Karnataka High Court
Ramesh Balappa Pammar vs The Karnataka Power Transmission on 30 January, 2023
WP NO.106754 OF 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETTION NO.106754 OF 2015 (S)
Between:
SRI RAMESH BALAPPA PAMMAR
S/O SRI BALAPPA PAMMAR
AGED ABOUT 43 YEARS
WORKING AS JUNIOR ENGINEER (ELECTRICAL) INCHARGE
33/11 KV STATION, CHULAKI
HUBLI ELECTRICITY SUPPLY CO. LTD.
SAUNDATTI TALUK, BELAGAVI DISTRICT
...PETITIONER
(BY SRI VIJAYAKUMAR, ADVOCATE)
And:
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
REP BY ITS MANAGING DIRECTOR
KAVERI BHAVAN
BANGALORE - 560009
2. THE DIRECTOR (ADMN. & HR)
THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMIOTED
KAVERI BHAVAN
BENGALURU 560V009
3. THE SUPERINTENDING ENGINEER
OFFICE AND MAINTENANCE CIRCLE
HUBLI ELECTRICITY SUPPLY CO. LTD.
BELAGAVI DISTRICT, BELAGAVI
2
WP NO.106754 OF 2015
4. THE EXECUTIVE ENGINEER (ELECTRICAL)
HUBLI ELECTRICITY SUPPLY CO. LTD.
OFFICE AND MAINTENANCE DIVISIOIN
BELAGAVI
BELAGAVI DISTRICT
5. THE REGISTRAR
HON'BLE KARNATAKA LOKAYUKTA
AMBEDKAR VEEDHI
BANGALORE - 560001
...RESPONDENTS
(BY SRI B.S. KAMATE, ADVOCATE FOR R1 AND R2;
SRI SHIVARAJ P. MUDHOL, ADVOCATE FOR R3 AND R4;
SRI ANIL KALE, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA; PRAYING TO SET ASIDE
THE ORDER DATED 23.06.2015 PASSED BY THE RESPONDENT
NO.2 PROVIDE AT ANNEUXRE-F; AND ETC.
IN THIS WRIT PETITION, ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has filed this writ petition assailing Order dated 23rd June, 2015 passed by the respondent No.2-Corporation (Annexure-F), by which the petitioner has been compulsorily retired from service.
3WP NO.106754 OF 2015
2. The relevant facts for adjudication of this writ petition are that, petitioner was appointed as Mazdoor in 1998 and thereafter, petitioner got promotion in the respondent-
Corporation and while working as Junior Engineer (in charge) in the 33/11 KV Station, Hubli Electricity Supply Company Ltd, Chulaki, Saundatti Taluk, Belagum District, one Sri Bhimappa Gangappa Karadigudda, lodge complaint against the petitioner before the Karnataka Lokayukta Police alleging that the petitioner has made a demand for illegal gratification for installing a new Transformer in the land belonging to one Sri Kannanavar of Chinchakandi village. The Lokayukta Police conducted trap proceedings against the petitioner and another employee on 16th June, 2011 and initiated criminal proceedings against the petitioner for the offences punishable under Sections 7 and 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 read with Section 34 of the Indian Penal Code. First Information Report was registered on 16th June, 2011 against the petitioner and the Investigating Officer filed Charge Sheet in Special Case No.50 of 2012 on the file of the IV Additional District and Sessions Judge and Special Judge (PCA), Belagavi. The 4 WP NO.106754 OF 2015 petitioner was acquitted in the said proceedings as per the order dated 22nd June 2015 (Annexure-A). It is averred in the writ petition that, simultaneously, on the recommendation made by the Registrar, Karnataka Lokayuta, Departmental Enquiry was initiated against the petitioner under Regulation 14-A of the Karnataka Electricity Board (Classification, Disciplinary, Control and Appeal) Regulations, 1987. The respondent No.5 entrusted the matter to the Additional Registrar (Enquiries-V), Karnataka Lokayukta to conduct the Departmental Enquiry against the petitioner. Articles of Charges were framed against the petitioner and the petitioner filed reply denying the charges made against him. The Enquiry Officer, after conducting Departmental Enquiry, filed report to the respondent No.5 as per Annexure-B to the writ petition holding that the charges levelled against the petitioner are proved and thereby recommended for imposing major penalty of compulsory retirement against the petitioner and exonerated the charges against the Delinquent Government Official-2 as per Letter dated 21st October, 2014 (Annexure-C). Pursuant to same, respondent No.2 issued show cause notice dated 20th December, 2014 (Annexure-D) calling 5 WP NO.106754 OF 2015 for explanation from the petitioner, consequently the petitioner filed reply dated 25th March, 2015 (Annexure-E) and it is contended that the respondent No.2, without considering the explanation offered by the petitioner, passed the impugned order, imposing major penalty of compulsory retirement against the petitioner as per Annexure-F and being aggrieved by the same, the present writ petition is filed.
3. Heard Sri Vijayakumar, learned counsel appearing for the petitioner; Sri B.S. Kamate, learned counsel appearing for the respondents 1 and 2; Sri Shvaraj P. Mudhol, learned counsel appearing for the respondents 3 and 4; and Sri Anil Kale, learned counsel appearing for respondent No.5.
4. Sri Viajaykumar, learned counsel appearing for the petitioner, pleaded that both the Departmental Enquiry and the criminal proceedings were initiated on the very same set of facts and the competent Criminal Court acquitted the petitioner on the charges leveled against him. However, the Enquiry Officer, without considering the findings recorded by the Criminal Court, ordered for compulsory retirement, which requires to be 6 WP NO.106754 OF 2015 interfered with in this writ petition. It is the duty of the Disciplinary Authority to consider the order of acquittal made by the competent court in criminal proceedings and therefore, he relied upon the judgment in the case of MANAGING DIRECTOR, STATE BANK OF HYDEREBAD AND ANOTHER v. P. KATA RAO reported in (2007)8 SLR 556 and in the case of DEPOT MANAGER, APSRTC v. MOHAMMED YOUSUF MIA reported in (1997)2 SCC 699. It is his categorical submission that as the acquittal in criminal proceedings held before the imposition of penalty by the departmental enquiry, the disciplinary authority ought to have considered the findings in the criminal proceedings. He further contended that the complainant-PW1 turned hostile and the evidence of Investigating Officer has not been properly appreciated by the Enquiry Officer and even the prosecution has failed to prove the demand and acceptance, which is essential aspect to the considered in trap cases under provisions of Prevention of Corruption Act and the said aspect has been brushed by the Enquiring Authority. He further contended that, reply made by the petitioner to the Show Cause notice has not been properly appreciated by the Disciplinary 7 WP NO.106754 OF 2015 Authority and therefore, sought for setting aside the impugned order. In this regard, he places reliance on the judgment of the Division Bench judgment of this Court in the case of SMT.
ANJALI DEVI v. THE STATE OF KARNATAKA AND OTHERS made in Writ Petition No.1226 of 2022 decided on 21st March, 2022.
5. Per contra Sri B.S. Kamate, learned counsel appearing for the respondent-Corporation argued that the petitioner was trapped while accepting illegal gratification from one Bhimappa Gangappa Karadigudda to show favour for installing new Transformer in place of burnt transformer. Petitioner was kept under suspension and thereafter reinstated. Departmental Enquiry was entrusted to the Upalokayukta and the Upalokayukta, after conducting the enquiry, sent report along with recommendation. Charges were framed, fair opportunity was extended at the time of enquiry in accordance with the Regulations of KEB (CDC and A) Regulations and the petitioner filed reply to the Show cause notice issued by the respondent-
Corporation and in that view of the matter, as there is no complaint against the procedure adopted by the Enquiry Officer 8 WP NO.106754 OF 2015 during the enquiry, the Disciplinary Authority, rightly ordered for compulsory retirement. Sri B.S. Kamate, further contended that the standard of proof in criminal case and the departmental enquiry are different and the result of the criminal proceedings does not affect the enquiry proceedings by the Disciplinary Authority and therefore, he contended that there is no merit in the submission made by the learned counsel appearing for the petitioner and as such sought for dismissal of the writ petition.
To buttress his submissions, he referred to following judgments:
1. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED v. C. NAGARAJU AND ANOTHER (2019)10 SCC 367;
2. AJIT KUMAR NAG V. GENERAL MANAGER (PJ), INDIAN OIL CORPORATION LIMITED v. HALDIA AND OTHERS (2005)7 SCC 764;
3. DIRECTOR GENERAL OF POLICE v. RAJENDRA KUMAR DUBEY, SLP NO.32580/2017 DECIDED ON 25.11.2020;
4. THE STATE OF KARNATAKA AND ANOTHER v.
N. GANGARAJ MADE IN CA NO.8071 OF 2014 DECIDED ON 14.02.2020;
5. D. MANJUNATH v. KARNATAKA LOKAYUKTA WRIT PETITION NO.36761 OF 2014 DECIDED ON 11.01.2017;
9WP NO.106754 OF 2015
6. UNION OF INDIA v. P. GUNASEKARAN 2015 SCC 610
6. Sri Shivaraj P. Mudhol, learned counsel appearing for the respondents 3 and 4 and Sri Anil Kale, learned counsel appearing for the respondent-Karnataka Lokayukta adopted the arguments of Sri B.S. Kamate, learned counsel appearing for the respondent-Corporation.
7. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the writ papers and perused the pleadings placed by the parties.
The core question to be answered in this writ petition is, whether the respondent-Corporation is justified in passing impugned order dated 23rd June 2015 imposing compulsory retirement of service of the petitioner from service.
8. The main arguments canvassed by the learned counsel appearing for the petitioner that the petitioner was acquitted in Special Case No.50 of 2012 dated 22nd June 2015 and therefore, the respondent-Corporation, while issuing impugned order of compulsory retirement, should have considered the findings 10 WP NO.106754 OF 2015 recorded by the Special Court in the criminal proceedings. In this regard, Hon'ble Supreme Court, in a catena of recent decisions, analysed the importance of the findings recorded in the criminal case in the Departmental Enquiry. In the case of KRISHNAKALI TEA ESTATE v. AKHIL BHARTIYA CHAH MAZDOOR SANGH reported in (2004)8 SCC 200, the Hon'ble Supreme Court dealing with a situation similar to the one in this case, where the acquittal was due to lack of evidence before Criminal Court and sufficient evidence was available before the Labour Court, after referring to the judgments in the case of in CAPTIAN M PAUL ANTHONY v. BHARAT GOLD MINES LTD.
reported in (2006)5 SCC 446 and the judgment referred to by the learned counsel appearing for the petitioner in MOHAMMED YOUSUF MIA (supra), has held that, acquittal in criminal court would not debar an employer from initiating the departmental proceedings in accordance with rules and regulations. Both the criminal and the departmental proceedings operate in different fields and have different objectives. It is further held in the said judgment that the disciplinary authority is not bound by the judgment of the criminal court, even if the acquittal order by the 11 WP NO.106754 OF 2015 competent criminal court is placed in the departmental enquiry, as the object of a departmental enquiry is to find out whether the delinquent is guilty of misconduct under the Conduct Rules for the purpose of determining whether the delinquent should be continued in service or not. The standard of proof in a Departmental Enquiry is not strictly based on the rules of evidence and the order of dismissal, which is based on the evidence before the Enquiry Officer in the disciplinary proceedings, which is different from the evidence made available to the Criminal Court and therefore, following the law declared by the Hon'ble Apex Court in the aforementioned case, I am of the view that the judgments referred to by the learned counsel appearing for the petitioner are not applicable to the facts of the case on hand. The said aspect of the matter was considered by the Hon'ble Apex Court in the case of KARNATAKA POWER TRANSMISSION CORPORATION LTD. v. C. NAGARAJU AND ANOTHER reported in (2019)10 SCC 367. At this juncture, it is also useful to refer to the law declared by the Hon'ble Apex Court in the case of STATE BANK OF INDIA AND ANOTHER v. K. S. VISHWANATH reported in AIR 2022 SC 2531, wherein at 12 WP NO.106754 OF 2015 paragraph para 7.3 to 9 of the judgment, the Hon'ble Supreme Court held as under:
7.3 Recently in the case of Nand Kishore Prasad (Supra) after considering other decisions of this Court on judicial review and the power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry, it is observed and held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is further observed and held that the High 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. It is further observed that if there is some evidence, that 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 under Article 226 of the Constitution of India to review/re-appreciate the evidence and to arrive at an independent finding on the evidence. In paragraphs 9 to 14, this Court had considered other decisions on the power of the High Court on judicial review on the decisions taken by the Disciplinary Authority as under:
"9. In State of A.P. v. S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] , a threeJudge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under :
(AIR pp. 172627, para 7) "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 13 WP NO.106754 OF 2015 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, 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."
10. In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , again a threeJudge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under : (SCC pp. 75960, paras 1213) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority 14 WP NO.106754 OF 2015 accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] , this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
11. In High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 :
2000 SCC (L&S) 144] , this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under : (SCC p. 423, para 16) 15 WP NO.106754 OF 2015 "16. The Division Bench [Shashikant S. Patil v. High Court of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1 LLN 160] of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court.
Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L&S) 721] , this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under :
(SCC pp. 58788, paras 7 & 10) "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has 16 WP NO.106754 OF 2015 been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , Union of India v. G. Ganayutham [Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806] and Bank of India v. Degala Suryanarayana [Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC (L&S) 1036] , High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC (L&S) 144] .) ***
10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the 17 WP NO.106754 OF 2015 disciplinary authority to attain finality by nonchallenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
13. In another judgment reported as Union of India v. P. Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554] , this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings : (SCC p. 617, para 13) "13. Under Articles 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. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari [Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335] , wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the 18 WP NO.106754 OF 2015 case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct."
That thereafter this Court has observed and held in paragraph 7, 8 and 15 as under:
"7. The disciplinary authority has taken into consideration the evidence led before the IO to return a finding that the charges levelled against the respondent stand proved.
8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decisionmaking process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.
xxx xxx xxx
15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] and B.C. Chaturvedi [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law."
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in 19 WP NO.106754 OF 2015 interfering with the order passed by the disciplinary authority dismissing the respondent - delinquent officer from service. The High Court has erred in reappreciating the entire evidence on record and thereafter interfering with the findings of fact recorded by the Enquiry Officer and accepted by the disciplinary authority.
By interfering with the findings recorded by the Enquiry Officer which as such were on appreciation of evidence on record, the order passed by the High Court suffers from patent illegality. From the findings recorded by the Enquiry Officer recorded hereinabove, it cannot be said that there was no evidence at all which may reasonably support the conclusion that the Delinquent officer is guilty of the charge.
9. Now so far as the submission on behalf of the respondent
- delinquent officer that as he has been acquitted in a criminal court and therefore, he cannot be held guilty in a disciplinary proceeding is concerned, the aforesaid has no substance. From the judgment and order passed by the criminal court it appears that he has been given the benefit of doubt. Even otherwise the standard of proof which is required in a criminal case and that of the disciplinary proceedings is different. The fact that the criminal court acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. As held by this Court in a catena of decisions the standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings."
9. In the case of MAHARASHTRA STATE ROAD TRANSPORT CORPORATION v. DILIP UTTAM JAYABHAY, reported 20 WP NO.106754 OF 2015 in AIR 2022 SC 238, the Hon'ble Supreme Court at paragraph 10.4 of the judgment observed thus:
"10.4 Even from the judgment and order passed by the criminal court it appears that the criminal court acquitted the respondent based on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating officer; panch for the spot panchnama of the incident, etc. Therefore, criminal court held that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. As per the cardinal principle of law an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, the Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. Even otherwise it is required to be noted that the Industrial Court has not interfered with the findings recorded by the disciplinary authority holding charge and misconduct proved in the departmental enquiry, and has interfered with the punishment of dismissal solely on the ground that same is shockingly disproportionate and therefore can be said to be an unfair labour practice as per clause No.1(g) of Schedule- IV of the MRTU & PULP Act, 1971."
10. Following the law declared by the Hon'ble Supreme Court in the aforementioned cases, I am of the view that the petitioner has not made out a case for interference with the impugned order of compulsory retirement as ordered by the 21 WP NO.106754 OF 2015 Disciplinary Authority in the wake of the acquittal order in criminal proceedings.
11. Nextly, learned counsel appearing for the petitioner invited the attention of the Court to the evidence adduced by the parties before the disciplinary Authority and argued that the interference is to be made as the Enquiry Officer has not appreciated the evidence in the right perspective. In this regard, it is well settled principle in law that this Court is having limited jurisdiction to interfere with the findings recorded by the Enquiry Office in a departmental enquiry, unless the Enquiry Officer arrive at a conclusion with no evidence. In view of the said submission, I am constrained to look into the testimony of PWs 1 and 2 and after looking into the evidence on record, I am of the view that the enquiry Officer has gone into the evidentiary part in the matter vis-à-vis appreciated the exhibits marked during the departmental enquiry and arrive at the conclusion with reasons. In that view of the matter, this court cannot sit in appeal over the finding recorded by the Enquiry Officer or by the 22 WP NO.106754 OF 2015 Disciplinary Authority and take a different view from the findings of fact recorded by the respondent-authorities.
12. It is also relevant to cite the law declared by the Hon'ble Apex Court in the case of PRAVIN KUMAR v. UNION OF INDIA AND OTHERS reported in (2020) 9 SCC 471. At paragraphs 25 to 30 and 34 of the said judgment, the Hon'ble Supreme Court has held as under:
"25. Learned counsel for the appellant spent considerable time taking us through the various evidencesonrecord with the intention of highlighting lacunas and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision making process and not the merits of the decision itself. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.
26. These principles are succinctly elucidated by a three - judge Bench of this Court in BC Chaturvedi v. Union of India in the following extract:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that 23 WP NO.106754 OF 2015 the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted 24 WP NO.106754 OF 2015 to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:
(i) State of Tamil Nadu v. S Subramaniam, (1996) 7 SCC
509.
(ii) Lalit Popli v. Canara Bank, (2003) 3 SCC 583.
(iii) Himachal Pradesh State Electricity Board Ltd v. Mahesh Dahiya, (2017) 1 SCC 768.
28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, crossexamination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well reasoned. Furthermore, the High Court didn't restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds 25 WP NO.106754 OF 2015 that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.
30. Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.
34. It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. 6 Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision. Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances."
13. In the case of DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) & OTHERS v. AJAY KUMAR SRIVATSAVA reported in (2021) 2 SCC 612, at paragraphs 22 to
28. the Hon'ble Supreme Court held as under:
26WP NO.106754 OF 2015 "22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is 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 the case on merits as an appellate authority which has been earlier examined by this Court in State of Tamil Nadu Vs. T.V. Venugopalan and later in Government of T.N. and Another Vs. A. Rajapandian4 and further examined by the three Judge Bench of this Court in B.C. Chaturvedi Vs. Union of India and Others5 wherein it has been held as under:
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
23. It has been consistently followed in the later decision of this Court in Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya6 and recently by the three Judge Bench of this Court in Pravin Kumar Vs. Union of India and Others.
24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the 27 WP NO.106754 OF 2015 proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with 28 WP NO.106754 OF 2015 objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides 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 findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
14. Recently, Hon'ble Apex Court, in the case of STATE OF KARNATAKA AND ANOTHER v. UMESH reported in (2022) 6 SCC 563, in paragraph 16 to 23,held as under:
"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a 7 criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.29
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17. In a judgment of a three judge Bench of this Court in State of Haryana v. Rattan Singh5, Justice V R Krishna Iyer set out the principles which govern a disciplinary proceedings as follows: 5 (1977) 2 SCC 491 "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is 30 WP NO.106754 OF 2015 some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground." (emphasis supplied) These principles have been reiterated in subsequent decisions of this Court including State of Rajasthan v. B K Meena6; Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh; Ajit Kumar Nag v. Indian Oil Corporation Ltd.; and CISF v Abrar Ali.
18. In the course of the submissions, the respondents placed reliance on the decision in the Union of India v. Gyan Chand Chattar10. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision:
"21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. [...] wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."31
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19. The observations in paragraph 21 are not the ratio decidendi of the case. These observations were made while discussing the judgment of High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh (supra) was reiterated:
""35. ...an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statue defining the misconduct."
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the non- existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law." (emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with.
32WP NO.106754 OF 2015
20. In Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju, this Court has held:
"9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different."
21. The Court also held that:
"13. Having considered the submissions made on behalf of the Appellant and the Respondent No.1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court."33
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22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(v) the penalty is disproportionate to the proven misconduct.
23. However, none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority are sustainable with reference to the evidence which was adduced during the enquiry. The acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding."
15. It is well established principle in law that, this Court while exercising the jurisdiction of judicial review under Article 226 of the Constitution of India, should not interfere with the 34 WP NO.106754 OF 2015 merits of the decision and scope of interference is only with regard to the decision making process. In the instant case, the procedure adopted by the respondent Corporation while conducting the departmental enquiry is fair, just and proper, meets the judicial standards and therefore I am of the view that, no interference is called for in this writ petition (see AIR 2022 SC 5626).
16. In the light of the law declared by the Hon'ble Apex Court referred to above, I am of the view that the judgments referred by the learned counsel appearing for the petitioner cannot be accepted and I find no merit in the writ petition.
Accordingly writ petition is dismissed.
Sd/-
JUDGE LNN