Bhikhubhai Kamabhai Dabhi vs Surat Municipal Corporation & 2 on 12 January, 2017

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Gujarat High Court

Bhikhubhai Kamabhai Dabhi vs Surat Municipal Corporation & 2 on 12 January, 2017

HC-NIC Page 1 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a dismissed employee of the Surat Municipal Corporation, has prayed for the following reliefs:

"38(A)That by appropriate direction and order issued by this Hon'ble Court, the impugned order of termination and the resolution, copies of which are annexed hereto, be quashed and or set aside and the petitioner be directed to be reinstated in service of the Corporation with continuity of service with all the monetary benefits such as salary, perks and other allowances which he would have otherwise received had he been in service, with immediate effect.

(B) Pending hearing and final disposal of this writ petition, by way of adinterim and interim relief, execution operation and further proceedings pursuant to the impugned resolution and the order of termination may be stayed and the petitioner be directed to be reinstated in service with continuity of service and be directed to be paid salary, allowances and other perks.

(C) Pending hearing and final disposal of this Special Civil Application, the respondents herein, their officers servants and agents be directed not to fill up the post of Administrative Officer in the Municipal School Board, Surat, on permanent basis;

(D) Pending hearing and final disposal of this Special Civil Application, the respondents herein, their officers, servants and agents be restrained by an order and injunction of this Hon'ble Court from taking possession and otherwise interfering with the enjoyment of the official quarter alloted to the petitioner, situated at 4, Municipal Staff Quarters, Saudagarwad, Surat;


               (E)     Adinterim and interim exparte order in terms of prayer

               (F)     Cost of this petition be provided for;

(G) Such other and further reliefs deemed fit in the facts and circumstances of the case be granted"

2 The case of the writ applicant may be summarised as under:

2.1 The writ applicant came to be appointed as an 'Administrative Officer', Municipal School Board, Surat vide the appointment order dated 30th December 1987.

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HC-NIC Page 2 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 2.2 While in service, he was served with a departmental chargesheet on the various grounds of misconduct. By order dated 20th December 1990, the writ applicant was also placed under suspension.

2.3 The charges levelled against the writ applicant are as under:

"1 Charge No.1 As per Rule 55 of the Bombay Primary Education Rules, 1949, goods specified therein exceeding the value of Rs.5,000 should not be purchased from open market, save and except by tender. Seven tenders were invited. However, these tenders were not scrutinized, and the goods worth Rs.2,21,415.50 were purchased from the open market which occasioned a loss of Rs.1,07,405 to the Municipal Corporation.

Findings of the Inquiry Officer.

It was not stated in the Purchase SubCommittee decision dated 17.7.1990 and the reply of the defence representative dated 14.12.1994 that the physical education equipments are not to be purchased from the tenders received but to be purchased by visit to Mumbai by all the members of the SubCommittee and after spot examination of the equipments. But one member of the Purchase Committee Shri I.I. Pathan and the Administrative Officer Shri Dabhi went to Mumbai and made all the purchases. In the Audit Report for the year 199091 by Local Fund Audit Department, an objection was taken in this regard as under:

Rs.1,07,405 Payment due to high price.

                       Rs.17,038    Central Sales Tax
                       Rs.937 Bank charges
                       Rs.2,711     Expenses of Mumbai Tour.

Thus, looking to all this, in spite his knowing that in the purchase of physical education equipments, provisions of Bombay Primary Education Act was not followed. Mr. Dabhi has not made any attempt to stop this purchase. Moreover, it is also not he has produced any adverse report before the School Board or the Chief Officer in this regard.

Held charge as proved.

Charge No.1(B) In response to the tender notice dated 12.6.1990, three tenders were received against the provision of Rs.1,50,000 for drinking water equipments. But purchase was made from the open market.

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HC-NIC Page 3 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Finding of the Inquiry Officer.

It appears that the purchase order was placed by Mr. Dabhi with M/s. Manoj Steel Corporation, Mumbai in which no mention is made about the tender, price list or the resolution of the Committee. It is also not proved that as an important Chief Officer of the Education Committee, he has brought to the notice of the Education Committee such an important matter like violation of the rules in the purchase.

Held the charge as proved.

2 Charge No.2

Sanction was given for the tender submitted by Janmabhoomi Prayogik Sangh for the steel frame benches at Rs.635.25 each for the school furniture for the year 198889. A total of 825 benches were ordered and the inspection of the benches revealed that the benches were not as per specifications. By accepting inferior quality of goods, financial loss was caused to the Municipal Corporation and Mr. Dabhi has shown a serious dereliction of duty.

Findings of the Inquiry Officer Under this charge, allegation was made against Shri Dabhi that the benches were not as per specifications. Looking to the fact Mr. Dabhi has produced the report of the Deputy Engineer of Mahanagarpalika before the Purchase Committee, it is not proved that Shri Dabhi tried to suppress any fact or to make any economic damage to the Mahanagarpalika, but in connection with this technical report, as an Administrative Officer, he has not prepared the estimate from well known person regarding the actual cost of the benches made from low quality wood and also not produced the report with his opinion before the Purchase Committee. If he has produced before the Education Committee his opinion clearly, then the Education Committee would have given more thought before imposing the penalty of Rs.15,000 only. Thus, it seems that as an Administrative Officer, Shri Dabhi missed to give his opinion in the interest of administration.

Held the charge as partly proved.

3 Charge No.3

Applications were invited by publishing the advertisement on 28.7.1987, vide advertisement No.PRO/129/8789 for preparing waiting list for the posts of Jr. Clerk in Nagar Prathmik Shikshan Sammittee, Surat. Even though 77 candidates with lower qualifications in typing were called and 20 candidates out of the 77 Page 4 of 29 HC-NIC Page 4 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT have been selected in the waiting list. And many candidates having the necessary qualification as per the advertisement were excluded.

Thus, by favouring and selecting the candidates with lower qualification, Mr. Dabhi has committed dereliction of duty.

Findings of the Inquiry Officer.

The report regarding recruitment of clerks which Mr. Dabhi has produced before the Education Committee and Standing Committee was misleading.

4 Charge No.4

A tour was arranged of the members of Nagar Prathmik Shikshan Sammittee to know the educational and administrative functioning of other Shikshan Sammittee of Gujarat. Only one member out of the eight was willing to join the tour. Mr. Dabhi did not cancel the tour. Instead, he proceeded along with one member and other employees and thus, has made wastage of money of Mahanagarpalika.

Findings of the Inquiry Officer.

In this situation, Mr. Dabhi has to submit before the Chief Officer of Shikshan Sammittee to cancel the tour in the interest of administration and finance but no submission is made out from his side and no evidence is produced in this regard by him. As an Administrative Officer, instead of cancelling the tour, Mr. Dabhi joined the tour which is not proper so far as administration is concerned.

Held the charge as partly proved.

5 Charge No.5

One Shri Maganbhai Lad, Office Superintendent of Shikshan Sammittee was suspended. One Shri Devjibhai Premabhai Makwana, President of Prathmik Shikshan Mandal has filed criminal case no.65/87 against Shri Lad in the court of Judicial Magistrate, First Class at Surat. Shri Dabhi reinstated him in service and has not submitted the file regarding suspension of Mr. Lad.

Findings of the Inquiry Officer.

Final order has not been passed by the Court in the case against Mr. Lad. In these circumstances, it is not an improper action to reinstate Shri Lad subject to any order which may be passed by the Court. In these circumstances, there is no serious substance in this allegation.

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HC-NIC Page 5 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Held the charge as not proved.

6 Charge No.6

The recruitment of additional teachers for the future provision has to be done with sanction from the Government as per the resolution dated 22.9.1980. Mr. Dabhi has carried out recruitment of 264 teachers arbitrarily without the sanction of the Government. He has also appointed fresh teachers disregarding the order that no more teachers should be alloted, vide order dated 10.7.1989. Thus, he recruited 329 more teachers by continuing recruitment. And furnished the misguiding information to the Standing Committee. Thus, Mr. Dabhi has committed dereliction of duty and caused financial loss of Rs.1,07,13,429 to the Municipal Corporation.

Findings of the Inquiry Officer.

In this regard, in the Audit Report produced at Exh. 32 by the complainant, it is mentioned that Shashanadhikari is responsible as an Administrative Officer. Thus, looking to the whole, even though the proper permission was not received from the State government or Mahamanagarpalika regarding appointment of additional teachers, appointment of teachers are made by Shri Dabhi by misusing his powers and it is very serious as an Administrative Officer of Shikshan Sammittee and he is held directly responsible for that. Thus, looking to the whole, as a person or as an Administrative Officer, Shri Dabhi has not produced any type of 'adverse report' before the Chief Officer, Shikshan Sammittee, Standing Committee or Municipal Commissioner in this regard which shows that he is not serious about this fact. Out of all the allegations against Shri Dabhi, this allegation is very important and serious.

Held the charge as proved.

7 Charge No.7

During his tenure as an Administrative Officer in the year 199091 till he has been put under suspension, i.e. 20.12.1990, Mr. Dabhi has transferred 1016 Primary Teachers out of 3300 without considering the administrative reasons. Thus, he has caused loss to education.

Findings of the Inquiry Officer.

In his defense Mr. Dabhi has stated that Chief Officer of the Shikshan Sammittee has given him instruction that 100% recommendation will have to be taken into consideration regarding transfer of the members of "srusiti" and recommendation of the Corporation will also have to be taken into consideration. Shri Page 6 of 29 HC-NIC Page 6 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Dabhi has also represented in his defense that instruction of Chief Officer of Shikshan Sammittee and due to pressure of Corporators and due to often and often representations, he was constrained to make transfers as per the norms. This defence of Shri Dabhi does not seem to be proper, because as an Administrative Officer, he has to make transfers as per the norms prescribed for the transfer of teachers without coming under any type of pressure. Of course, representations from members of Shikshan Sammittee for transfer and pressure is as much as like torturing upon the Shashanadhikari and if transfer is not made as per their recommendation, then they continue to harass the Shashanadhikari, but as a responsible officer, it is not proper to surrender fully to such type of surrender.

Held the charge as partly proved.

8 Charge No.8

In spite of not having permission from the State Government, for the purposes of filling up the vacancies in the poss of Primary Teacher without the consent of Selection Committee, Mr. Dabhi has retrained the staff after office hours and paid overtime allowance and thus made misuse of funds.

Findings of the Inquiry Officer In defense Shri Dabhi has pointed out the instructions of Chief Officer but in this regard he has not produced any evidence and he is not bound to follow the order or any unauthorized instructions of Chief Officer. Actually, as an Administrative Officer of Shikshan Sammittee he has not to sent for publication of that advertisement and there is some substance in the allegation made against Shri Dabhi.

Held the charge as proved.

9 Charge No.9

In spite of there being no permission from Government, advertisement was given in two newspapers on 10.8.1990 for the recruitment of Primary Teachers of Gujarati medium in the schools run by Municipal Education Committee and also given advertisement in Gujarat Samachar Ahmedabad in addition. As per Rule 62(1)(KH) of the Bombay Primary Education Rules 1949, the advertisements have to be given in the local newspapers. But, instead, by giving advertisement in the edition of other city, Shri Dabhi has caused financial loss of Rs.10,700 to the Municipal Primary Education Committee. Thus, he has committed serious Page 7 of 29 HC-NIC Page 7 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT dereliction of duty.

Findings of the Inquiry Officer.

Held the charge as proved.

10 Charge No.10

As per circular dated 16.10.1990 of the Municipal Commissioner, 20% reduction is to be made in the consumption of petrol and diesel. It was also instructed that no vehicle should be allowed to be taken out of Surat City. In spite of this, without taking permission, Mr. Dabhi has taken the ambassador car of Municipal School Board to Itola and Godhra on 21.10.1990 and 27.10.1990. This action of him is considered as a serious indiscipline. This way Mr. Dabhi has committed a serious dereliction of duty.

Findings of the Inquiry Officer.

It is mentioned that this car was taken to Godhra for the work relating to furniture. Shri Laxmanbhai Patel, Convenor of Purchase Committee was not involved. In this tour, authorized permission was not taken from the Municipal Commissioner and also included Pavagadh as an additional place which also seems improper.

Held the charge as proved.

11 Charge No.11

Cancellation of waiting list for clerks which was duly approved by the General Body of the Corporation arbitrarily and advertising for the said post afresh without taking permission of competent authority and even when the post of Clerk was not vacant.

Findings of the Inquiry Officer.

If no post of Clerk is vacant, it is not proper to give advertisement for recruitment of post at that time. Shri Dabhi mentioned consent of Chief Officer in this regard but no evidence has been produced in this regard. As a Chief Administrative Officer, Shri Dabhi missed his primary responsibility.

Held the charge as proved."

2.4 It appears that as the Surat Municipal Corporation got dissolved, the State Government appointed an 'Administrator'. The Administrator, vide the resolution No.2486 dated 13th June 1995, dismissed the writ applicant from service having regard to the findings recorded by the Page 8 of 29 HC-NIC Page 8 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Inquiry Officer.

2.5 On 14th June 1995, the Municipal Commissioner, Surat Municipal passed the following order:

"O R D E R In pursuance of the Administrator's Resolution No.2486, dtd.13.6.1995 Shri B.K. Dabhi, Administrative Officer of Municipal School Board of Surat Municipal Corporation (under suspension) is hereby dismissed from the services of Surat Municipal Corporation under proviso of Section 56(2)(H) of the B.P.M.C. Act, 1949 with immediate effect.

It is further ordered that suspension allowance paid to him should not be recovered from him."

sd/ (S.R. Rao) Municipal Commissioner.

Surat Municipal Corporation."

3 Being dissatisfied with the decision referred to above, the writ applicant has come up with this writ application.

4 Mr. Shalin Mehta, the learned senior advocate appearing for the writ applicant has filed written submissions. In his written submissions, he has offered his comments on each of the charges and the findings recorded by the Inquiry Officer. His submission on each of the charges is as under:

"Submissions on Charge No.1 The petitioner demanded a copy of the letter which he has addressed to the Chairman of the School Board in which he has pointed out that the purchase of material from open market violates the rules. However, notwithstanding the said letter, a decision was taken by the Purchase Committee that notwithstanding the receipt of 7 tenders, the goods should be purchased from Mumbai at site after inspecting them i.e. from the open market without inviting tender. This letter was on office record, which would show that the petitioner was not instrumental in making the purchase from open market and which caused the above loss to SMC. The petitioner did not receive any reply to the said letter and he was asked to implement the decision of the Purchase Committee.

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HC-NIC Page 9 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT As a subordinate officer, the petitioner had no option but to carry out the wishes of the committee. Nonsupply of the said letter thus has gravely and prejudicially affected the petitioner and has led to the miscarriage of justice.

Payment is made under signature of the Chairman and Administrative Officer, through Bank and not by cash.

In the cross examination of departmental witness Shri Karsanbhai F. Patel, incharge Administrative Officer, he was called upon to produce the above letter, he stated that such letter was not on record of the Municipal Corporation though he did not deny that such letter was written by the petitioner. The defence witness, Laxmanbhai Patel, who was the Convenor of the Purchase Committee has proved that such a letter was written by the petitioner.

Thus, to come to the conclusion that the petitioner has himself purchased the goods in violation of the rules and caused loss of the corporation is to say the least perverse and absurd.

Submissions on Charge No.1(B):

The petitioner has only carried out the instructions of the Convenor of the purchase Committee Shri Laxmanbhai Patel and his saying in this behalf is fully supported by his letter dated 7.8.1990. This letter is totally disregarded on the ground that it is not a genuine document but is concocted and not on the record of the Municipal Corporation. The entire approach showed a predetermined mind to get rid of the petitioner somehow or the other. The burden of proving that the petitioner is not guilty of the charge is shifted to him, which is not permissible in a departmental proceeding. Thus, the finding is perverse.

Submissions on Charge No.2:

The departmental witness Shri Karsanbhai Patel admitted that the goods were accepted after the opinion of the engineer was obtained and with the sanction of the Purchase Committee and that the payment was made after deducting penalty as per decision of the Purchase Committee and yet the Inquiry Officer found the petitioner partly guilty of the charge. This above the total prejudice on the part of the authorities.

Submissions on the Charge No.3:

It is submitted that earlier the concerned authority advertised inviting applications from candidates possessing typing speed of 25/30 words per minute in Gujarati and English respectively. So far as Government is concerned, the stipulated criteria is typing speed of 20/30 words per minutes. Therefore persons who answered the qualifications of 20/30 Page 10 of 29 HC-NIC Page 10 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT words speed were also called. To this effect endorsement was made by the petitioner. This is made under instructions of the Committee. The allegation that the eligibility criteria was reduced from 25/30 words to 20/30 words to oblige certain persons has not been proved. No names of persons who were obliged were pointed out.

The petitioner interviewed and prepared a merit list of those persons who were interviewed, and forwarded the same to the School Board. Necessary appointments were made not by the petitioner but by a resolution of the said School Board which had to be approved by the Standing committee of the Corporation. Appointments were thereafter made by the petitioner from the list of such candidates as approved by the Chairman of the School Board. The findings as well as the charge are vague and do not give any particulars.

Submissions on the Charge No.4:

Evidence produced show that the entire tour was undertaken with the previous approval of the Chairman of the School Board. The inquiry officer has shifted the burden of proving the innocence of the petitioner to the petitioner, which is not permissible in a departmental proceeding.

Submissions on the Charge No.6:

Such appointments are sooner or later sanctioned by the State Government. This fact has been admitted by the department witness Shri Karsanbhai Patel.

The State Government by its letter dated 10.7.1989 had informed the Chairman of the School Board that the appointment of the said teachers were not sanctioned. The said letter was produced before the School Board and the said Board unanimously resolved that such appointment should be made at the expenses of Municipal Corporation. Further, the resolution of the School Board was not sanctioned by the general board of the Surat Municipal Corporation though proposal sent for sanction of appointment of teachers was discussed from time to time and has not been sanctioned. This shows that the appointment of teachers was within the knowledge of the entire General Body of the Corporation and obviously within the knowledge of the Commissioner too. The proposal that the entire expenses in respect of appointment of teachers should be borne by the Corporation has been forwarded to the Standing Committee. Such proposal would not have been put to Standing Committee if it was illegal or improper. Further, there was change of corporators constituting the Corporation. On political grounds, the said resolution has not been approved either by the General Body or the Standing Committee of the Corporation.

It is submitted that the School Board has unanimously approved the Page 11 of 29 HC-NIC Page 11 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT appointment of all the teachers and obviously when the petitioner issued appointment orders in full consultation with the Chairman of the Board. Thus he cannot be alleged to have committed any misconduct resulting in loss to the Corporation.

It is submitted that no teacher has been relieved of his or her service on the ground that the appointment was bad in law initially or continues to be bad in law.

Submissions on Charge No.7:

This charge is vague and indefinite and does not give details like who were transferred, how many times and in which year. Thus the conclusion reached by the Inquiry Officer is without basis in legal evidence and is perverse.

Submissions on Charge No.8:

overtime work was taken from employees, after the Chairman of the School Board had authorized the same. The letter written by the Chairman in this behalf is purposely not produced, nor copy/inspection thereof was given to the petitioner even though demanded. The cheque for payment of overtime payment was actually countersigned by the Chairman. Thus, the charge is held to be proved without evidence.

Submissions on Charge No.10:

The car belonging to the School Board has to be used with the sanction of the Chairman of the School Board. The Chairman had to and id authorize taking the car belonging to the Board and for which user report was made by the petitioner in writing and which report was approved and sanctioned by the Chairman.

Though the demand was made to produce this report and the order of the Chairman thereof, the order was not produced, nor copy of the said report or order was given to the petitioner. This aspect is suppressed by Shri Karasanbhai Patel. In fact, the car which went out of the city on October 7, 1993 was sent out under the signature of Karasanbhai Patel, the only witness on behalf of the department. It is clear that Shri Karsanbhai Patel could not have authorized the user of the car unless the report put up by the petitioner was sanctioned by the Chairman.

It is submitted that by letter dated 16.6.1994 at serial nos. 1 and 2, the report made by the petitioner and the order in terms were required to be produced and copies thereof were required to be given to the petitioner. This record has been suppressed by the said Shri Karsanbhai Patel on the plea that the record is not available.

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HC-NIC Page 12 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Similar is the position with regard to the production, and giving inspection of the copy of letter bearing outward no.431 by which Shri Karsanbhai Patel asked the driver Rameshbhai to take the letter no.4620 dated 17.10.1990. All these letters were available and yet the same were not produced. Thus, the Inquiry's Officer's findings are perverse and without any evidence.

Submissions on Charge No.11:

It is submitted that the said waiting list was cancelled not by the petitioner, but by the Chairman of the School Board. This fact is admitted by Shri Karsanbhai Patel himself. This action was taken by the Chairman on the basis of a letter received by him from one of the members Shri Laxmanbhai Patel. He has also endorsed a copy of the said letter to the petitioner.

It is submitted that the petitioner demanded a copy of the letter by which the Chairman decided to cancel the waiting list. Copy was not given to the petitioner. The same is also not produced by Karsanbhai Patel. But it is admitted by Karsanbhai Patel in his report dated 30.6.1994 at serial no.11(4) that the Chairman has cancelled the waiting list of the clerks. It is also submitted that it was stated that there was no vacancy when the advertisement was issued, but the copy of the report of Karsanbahi Patel dated 25.10.1990 which was produced would show that 7 posts of Junior Clerk were available."

5 On behalf of the Corporation, Mr. B.P. Tanna, the learned senior advocate appearing for the respondents has filed his written submissions as under:

"2.1 With respect to paragraph 1 of the submissions, it is pertinent to note that the petitioner purchased the materials from the open market in excess prices assailing the fact that various tenders were invited and after receipt of seven tenders the Purchase Committee decided that the materials should be purchased from the open market without inviting tenders, which was violative of Rule 55(1) of Bombay Primary Education Rules, 1949. Though the entire procedure was laid down under the Rules and Regulations, the decision of turning down the tenders without following the due process would tantamount to infringement of Bombay Primary Education Rules, 1949. It was also the case of the respondent Corporation that after rejecting the old tenders the petitioner ought to have informed the School Board and subsequently, School Board has to finally take the decision which tender is required to be considered. It was also stated by the petitioner that Purchase Committee had decided to purchase the materials Page 13 of 29 HC-NIC Page 13 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT from Mumbai as site after inspecting them, but the same decision of the Purchase Committee is not confirmed by the Convenor and all the members of the Purchase Committee. In fact, the present petitioner and one member of the Committee i.e. Mr. I.I. Pathan, went to Mumbai and purchased all the materials at higher price without any security deposit, which caused loss to the Corporation and also the same unilateral decision was violative of Rule 59 of Bombay Primary Education Rules, 1949. It is also required to be considered that before purchasing the materials from the open market at higher price assailing the fact that the tenders were invited, the necessary permission was not obtained from the Corporation for purchasing the materials from open market, the Local Fund Audit Department raised an objection in their report. It is also not reflecting anywhere from the documents produced and defense taken by the petitioner that the petitioner tries to avoid such unlawful decision. Insofar as the documents which were accepted by the petitioner on demand are concerned the same supplied to him and he had challenged the documents along with its acknowledgment is proof that he had received the document on 1/7/1994 served by the Corporation bearing No.GAD/EST/I/247 was produced along with the reply of the Corporation. It is reiterated what is stated in the finding of the report of inquiry officer at page no.74 of the petition.

In view of charge No.1(a), the tender notice dated 12/6/1990, three were received against the provision of Rs.150000/. But the petitioner had purchased the Drinking Water equipments from the open market, which was contrary to the Bombay Primary Education Rules, 1949. It is also evident that the said purchase order was placed by the petitioner with M/s. Manoj Steel Corporation, Mumbai and the said order was not mentioned anywhere in tender, price list or resolution of the committee. Therefore, the petitioner tried to envelope his mistakes and shifted the entire burden on the Convenor of the Purchase Committee. It is also pertinent to note that the petitioner had nowhere objected the entire process of the purchase which would go to show that the involvement of the petitioner in the said unlawful process. It is reiterated what is stated in the finding of the report of the inquiry officer at page no.76 of the petition.

2.2 With respect to paragraph 2 of the submissions, in the year 1988 89 the tender was sanctioned to Janmabhoome Prayogik Sangh for total 825 Steel Frame Benches. But the engineers opined that the benches were not in consonance with the specifications still those benches were purchased contrary to the report of the Dy. Engineer. It was defended by the petitioner that the goods were accepted after the sanction of the Purchase Committee and the payment was made after deducting the penalty as per the decision of the Purchase Committee. But the petitioner had not prepared his own report on the basis of the report of the Dy. Engineer about the faulty or low quality benches and same was not reported to the Corporation, being an Administrative Officer, which is Page 14 of 29 HC-NIC Page 14 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT detrimental to the interest of the Corporation. It is reiterated what is stated in the finding of the report of inquiry officer at page No.77 of the petition.

2.3 With respect to paragraph 3 of the submissions, the petitioner interviewed and prepared a merit list for the post of Junior Clerk in Nagar Prathmik Sikshan Samiti. The petitioner prepared waiting list containing 77 candidates out of which 20 candidates were selected. The petitioner selected the candidates with lower qualification and the eligibility criteria for typing speed was reduced from 25/30 words to 20/30 words. The report prepared by the petitioner regarding the recruitment of Clerks and submitted before the Education Committee was misleading. It is reiterated what is stated in the finding of the report of inquiry officer at page No.78 of the petition.

2.4 With respect to paragraph 4 of the submissions, in pursuance of charge No.4 the petitioner being only one member out of eight members was willing to join the tour arranged for the members of the Nagar Prathmik Shikan Samiti to know the educational and administrative functions of the other Shikshan Samitis of Gujarat. Instead of postponing the entire tour on any other date, he himself proceeded further along with one member and other employees which would amount to cause monetary loss to the Corporation visavis being an Administrative Officer the act would amount to detrimental to the interest of the administration and finance of the Corporation. It is reiterated what is stated in the finding of the report of inquiry officer at page No.80 of the petition.

2.5 With respect to paragraph 5 of the submission, the said charge No.5 was held to be not proved by the inquiry officer. Hence it is not required to be dealt with.

2.6 With respect to paragraph 6 of the submission, in view of the resolution of the State Govt. dated 22/9/1980, the petitioner ought to have recruited 264 teachers after obtaining necessary permission from the State Govt. But the petitioner, being an Administrative Officer of the Corporation, shifted the entire burden upon the School Board and it was well within the knowledge of the petitioner that though School Board has agreed to the said appointments, the General Body of the Corporation did not sanction. It was also acknowledged to the petitioner that the proposal of expense of the entire recruitment should be borne by the Corporation and same has been forwarded to the Standing Committee, which was illegal and improper and same was against the administration and interest of the Corporation. It is also pertinent to note that the said resolution had not been approved either by the General Body or the Standing Committee of the Corporation. It was also evident that petitioner had recruited in excess quota of teachers, which was reflected in Audit Report (as per Exh. 32). It is reiterated what is stated in the finding of the Page 15 of 29 HC-NIC Page 15 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT report of inquiry officer at page No.83 of the petition.

2.7 With respect to paragraph 7 of the submission, the petitioner transferred 1016 primary teachers during the tenure of 199091 till he has been suspended i.e. 20/12/1990 being an Administrative Officer, which created great difficulties in the functioning of the Education Department. It is also stated by the petitioner that he had carried out the entire transfer procedure under the instructions of the Chief Officer of Shikshan Samiti and due to the pressure of the Corporators and various representations. But, assailing the fact that being an Administrative Officer of the Corporation, he ought not to have acted under any influence or pressure, which created chaotic situation in the Education Department and committed irregularities both in Administrative and financial, hence he cannot be allowed to continue in the Corporation. It is reiterated what is stated in the finding of the report of inquiry officer at page No.87 of the petition.

2.8 With respect to paragraph 8 of the submissions, the petitioner had retained the office staff even after office hours and paid the overtime allowances by misusing the funds without the permission from the Corporation for the purpose of filling up the vacancies in the post Primary Teacher without consent of the State Govt. Despite the fact that the State Govt. had not sanctioned the recruitment driver exceeding the quota, the petitioner had carried out the said process unanimously. Therefore, the alibi of the petitioner that he carried out the entire process under the instructions of Chief Officer of Shikshan Samiti cannto sustain in view of the fact that no documentary evidences were produced. It is reiterated what is stated in the finding of the report of inquiry officer at page No.88 of the petition.

2.9 With respect to paragraph 9 of the submission, the said charge No.9 was held to be not proved by the inquiry officer. Hence it is not required to be dealt with.

2.10 With respect to paragraph 10 of the submission, the petitioner had utilized the vehicle (Ambassador car) of the Municipal School Board to Itola and Godhra on 21/10/1990 and 27/10/1990 without taking prior approval of the Chief Officer. It is also pertinent to note that because of misconduct in this regard the Local Fund Examiner raised an objection on 17/12/1991 vide Exh. 42. It is reiterated what is stated in the finding of the report of inquiry officer at page No.91 of the petition.

2.11 With respect to paragraph 11 of the submissions, the petitioner cancelled the waiting list of Clerks without the prior permission of the competent authority and issued fresh advertisement for the recruitment of the same post causing immense loss to the Corporation. The said waiting list which was approved by the General Board of the Corporation ought Page 16 of 29 HC-NIC Page 16 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT not to have been cancelled without taking prior approval of the competent authority. It is also pertinent to note that at the relevant point of time there was no vacant post of the Clerk, the petitioner had issued fresh advertisement, which was detrimental to the administration of the Corporation. In this regard the petitioner has not produced any documentary evidence. Therefore being an Administrative Officer of the Corporation, he did not discharge his duties diligently. It reiterated what is stated in the finding of the report of inquiry officer at page No.92 of the petition."

6 Mr. Tanna would submit that Section 21 of the Bombay Primary Education Act, 1947 provides for the appointment of an Administrative Officer for every School Board. Section 21 reads as under:

"21. Administrative Officer (1) For every school board there shall be an Administrative Officer. He shall be the chief executive officer of the board; his powers and duties shall be as prescribed.

(2) The Administrative Officer shall be appointed by and shall be servant of the [a] [State] Government. He shall draw his pay and allowances from the [b] [State] revenues."

7 Section 22 of the Act, 1947 provides for the Delegation of Powers to appoint the Administrative Officer to certain authorized municipalities. Section 22 reads as under:

"22. Delegation of power to appoint Administrative Officer to certain authorized municipalities (1) Notwithstanding the provisions of Section 21, the [a] [State] Government may by notification in Official Gazette delegate the power to appoint an Administrative Officer to an authorised municipality which is a municipality constituted under the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925), and the annual expenditure of which on primary education is not less than Rs. 1,00,000 for three financial years immediately preceding the date of the notification. The Administrative Officer so appointed shall be the servant of the authorised municipality and shall draw his pay, allowances, provident fund, gratuity and pension from its primary education fund.

(2) The appointment of such Administrative Officer shall be made after inviting and considering the suggestions, if any, of the municipal schools Page 17 of 29 HC-NIC Page 17 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT board and with the approval of the [b] [State] Government. No such officer shall, save with the previous sanction of the [c] [State] Government, be removed from his office, reduced or suspended except by a resolution passed by at least twothirds of the whole number of Councillors of the authorised municipality.

(3) The qualifications, pay, allowances and the terms of employment of such Administrative Officer shall be in accordance with the regulations framed by the authorised municipality with the sanction of the '[State] Government."

8 According to Mr. Tanna, Section 22 has no application so far as the termination of the writ applicant from service is concerned. The learned counsel would submit that the writ applicant could have been dismissed from service without the previous sanction of the State Government. Mr. Tanna has invited the attention of the Court to the following averments made in the reply filed on behalf of the Corporation:

"8 With reference to para 3.4, the competent authority in this case, i.e. Standing Committee, had authorised the Municipal Commissioner by Resolution dated December 20, 1990, bearing reference No.1991 and another resolution dated 28th December 1990, bearing reference no.405 which are marked as AnnexureI and AnnexureII respectively, to take necessary action and start inquiry. The Standing Committee's resolution No.1991 and the resolution of General Board referred to above would go to show that the necessary steps were taken by respective authorities. Shri Ashwin Mehta was appointed on an Inquiry Officer, who at the relevant time was working as Deputy Commissioner (G). It is thus clear that necessary powers given to the Municipal Commissioner. This Honourable Court by order dated 27th December 1990 had vacated the interim relief in Special Civil Application No.8769 of 1990 and had continued the order of suspension after taking into consideration the provisions of Section 22 of the Bombay Primary Education Act. The Honourable Court has further directed the authorities to follow the proper procedure and it was further directed that no one shall be appointed in his place and the same was also complied with. Annexed hereto and marked as AnnexureIII is the copy of the order passed by this Honourable Court in Special Civil Application No.8769 of 1990. It therefore goes to show that the petitioner had enough opportunity to challenge every action of the Corporation and the authorities have acted bona fide in good faith and have given adequate opportunities to the petitioner."

Page 18 of 29

HC-NIC Page 18 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT "10 With reference to para 5.2, I deny the incorrect statements made therein. The petitioner who was placed under suspension by the competent authority for administrative and financial irregularities and after appointment of the inquiry officer, detailed inquiry was held and 8 out of 11 charges were proved. Complete inquiry was made after giving an opportunity of being heard the decision was taken. It is further submitted that since the petitioner was an employee of the Corporation, under the provisions of Section 22(2) of the Bombay Primary Education Act, necessary punishment can be inflicted on him but, in so far as procedure regarding punishment etc is concerned, he is covered under the BPMC Act and such procedure was followed in accordance with law.

11 With reference to paras 5(d) and 5(e) of the petition, I submit that historical background was stated therein with a view not to burden the record all orders are not produced before this Honourable Court as the order under challenge is the order of dismissal. Suffice it to say at this stage that the petitioner was placed under suspension. The Government in the meanwhile did not approve his appointment by order dated 20th April 1992 and by order dated 22nd May 1992 cancelled his appointment. The petitioner preferred Special Civil Application No.3607 of 1992 before the learned Single Judge of this Honourable Court andhe has also prepared Letters Patent Appeal No.327 of 1992. This Honourable Court, while disposing of the LPA, directed that the petitioner to make representation and decision was required to make representation and decision was required to be taken in a stipulated time period. The order of cancelling the appointment of Mr. Dabhi dated 22nd May 1992 has been revoked by the Commissioner by his letter dated 21.12.1992 in view of the order of the Government dated 28.09.1992, approving the appointment of Shri Dabhi with retrospective effect."

9 In such circumstances referred to above, the learned counsel appearing for the Corporation would submit that there being no merit in this writ application, the same be rejected.

10 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to any relief as prayed for in this petition.

11 Let me state at the outset that I am not convinced with the argument as regards the applicability of Section 22 of the Bombay Page 19 of 29 HC-NIC Page 19 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT Primary Education Act, 1947. In view of the explanation offered by the Corporation in the affidavitinreply and also having regard to the language employed in Section 22 and considering the fact that the applicant was ordered to be dismissed from service after a full fledged departmental inquiry, there was no need to obtain previous sanction of the State Government in this regard.

12 I take notice of a letter of the State Government in its Education Department of the year 1992 addressed to the Commissioner of the Surat Municipal Corporation declining to accord any ex post facto sanction for the appointment of the writ applicant and also for passing an order of suspension pending the departmental inquiry.

13 I take notice of the order passed by a Division Bench of this Court dated 28th August 1992 in the Letters Patent Appeal No.327 of 1992 filed by the writ applicant. The order reads as under:

"This Letters Patent Appeal is directed against the order of the learned single Judge in Special Civil Application No.3607 of 1992. The appellant herein is the petitioner in the Special Civil Application and the respondents herein are the respondents in the Special Civil Application.

N 26.11.1987, the appellant was appointed by respondents Nos.1 and 2 as an Administrative Officer. The letter of appointment was communicated by Memorandum dated 30.12.1987 to the appellant. On 9.3.1990, there was a resolution, as per the terms of which the appointment of the appellant was approved, subject to the obtaining of the approval from the 3rd respondent, as required by Section 22(2) of the Bombay Primary Education Act, 1947 (hereinafter referred to as "The Act"). Respondents 1 and 2 sought the approval on 15.5.1988 and there were subsequent communications, by way of reminders, on 18.8.1988 and 5.1.1989. Only on 20.4.1992 the 1st respondent informed the 2nd respondent that the appointment of the appellant was made without previous approval and there is no provision for giving subsequent approval and hence, the approval asked for could not be accorded. Acting upon this letter, the appellant has come to be ousted from service on 22.5.1992. This obliged the appellant to come to this Court, preferring the Special Civil Application.

Page 20 of 29

HC-NIC Page 20 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT The learned single Judge took note of the language of Section 22(2) of the Act and opined that without approval of the State Government, there could not be an appointment and hence, the decline on the part of the 3rd respondent to accord approval is justified. In this view, the learned Single Judge dismissed the Special Civil Application. As already noted, this Letters Patent Appeal is directed against the decision of the learned Single Judge.

We heard Mr.A.H. Mehta, learned counsel appearing for the appellant. We also heard Mr.P.G. Desai, learned counsel appearing for respondents Nos.1 and 2 and Mr. Dhaval C. Dave, learned Assistant Government Pleader, appearing for respondent No.3. We are convinced that, at this juncture, there is no need to express any opinion with reference to the power of the 3rd respondent to accord approval posterior to the very order of appointment. We find, the learned Single Judge has also observed that the State Government, in certain cases, might not have insisted for previous approval and might have given subsequent approval. There is one feature, which obliges us to direct the 3rd respondent to consider the question of according approval de novo on merits, and that is, though the approval was sought for as early as on 15.5.1988, the rejection of the same happened only on 20.4.1992, practically, after a lapse of 4 years. Servicewise, the appellant, certainly, has been placed in an unenviable position. In the peculiar facts and circumstances of the case, we find that the 3rd respondent could, as well, consider the question of approval, on merits, to meet the ends of justice and so as to obviate a situation of inequity being meted out to the appellant on a very technical ground.

Mr. A.H. Mehta, learned counsel for the appellant, submits that, as on date, his client is in occupation of the quarters allotted to him during the period of his employment and that position need not be disturbed until the representation to be made by his client is disposed of one way or the other and for an appropriate time after the communication of the decision thereon to his client. We think we can countenance this plea.

Thus, we propose to make and we do make the following order in this Letters Patent Appeal:

(i) The appellant shall make a representation, through respondents Nos.1 and 2, to the 3rd respondent, pleading for the approval of his appointment, which happened on 26.11.1987, within a period of two weeks from today;

(ii) If such a representation is made, the 3rd respondent shall consider it, on merits, without bringing in the technical aspect that the approval has not been asked for anterior to the very appointment; and render a decision thereon within a period of four weeks from the date of receipt of Page 21 of 29 HC-NIC Page 21 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT the representation by the 3rd respondent;

(iii) The decision of the 3rd respondent shall be communicated to the appellant and the appellant, if such a decision should be adverse to him, is at liberty to seek the process of law available to him; and

(iv) Until the decision of the 3rd respondent is communicated to the appellant and for a period of two weeks thereafter, the occupation by the appellant of the quarters alloted to him, shall be continued.

The Letters Patent Appeal stands disposed of accordingly, with no order as to costs."

14 It is not brought to the notice of this Court as to what happened to the representation which the writ applicant might have filed pursuant to the order passed by the Division Bench referred to above.

15 In any view of the matter, the argument as regards Section 22 of the Act should fail.

16 So far as the other contentions raised on behalf of the writ applicant are concerned, they are all in the realm of appreciation of evidence. After due consideration of the report of the inquiry, the disciplinary authority thought fit to order dismissal of the writ applicant from service. As an Administrative Officer, the writ applicant was expected to exercise higher standard of honesty and integrity. The writ applicant was obliged to take all possible steps to protect the interest of the Corporation and to discharge his duties with utmost integrity, honesty, devotion and diligence.

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 227 of the Constitution of India should not venture into the reappreciation 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 Page 22 of 29 HC-NIC Page 22 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 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.

19 This Court may interfere if the finding is wholly arbitrary and capricious based on no evidence which no reasonable person could have ever arrived at.

20 In State Bank of India and others vs. Narendra Kumar Pandey [(2013) 2 SCC 740], the Supreme Court, in paras 25 and 26, observed as under:

"25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a fullfledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well acceptable principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In State Bank of India and others v. Ramesh Dinkar Punde (2006) 7 SCC 212 : (2006 AIR SCW 5457), this Court held that the High Court cannot reappreciate the evidence acting as a court of Appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.

26. This court in State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723 held:

"7...Where there is some evidence, which the authority entrusted Page 23 of 29 HC-NIC Page 23 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that 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 especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the Inquiring Authority."

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;

(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;

Page 24 of 29

HC-NIC Page 24 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT

(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, 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."

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HC-NIC Page 25 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs21 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 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 Page 26 of 29 HC-NIC Page 26 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 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 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 Page 27 of 29 HC-NIC Page 27 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 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 caselaw 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 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:

"ArticleI 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 Page 28 of 29 HC-NIC Page 28 of 29 Created On Fri Jan 13 00:45:59 IST 2017 C/SCA/5205/1995 CAV JUDGMENT 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."

22 In the overall view of the matter, I have reached to the conclusion that no interference is warranted.

23 In the result, this writ application fails and is hereby rejected. Rule is discharged. The adinterim relief, if any, stands vacated.

(J.B.PARDIWALA, J.) chandresh Page 29 of 29 HC-NIC Page 29 of 29 Created On Fri Jan 13 00:45:59 IST 2017

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