 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, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331, the Page 13 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed:
"Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/ establishment in which the delinquent person concerned works."
30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.
31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."
9. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-
"17. It is now well settled by a plethora of judgments of the Supreme Court that in exercise of its powers under Articles 226 and Page 14 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 227 of the Constitution of India should not venture into the re- appreciation of evidence or interfere with the conclusion arrived at by the disciplinary authority in the inquiry proceedings, if the same are conducted in accordance with law or go into the reliability / adequacy of evidence, or interfere, if there is some legal evidence on which the findings are based, or correct error of fact however grave it may be, or go into the proportionality of punishment unless it shocks the conscience.
18. It is equally well settled that the High Courts in exercise of its powers under Articles 226 and 227 can only consider whether the inquiry held by the competent authority was in accordance with the procedure established by law, and the principles of natural justice,whether irrelevant or extraneous consideration and/or exclusion of admissible or material evidence or admission of inadmissible evidence being influenced the decision rendering it vulnerable.
21. In a very recent pronouncement in the case of Union of India and others v. P. Gunasekaran [2015(2) SCC 610], the Supreme Court in details has explained the position of law so far as the scope of interference in the matter relating to the disciplinary proceedings is concerned. I may quote the observations made by the Supreme Court from paras 12 to 20 as under:
"12. Despite the wellsettled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a). the enquiry is held by a competent authority;
(b). the enquiry is held according to the procedure prescribed in that behalf;
(c). there is violation of the principles of natural justice in conducting the proceedings;
(d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;Page 15 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024
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(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i). the finding of fact is based on no evidence.
13 Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). reappreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1, many of the above principles have been discussed and it has been concluded thus:
"7. .....The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, Page 16 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 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. The High Court may undoubtedly 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, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be 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 of the Constitution."
15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 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). 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 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 Page 17 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 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 (AIR 1969 SC 966) said that the High Court does not interfere with 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 shutdown 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 Page 18 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined 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 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).
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."
16 These principles have been succinctly summedup by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:
"4. ...... 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 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, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic Page 19 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined tribunal, cannot be held good. ....."
17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.
18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:
"Article was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri P. Gunasekaran, provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. ...."
19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India. 20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
10. It is also worthwhile to refer to the decisions of the Hon'ble Page 20 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined Supreme Court in the case of Union Of India Versus P.Gunasekaran reported in (2015) 2 SCC 610 and in the case of State of Punjab and others Vs. Jaswant Singh reported in 2013 (3) Indian Service Law Journal 242.
11. The Hon'ble Supreme Court has considered the fact that the High Court, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, has very limited scope to interfere with the findings recorded by the Inquiry Officer and confirmed by the Disciplinary Authority.
12. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasized that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate Page 21 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.
13. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant facts including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service.
14. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be Page 22 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024 NEUTRAL CITATION C/SCA/1804/2015 JUDGMENT DATED: 24/04/2024 undefined dismissed.
15. For the foregoing reasons, this petition fails and is hereby dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 23 of 23 Downloaded on : Fri Apr 26 21:23:46 IST 2024