Rajasthan High Court - Jaipur
Ram Gopal Kumawat vs . United Commercial Bank & Anr. on 26 October, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.1429/1998 Ram Gopal Kumawat Vs. United Commercial Bank & Anr. Date of Order ::::: 26th October, 2015 PRESENT HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr. A.K. Bhandari Sr. Counsel with Mr. Vaibhav Bhargav, for the petitioner.
Mr. Yash Sharma, for the respondent-Bank.
**** Aggrieved of the penalty of dismissal from service, as a consequence of departmental proceedings, inflicted by the Disciplinary Authority, vide order dated 10th March, 1995, and subsequent order dated 25th February, 1998, passed while implementing the orders of the High Court in D.B. Special Appeal (Writ) No. 474/1994; the petitioner has instituted the present writ petition with a prayer to quash and set aside the impugned order of punishment aforesaid.
2. Shorn off unnecessary details, the skeletal material facts necessary for appreciation of the controversy are that the petitioner was appointed as Class-IV employee (Daftari-cum-Peon), at Ajmer Branch of United Commercial Bank (for short, 'the respondent-Bank'). It is pleaded case of the petitioner that his relative with oblique motives, instituted a criminal complaint on 26th April, 1978, for offence under Section 420, 406, 409, 467, 468 and 471 IPC, leading to registration of an FIR No.70/1978, at Police Station Kotwali, Ajmer. The petitioner was placed under suspension on 6th February, 1981, owing to pendency of the criminal case in which he was ultimately acquitted by the Judicial Magistrate No.1, Ajmer on 23rd May, 1991. The respondent-Bank on 30th January, 1992, served him with a charge-sheet for (a) he failed to inform the Bank of his arrest and the criminal case, and (b) he accepted cash from the customer of the Bank unauthorizedly. Enquiry officer was appointed on 15th April, 1994.
3. Learned Senior counsel for the petitioner, Mr. A. K. Bhandari, reiterating the pleaded facts and grounds of the writ application, asserted that during the course of investigation, the petitioner was arrested on 25th June, 1979 and was released on bail on 26th June, 1979. The fact of his arrest was informed to the respondent-Bank on 27th June, 1979, while he reported for duty and was called upon to furnish the reasons in writing. The petitioner addressed a representation claiming promotion to the post of Assistant-Cashier-Cum-Godown Keeper for he was successful in the written test and the interview held by the respondent-Bank. The request was declined, vide communication dated 27th December, 1980, since a charge-sheet was filed by the police against the petitioner, and therefore, he was not eligible for promotion.
4. It is pleaded case of the petitioner that he was not accorded proper opportunity to defend himself in the enquiry proceedings. The Disciplinary Authority, vide impugned order dated 10th March, 1995, concurred with the findings arrived at by the enquiry officer on the charges levelled against the petitioner, while returning a finding of guilt. The act of the petitioner was allegedly found prejudicial to the interests of the Bank for the gross mis-conduct as per Clause 19.5(j) and 19.7(d), of the Bipartite Settlement dated 19th October, 1966; and was inflicted with a penalty of dismissal from service with effect from the date of the order.
5. According to the learned counsel, the petitioner's services were appreciated for mobilizing deposits to the tune of Rs.two lacs. One Heera Lal Kumawat, a close relative of the petitioner, opened a Recurring Deposit Account with the respondent-Bank on 21st May, 1971 and he was required to deposit Rs.20/- per month. Since Heera Lal Kumawat was a Railway employee, posted at Gandhi Dham, Gujarat, he used to send money to the petitioner for deposit in the Bank. The petitioner filled in the Pay-in-slip-form and handed over the cash to the Cashier for deposit in the account of Shri Heera Lal Kumawat.
6. It is further contended that the matrimonial discord between Om Prakash (Brother of Heera Lal Kumawat) and his wife Smt. Sushila (sister of the petitioner), was the genesis of criminal proceedings instituted by Smt. Sushila, under Section 125 and 494 Cr.P.C. against Om Prakash, Heera Lal Kumawat and Ors.
7. As a measure of revenge and to settle the score; a criminal complaint was instituted leading to registration of an FIR for offence under Section 420, 406, 409, 467, 468 and 471 IPC. During the course of investigation, the petitioner was called for investigation by the Governmental Enforcement Agency on 30th August, 1978. He applied for leave on 30th August, 1978, as would be evident from Annexure-4, available on record. Similarly, on 25th June, 1979, the petitioner was again called for investigation and was arrested.
8. Be that as it may, the petitioner applied for two days leave, vide application dated 25th June, 1979, addressed to the Manager of the respondent-Bank (Annexure-5), which was sent Under Postal Certificate (UPC). The leave was sanctioned to the petitioner. The petitioner resumed his duties on his release from custody on bail, on 27th June, 1995. This fact was also informed, in writing, for his absence for two days from the Bank, in response to an enquiry by the then Manager,
9. According to the learned counsel, the petitioner successfully participated in the departmental examination for promotion to the post of Assistant Cashier-cum-Godown Keeper. However, promotion was denied to him in view of the charge-sheet that was filed by the police against the petitioner as would be evident from communication dated 27th December, 1980 (Annexure-10). Thus, the respondent-Bank was very much aware of pendency of the criminal proceedings against the petitioner. Moreover, vide judgment and order dated 28th May, 1991, the petitioner was honorably acquitted by the Court of Judicial Magistrate No.1, Ajmer.
10. The representation submitted to the respondent-Bank to revoke his suspension, having received no response, the petitioner instituted S.B. Civil Writ Petition No. 5969/1991. The High Court allowed the writ application, vide order dated 24th February, 1992, setting aside the suspension order. On an intra-court appeal No. 386/1992, preferred by the respondent-Bank, the operation of the order dated 24th February, 1992, was stayed. However, the stay order was modified on 20th November, 1992, with a direction to the respondent-Bank to pay full salary to the petitioner, and the intra-court appeal was dismissed for having become infructuous on 11th March, 1997.
11. Learned counsel would further submit that after a lapse of 13 years of the alleged incident of arrest of the petitioner on 25th June, 1979; the respondent-Bank served a charge-sheet dated 30th January, 1992 for (a), the petitioner did not inform the Bank about his arrest and pendency of criminal case, which amounts to suppression of material information, (b) for having accepted the cash for deposit in the Bank against the Bank Rules, which mandates that no employee, other than cash department staff, is authorized to accept cash from customer(s), and (c) by the acts aforesaid, the petitioner acted prejudicial to the interests of the respondent-Bank.
12. The charge-sheet issued to the petitioner was successfully challenged in S.B. Civil Writ Petition No.4558/1992, on the ground of inordinate delay of 13 years as well as in view of the fact that the petitioner was honorably acquitted by the competent Criminal Court. However, the order passed by the learned Single Judge dated 21st December, 1993, was subjected to intra-court appeal No. 474/1994 by the respondent-Bank. The intra-court appeal was admitted on 10th August, 1994, with an interim order permitting the respondent-Bank to go ahead with the enquiry but not to pass final order till further orders.
13. It is submitted that during the course of enquiry, the petitioner demanded several documents by his application dated 14th September, 1994 and the enquiry officer vide order dated 23rd September, 1994, directed the respondent-Bank to supply the relevant documents to the petitioner. However, by an order dated 3rd October, 1994, the enquiry officer ordered that it is not proper to supply documents to the petitioner for his defence. Moreover, the respondent-Bank pleaded that since the record was more than 10 years old and was not available, and therefore, the documents could not be supplied, as would be evident from the order-sheet dated 18th October, 1994. It is further contended that one of the witnesses of the respondent-Bank, (MW-4) M.P. Srivastav, admitted the fact that on 30th August, 1978, the petitioner gave him the letter marked as DW-1, wherein he applied for leave. Moreover, at the relevant time, i.e. 25th and 26th June, 1979, the petitioner did apply for leave and intimated the then Manager of the Bank about his arrest, namely, Shri R.K. Rastogi, who was a cited witness but was not examined. The enquiry report (Annexure-19) submitted on 7th March, 1995, which was never served on the petitioner, was taken into consideration and appears to be the basis for dismissal order of the petitioner dated 10th March, 1995.
14. However, the petitioner continued in service and was also furnished with an appreciation letter on 23rd August, 1997. It is only after the decision of the intra-court appeal on 22nd January, 1998, the respondent-Bank served a letter on 25th February, 1998, informing him that the Zonal Office of the Bank, has instructed the Regional Office to implement the order of the High Court dated 22nd January, 1998, leading to order dated 25th February, 1998, terminating the services of the petitioner.
15. The intra-court appeal aforesaid was ultimately allowed vide order dated 22nd January, 1998. The judgment and order passed by the learned Single Judge dated 21st December, 1993, quashing the charge-sheet dated 30th January, 1992; was set aside. It was further observed that in case the respondent-employee is punished he would always be free to challenge the same in accordance with law.
16. The action is also assailed for the petitioner was not supplied the relevant documents, which were refused on the pretext of non-availability after a lapse of time (10 years). Thus, violation of principles of natural justice is apparent on the face of the record. Further, the petitioner also did not act in violation the circular dated 8th December, 1971, for the same was not brought to his notice, which contemplated an information was necessarily to be furnished in the event of his arrest by the employee of the respondent-Bank.
17. The orders, dated 10th March, 1995 and 25th February, 1998, have been assailed for being illegal, arbitrary, unjust and violative of the principles of natural justice. Further, the enquiry proceedings were initiated after 13 years of the alleged incident for the petitioner was arrested on 25th June, 1979, though was acquitted in the crime on 25th August, 1991. Moreover, the respondent-Bank did not think it proper to initiate any enquiry against the petitioner since 1979, and it was only on 30th January, 1992, he was served with the charge-sheet. Reliance has been placed on the opinion in the case of State of M.P. Vs. Banni Singh: AIR 1990 SC 1308, Hari Prakash Vs. State: 1991 WLR 789, Dr. B.K. Chaturvedi Vs. State of Raj.: 1993 (1) WLC 47.
18. Referring to the charge-sheet, learned Senior counsel emphasized, that the petitioner was charged for a minor misconduct as contemplated under Clause 19.7(d), for which the penalty has been provided under Clause 19.8 of Chapter XIX which provides for DISCIPLINARY ACTION AND PROCEDURE THEREFOR, and therefore, the penalty of dismissal from service is disproportionate to the alleged misconduct. Reliance has been placed on the opinion in the case of Raghubir Singh Vs. Haryana Roadways: (2014) 10 SCC 301.
19. Learned counsel has also invited the attention of this Court to certain documents, which have been placed on record along with the rejoinder, to canvass that the signed vouchers were handed over to the Cashier for deposit and thus, it was Cashier who deposited the money.
20. It is further contended that the disciplinary authority was not competent to impose the penalty. Moreover, the penalty has been inflicted as a consequence of disciplinary proceedings wherein the petitioner was not accorded an opportunity to appear before the disciplinary authority, in violation of the cardinal principles of natural justice. The petitioner was also not allowed an opportunity to cross examine the witnesses on the documentary evidence brought on record as MD-11 and MD-12, and therefore, the impugned action of the respondent-Bank, deserves to be quashed and set aside on all counts.
21. In response to the notice of the writ application, the respondent-Bank has filed its counter affidavit, raising preliminary objections, for the petitioner has approached this Court under Article 226 of the Constitution of India, without availing of the alternative remedy of appeal as provided under Clause 19.14 of Chapter XIX contemplating for DISCIPLINARY ACTION AND PROCEDURE THEREFOR.
22. Learned counsel would further submit that the reply to the writ application was filed on 10th October, 2001, specifically pleading the objection of availability of alternative remedy. Further, the writ application cannot be entertained only on the ground of admission and its pendency before this Court since 1998. Reliance has been placed on the opinion of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors.:(2008) 12 SCC 675, Jaldai Shramik Kalyan Sangh Vs. State of Rajasthan and Ors.:(1997) IILLJ 161 (Raj.), Harish Aggarwal Vs. Bank of India and Ors.: 2013 (4) SCT 396 (P&H), wherein the opinion of the Hon'ble Supreme Court in the case of Nagaraj Shivarao Karjagi Vs. Syndicate Bank Head Office, Manipal and Anr.: 1991(3) SCC 219, was relied upon.
23. It is further urged that the scope of interference in the matters of departmental enquiry, is very limited. Moreover, the proportionality of a punishment is again a matter within the domain of the employer. The petitioner did not appear before the enquiry officer in the departmental proceedings as well as disciplinary authority, where he could have placed the relevant documents, which have been placed on record with the writ application and could have raised all the arguments/contentions, which are sought to be raised in the present writ application. Therefore, the matter calls for no interference in exercise of writ jurisdiction under Article 226 of the Constitution of India. The petitioner was accorded ample opportunity to participate in the enquiry proceedings. As a consequence of a full fledged enquiry the penalty has been imposed which calls for no interference.
24. Learned counsel appearing on behalf of the respondent-Bank Mr. Yash Sharma, reiterating the contents of the counter affidavit to the writ application, asserted that the issue of delay as well as departmental enquiry conducted on same set of facts and charges, which was the subject matter of the trial before the jurisdictional Criminal Court, is no more open for consideration before this Court afresh, in view of the judgment and order dated 22nd January, 1998, rendered by the Division Bench of this Court. The writ proceedings initiated by the petitioner in the earlier round of litigation, challenging the charge-sheet dated 30th January, 1992, and initiation of departmental proceedings on the ground of delay, stands concluded by order dated 22nd January, 1998 in the intra-court appeal.
25. According to the learned counsel, the Division Bench while allowing the intra-court appeal of the respondent-Bank, on 22nd January, 1998, quashed the judgment and order passed by the learned Single Judge, wherein the charge-sheet dated 30th January, 1992, was quashed. It was further held that in case the petitioner was awarded punishment, he would be free to challenge the same in accordance with law.
26. It is also contended on behalf of the respondent-Bank that the petitioner suppressed the information of his arrest in crime No. 70/1978, contrary to the terms of employment and circular dated 8th December, 1971, wherein he was obliged to inform the Bank about his arrest on 25th June, 1979. The petitioner accepted cash on various dates from Shri Hira Lal Kumawat in R.D. Account No.1099, maintained at Purani Mandi, Ajmer, in breach of the rules of business and prejudicial to the interests of the Bank, and thus, the conduct was a gross negligence, involving or likely to involve the Bank in a serious loss as per clause 19.5 (j) and 19.7 (d) of the Bipartite settlement.
27. The petitioner, for reasons best known to him, did not respond to the charge-sheet dated 30th January, 1992, served on him. The charge-sheet was successfully challenged by way of institution of writ application No. 4558/1992, on the ground of delay in initiation of the departmental proceedings. However, on an intra-court appeal No. 474/1994, the order passed by the learned Single Judge, quashing the charge-sheet, was set aside; with the observations vide order dated 22nd January, 1998.
28. Referring to the interim order dated 10th August, 1994, learned counsel submitted that the respondent-Bank was allowed to proceed with the departmental enquiry but was restrained from making any final order. By another order dated 13th September, 1994, a direction was made to conclude the departmental enquiry, within four months, reserving liberty to the petitioner to challenge the final order that may be passed as a consequence by the disciplinary authority. The petitioner was directed to co-operate in the proceedings and not to seek adjournment(s). On an application of the respondent-Bank on 18th January, 1995, time was extended by two months to conclude the enquiry. The disciplinary authority, enclosing a copy of the enquiry report submitted on 7th March, 1995, called upon the petitioner to submit his reply and also afforded an opportunity of personal hearing on 10th March, 1995. The petitioner, neither filed any reply to the inquiry report nor co-operated in the enquiry proceedings and also did not appear before the disciplinary authority on 10th March, 1995. The disciplinary authority passed the order dated 10th March, 1995, imposing the penalty of dismissal from service w.e.f. 11th March, 1995.
29. The alleged prejudice suffered by the petitioner for non supply of the relevant documents, by the respondent-Bank, is absolutely misconceived and misleading for the reason that no letter was ever written by the petitioner to the respondent-Bank on 25th June, 1979, a copy of which was demanded by him and the grievance raised for its non-supply. The findings arrived at by the enquiry officer as well as the conclusion by the disciplinary authority, in no uncertain terms held that no such letter was even received by the petitioner to the respondent-Bank. Had there been any written letter, the petitioner would have obtained a receipt of the same from the Bank to that effect. Moreover, the petitioner did not furnish the copy of the said letter to the Enquiry officer, which has been enclosed with the writ application, as Annexure-26, which is allegedly stated to be dispatched to the Bank 'Under Postal Certificate' (UPC), thus, the petitioner has not approached this Court with clean hands.
30. The witness namely Shri R.K. Rastogi was dropped for the same would have occasioned further delay in conclusion of the disciplinary proceedings for which the Division Bench of this Court has already fixed a time frame. There is sufficient material available on record on the basis of which the enquiry officer as well as disciplinary authority have arrived at the findings and conclusion. The communication dated 16th June, 1980 (MD-12) is a response to the query made by the Head Office, Jaipur, by MD-11, seeking details of arrest of the petitioner from the concerned Branch Manager. Thus, MD-12 was a reply to the effect that no such record was available. Thus, the fact that the petitioner never made any application seeking leave on 25th June, 1979, again substantiats the stand of the respondent-Bank.
31. Further, the petitioner was twice called its witnesses for their cross-examination but on account of non-cooperation of the petitioner, the proceedings were adjourned whereas the enquiry was to be concluded within the time frame, as directed by the High Court. Therefore, the petitioner cannot be allowed to take advantage of his own wrong. The objections which are sought to be raised by the petitioner in the instant writ application were never raised before the enquiry officer and/or disciplinary authority for reasons best known to the petitioner.
32. Merely because in the attendance register the word Leave has been used would not prove the fact that the petitioner did inform the respondent-Bank of his arrest. Moreover, the circular dated 8th December, 1971, specifically obliged the employees of the Bank to furnish information about their arrest. Furthermore, the then Branch Accountant had noted on the circular under his signatures to the effect that staff to note. Be that as it may, a presumption has to be drawn of circulation and knowledge of the circular to the employees of the Bank as contemplated under Section 114 (e) of the Indian Evidence Act. The circular cannot be treated as directory rather it is mandatory. Further, the letter dated 30th August, 1978, did not improve the case of the petitioner any further for the arrest of the petitioner was almost after ten months from the date of the aforesaid letter. Aside, the letter bears an endorsement by the Bank Officer whereas there is no such endorsement in existence on the letter dated 25th June, 1979, enclosed by the petitioner with the writ application.
33. It is further urged that charge No.2 with reference to acceptance of cash from the customer of the Bank, is against the provisions of the manual of instructions Vol. 1 (Cash), which specifically contemplates that members of the cash department are alone authorized to accept the cash from the public to prevent any unauthorized acceptance of cash by any other officer from the customer irrespective of the fact of being a relative or not.
34. Learned counsel would further submit that enquiry proceedings are maintainable even in the event of acquittal in the criminal case and law in this regard is no more res-integra. The competence of disciplinary authority is evident in the face of Bipartite Settlement. Further, the terms 'Divisional Manager' and 'Regional Manager', are interchangeable designations, and as such disciplinary authority was very much competent.
35. The disciplinary authority called upon the petitioner vide show cause notice dated 7th March 1995, to appear for personal hearing on 10th March, 1995. The petitioner received the show cause notice on 7th March, 1995 itself, however, he did not respond to the same on 10th March, 1995, rather prayed for time of 15 days, whereas the Division Bench of this Court specifically directed the petitioner not to seek any adjournment. Since last opportunity was already allowed to the respondent-Bank to conclude the enquiry proceedings, and therefore, there was no occasion to adjourn the proceedings any further.
36. Referring to the text of Clause 19.5 (j) along with 19.7(d), learned counsel emphasized that it is Clause 19.5(j), which provides penalty for gross misconduct and the penalty includes 'dismissal from service'. Moreover, the action in issuing charge-sheet was upheld by the Division Bench of this Court. The petitioner acted prejudicial to the interests of the Bank and the act also reflected gross negligence leading to initiation of criminal proceedings against the petitioner and adverse to the interests of the Bank causing loss of reputation to the Bank. Therefore, the punishment of dismissal imposed, is perfectly proportionate and calls for no interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India.
37. In order to fortify his submissions, the learned counsel for the respondent-Bank has relied upon the opinion of the Hon'ble Supreme Court in the case of State of Andhra Pradesh and Ors. Vs. Chitra Venkata Rao: 1975 (2) SCC 558, Union of India (UOI) vs. P. Gunasekaran: 2015 (2) SCC 610, V. Ramana Vs. A.P.S.R.T.C. and Ors.:2005(7) SCC 338, Union of India (UOI) and Ors. vs. G. Annadurai: 2009 (13) SCC 469 and State Bank of India and Ors. Vs. Narendra Kumar Pandey: 2013 (2) SCC 740.
38. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
39. At the outset, it will be appropriate to deal with the preliminary objections raised by the learned counsel for the respondent-Bank as to availability of alternative remedy and issue of delay. By now it is settled law that the High Courts have a very wide power in the matter of issuing writs and the remedy is discretionary. The High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. It is only in extraordinary circumstances, such power may be exercised on a conclusion arrived at for there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
40. In the case of U.P. State Spinning Co. Ltd. (supra), the Hon'ble Supreme Court held thus:
11. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extra-ordinary jurisdiction.
12. Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., Sangram Singh v. Election Tribunal, Kotah and Ors.,:Union of India v. T.R. Varma, State of U.P. and Ors. v. Mohammad Nooh, and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
41. In the case of P. Gunasekaran(supra), the Hon'ble Supreme Court once again explaining the scope and interference in service matters and disciplinary proceedings, which was only permissible in case of perversity, held thus:
12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. I 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 226/227of the Constitution of India, shall not venture into re-appreciation 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;
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). re-appreciate 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 Ors.v.S. Sree Rama Rao: AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus: (AIR pp.1726-27, para 7).
7....The High Court is not constituted in a proceeding Under Article226of 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 Article226to 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 Article226of the Constitution.
15. In State of Andhra Pradesh and Ors.v.Chitra Venkata Rao: (1975) 2 SCC 557, the principles have been further discussed at paragraph-21 to 24, which read as follows: (SCC pp. 561-563)
21.The scope of Article226in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court inState of A.P.v.S. Sree Rama Rao. 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 Article226of 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 Article226over 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 Article226.
22.Again, this Court inRailway Board, representing the Union of India, New Delhiv.Niranjan Singhsaid that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. InNiranjan Singhcase this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the Respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the Respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23.The jurisdiction to issue a writ of certiorari Under Article226is 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. SeeSyed Yakoobv.K.S. Radhakrishnan.
24.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the Respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.
16. These principles have been succinctly summed-up by the living legend and centenarian Justice V.R. Krishna Iyer in State of Haryana and Anr.v.Rattan Singh: (1977) 2 SCC 491. To quote the unparalleled and inimitable expressions: (SCC p.493, Para 4).
4....in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. of course, 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.
17. In all the subsequent decisions of this Court upto the latest in Chennai Water Supply and Sewarage Boardv.T.T. Murali Babu: (2014) 4 SCC 108. these principles have been consistently followed adding practically nothing more or altering anything.
42. Chapter XIX, which contemplates DISCIPLINARY ACTION AND PROCEDURE THEREFOR, under Rule 19.14, provides for the authorities who are to pass the original orders or dispose of the appeal and the names of such officers or the body who are empowered, are to be published on the bank's notice board. At this juncture, it will be gainful to note the text of Clause 19.14, which reads thus:
19.14. The Chief Executive Officer or the principal officer in India, of a bank, or an alternate officer at the Head Office or principal office appointed by him for the purpose, shall decide which officer(s) shall be empowered to hold enquiry and take disciplinary action in the case of each office or establishment. He shall also decide which officer or a body higher in status than the Officer authorised to take disciplinary action shall be empowered to deal with and dispose of any appeals against orders passed in disciplinary matters. The names of such officers or the body who are empowered to pass the original orders or hear and dispose of the appeal shall, from time to time, be published on the bank's notice board. Such appellate authority shall, if the employee concerned is so desirous, in a case of dismissal, hear him or his representatives before disposing of the appeal. In cases where hearings are not required, and appeal shall be disposed of within two months from the date of receipt thereof. In cases where hearings are required to be given and are requested for, such hearings shall commence within one month from the date of receipt of the appeal and shall be disposed of within one month from the date of conclusion of such hearings. The period within which an appeal can be preferred shall be 45 days from the date on which the original order has been communicated in writing to the employee concerned.
43. A glance of the Clause 19.14 as extracted hereinabove, would reveal that it contemplates for disciplinary action, enquiry officer or the body, for the purpose including Appellate Authority. The Clause also contemplates an opportunity of personal hearing by the Appellate Authority, if so desired, by the employee including his representative. Thus, it is more than evident that there exists an Appellate Authority before which the remedy of appeal could have been availed of by the petitioner.
44. From a glance of the order dated 10th March, 1995, by which the petitioner was dismissed from the bank's services, it is reflected that the charge-sheet dated 30th January, 1992, was served upon him but he did not submit any reply in his defence. The enquiry was conducted and the enquiry report was submitted on 7th March, 1995. A copy of the enquiry report along with show cause notice was served on the petitioner on the even date, according him an opportunity of personal hearing on 10th March, 1995 at 10.00 AM, but the petitioner did not appear before the Disciplinary Authority, and consequently order dated 10th March, 1995, was passed terminating the services of the petitioner.
45. The writ proceedings resulting into judgment and order passed of the learned Single Judge dated 21st December, 1993, wherein the charge-sheet dated 30th January, 1992, was quashed and set aside, were subject matter of intra-court appeal before the Division Bench of this Court. On 5th April, 1995, on an interim application No.198/1995, made by the petitioner, the Division Bench of this Court, made an order, which reads thus:
The appellant Bank has not been able to show that there was any charge of mis-appropriation of amount in the domestic enquiry. The domestic enquiry had been permitted to be proceeded further by this Court by way of interim relief. Now the domestic enquiry has been concluded and the respondent has been held guilty. However, as stated above, it is an undisputed position that in the domestic enquiry there was no charge of mis-appropriation of any amount of the Bank. In view of this position, we do not think it proper that the operation of the judgment and order dated 21.12.93 passed by the learned Single Judge, should be stayed. The effect of the judgment and order passed by the learned Single Judge quashing the charge sheet dated 30.1.92, should be given much more so because it would not be in public interest that the Bank may pay full salary to the respondent without taking any work from him.
In the result the Application dated 30.3.95 filed on behalf of the respondent is allowed. The appellant Bank is directed to allow the respondent Ram Gopal Kumawat to resume his duty. However, it is clarified that this order will be subject to the final result of the Appeal. The respondent shall file an undertaking in this court that in case the appellant succeeds in the Appeal and it is ordered that the respondent was not entitled to be reinstated in service, he shall refund the entire amount received by him as may be directed by the court. The undertaking, as stated above, shall be filed by the respondent within a period of 15 days from today. A copy thereof shall be served upon the Advocate of the appellant Bank.
46. The intra-court appeal No. 474/1994 was finally adjudicated upon vide judgment and order dated 22nd January, 1998, holding thus:
Learned counsel for the appellants contends that the Settlement between the Bank and its workmen, dated 19.10.96 governs disciplinary action and its procedure. As per clause 19.3(c) the Management has given a right to proceed against the delinquent employee under the provisions set out in clause 19.11 and 19.12 after his discharge in criminal case. In other words, after acquittal in criminal case a departmental enquiry could proceed against the delinquent employee for the charges of mis-conduct. It is contended that charges in the departmental enquiry are not identical which were subject-matter in the criminal case and looking to the nature of allegations dropping of enquiry is not justified. Mr. Garg further pointed out that after acquittal in the criminal case, the petitioner reinstated and all arrears of salary of the period during which he remained under suspension have been paid to him.
As stated earlier, in the departmental enquiry the respondent-employee has been found to be guilty of charges and punishment has been awarded.
The law is well settled on the question that even after acquittal in a criminal case a departmental enquiry is not a bar. It is also well settled that criminal proceedings and departmental enquiry can proceed simultaneously. In criminal cases, standard of proof to prove the guilt is required to be beyond reasonable doubt, but is not so in a departmental enquiry. In State of Karnataka and another versus T.venkataramanappa: (1996) 6 SCC 455 and Union of India and another versus Bihar Lal Sidhana: (1997) 4 SCC 385, the Apex Court of the Country, after considering various judgments, has categorically held that initiation of departmental enquiry after acquittal in a criminal case is permissible. In the instant case, as per the Rule, the Management had a right to proceed in departmental enquiry against the delinquent officer after his acquittal in a criminal case. Further, in the instant case, as Mr.Garg pointed out the charges in the departmental enquiry are not the same as there are additional charges also which were not subject-matter in the criminal case.
Thus, taking into consideration the seriousness of the charges and the law on the point, we are of the opinion that the view taken by the learned Single Judge is not sustainable. Consequently, the impugned judgment of learned Single Judge dated 21.12.93 is set aside. In departmental enquiry if punishment is awarded, the respondent is always free to challenge the same in accordance with law.
The appeal is allowed as indicated above. However, there shall be no order as to costs in the facts and circumstances of the case. We also make it clear that the amount towards salary paid to the respondent shall not be recovered by the Management.
47. From the materials available on record, it is evident that the petitioner neither responded to the charge-sheet as well as the inquiry report, which was served on 7th March, 1995, nor did he avail of the opportunity of personal hearing accorded to him to appear on 10th March, 1995 at 10.00 AM at the office of the Disciplinary Authority, leading to order of dismissal dated 10th March, 1995.
48. The petitioner rather submitted an application dated 30th March, 1995 in the intra-court appeal aforesaid whereupon an order was made in his favour for reinstatement with the conditions detailed out therein as would be evident from the order dated 5th April, 1995. While taking note of the fact that the domestic enquiry has been concluded holding the petitioner guilty; the impugned judgment passed by the learned Single Judge dated 21st December, 1993, wherein the charge-sheet dated 30th January, 1992; was quashed. However, the petitioner was left a liberty to avail of the remedy in accordance with law in case he was awarded any punishment as a consequence of departmental enquiry. The Division Bench further observed that the amount of salary paid to the petitioner, shall not be recovered by the Management.
49. In view of the adjudication made by the Division Bench of this Court, the respondent-Bank was within its right while instituting the departmental proceedings in accordance with the provisions set out in Clause 19.11. and 19.12 after his discharge in criminal case. The issue as to whether departmental proceedings can be instituted even after discharge/acquittal in the criminal case is no more res-integra in view of a catena of judgments delivered by the Hon'ble Apex Court of the land.
50. The issue of proportionality of penalty fell for consideration by the Hon'ble Supreme Court in the case of Raghubir Singh Vs. General Manager, Haryana Roadways: 2014 (10) SCC 301, wherein the Hon'ble Supreme Court, held thus:
32. Further, assuming for the sake of argument that the unauthorised absence of the appellant is a fact, the employer is empowered to grant of leave without wages or extraordinary leave. This aspect of the case has not been taken into consideration by the employer at the time of passing the order of termination. Therefore, having regard to the period of unauthorised absence and facts and circumstances of the case, we deem it proper to treat the unauthorised absence period as leave without wages. In our view, the termination order is vitiated since it is disproportionate to the gravity of misconduct alleged against him. The employment of the appellant workman with the respondent is the source of income for himself and his family members livelihood, thereby their liberty and livelihood guaranteed under Article 21 of the Constitution of India is denied as per the view of this Court in its Constitution Bench decision in Olga Tellis v. Bombay Municipal Corpn.14 wherein it was held as under: (SCC p. 572, para 32)
32. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.
The appellant workman is a conductor in the respondent statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, the impugned award of the Labour Court and the judgment and order of the High Court are liable to be set aside.
51. In the case of Raghubir Singh (supra), the Hon'ble Supreme Court, dealt with the award passed by the Labour Court, holding the termination of the appellant therein (Raghubir Singh), as illegal and invalid and further directed for reinstatement with 60% back wages which was quashed and set aside by the High Court of Punjab and Haryana remanding the case back to the Labour Court for fresh adjudication in the light of the applicability of the provisions of Article 311(2)(b) of the Constitution of India and the letters patent appeal was declined. The issue was considered by the Hon'ble Supreme Court with reference to delay in raising of the industrial dispute as well as the termination order which was found in violation of the mandate of Article 14, 16, 19 and 21 of the Constitution of India besides other statutory right.
52. In the case of Chitra Venkata Rao (supra), a three judges Bench of the Hon'ble Supreme Court explaining the scope of Article 226 of the Constitution of India, while dealing with departmental enquiry, held thus:
21. The scope of Article226in dealing with Departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of Andhra Pradesh v. S. Sree Rama Rao: [1963]3SCR1 25, 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 offence is not established unless proved by evidence beyond reasonable (sic) 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 Article226of 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 Article226over 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 derision by some consideration 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 Article226.
53. In the case of G. Annadurai (supra), the Hon'ble Supreme Court taking note of the fact that there was no appearance on behalf of the respondent therein (G.Annadurai), while considering earlier opinion in the case of Deenanath Santram, held thus:
10. It is pointed out that the decision in Union of India v. Dinanath Shantaram Karekar1 on which the High Court has placed reliance has no application to the facts of the present case. It is pointed out that on conclusion of enquiry show-cause notice was served by a publication in the newspaper and all possible efforts have been taken. Ample opportunities have been granted to the respondent which he failed to avail. It is, therefore, submitted that the decision in Dinanath case1 is not applicable to the facts of the case.
11. There is no appearance on behalf of the respondent when the matter is called in spite of service of notice.
12. The factual scenario shows that ample opportunities have been given to the respondent in order to enable him to effectively participate in the proceeding. He has failed to avail those opportunities. That being so the Division Bench of the High Court ought not to have interfered with the order of the learned Single Judge which according to us is irreversible. The appeal is therefore allowed and the impugned judgment is set aside.
54. In the case of V. Ramana (supra), the Hon'ble Apex Court of the land reiterating the applicability of wednusbury principles in the course of judicial review in the matter of penalty imposed, held thus:
8. In Om Kumar v. Union of India6, this Court observed, inter alia, as follows:
27. The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of proportionality to legislative action since 1950, as stated in detail below.
28. By proportionality, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality. (SCC pp. 399-400, paras 27-28) * * *
37. The development of the principle of strict scrutiny or proportionality in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of strict scrutiny. In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spycatcher case [Attorney General v. Guardian Newspapers Ltd. (No. 2)7] (AC at pp. 283-284), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd.8 Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. of State for Home Deptt., ex p Simms9 the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in R. v. Lord Saville, ex p A10 [All ER (870, 872) CA]. In all these cases, the English courts applied the strict scrutiny test rather than describe the test as one of proportionality. But, in any event, in respect of these rights Wednesbury rule has ceased to apply.
38. However, the principle of strict scrutiny or proportionality and primary review came to be explained in R. v. Secy. of State for the Home Deptt., ex p Brind11. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organisations which were proscribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organisations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a voice-over account, paraphrasing what they said. The applicants claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the common law and that, even in the absence of the Convention, English courts could go into the question (see pp. 748-49) whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations and that the courts were not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it.
Lord Templeman also said in the above case that the courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that in terms of the Convention any such interference must be both necessary and proportionate (ibid. pp. 750-51).
39. In a famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case11. Where convention rights were in question the courts could exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:
The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.
(SCC pp. 402-04, paras 37-39) * * *
67. But where an administrative action is challenged as arbitrary under Article 14 on the basis of Royappa12 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is rational or reasonable and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council13 (SCC at p. 111).] Venkatachaliah, J. (as he then was) pointed out that reasonableness of the administrator under Article 14 in the context of administrative law has to be judged from the standpoint of Wednesbury rules. In Tata Cellular v. Union of India14 (SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India15 (SCC at p. 691), Supreme Court Employees Welfare Assn. v. Union of India16 (SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd.17 (SCC at p. 307) while judging whether the administrative action is arbitrary under Article 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always.
* * *
69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of arbitrariness of the order of punishment is questioned under Article 14.
(SCC p. 411, paras 67 & 69) * * *
71. Thus, from the above principles and decided cases, It must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment. (SCC p. 412, para 71) (emphasis in original)
9. In B.C. Chaturvedi v. Union of India18 it was observed: (SCC p. 762, para 18)
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
10. In Union of India v. G. Ganayutham19, this Court summed up the position relating to proportionality in paras 31 and 32, which read as follows: (SCC pp. 478-80)
31. The current position of proportionality in administrative law in England and India can be summarised as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury4 test.
(2) The court would not interfere with the administrators decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU5 principles.
(3)(a) As per Bugdaycay20, Brind11 and Smith21 as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decisionmaker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedom as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury4 and CCSU5 principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21, etc. are involved and not for Article 14.
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of proportionality. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to irrationality, there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in outrageous defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain Ranjit Thakur22.
11. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case4 the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
55. In the instant case at hand, the petitioner was accorded ample opportunity by the enquiry officer in the enquiry proceedings conducted. The disciplinary authority while serving a copy of the enquiry report on 7th March, 1995, called upon for his response and also accorded an opportunity of personal hearing, which was scheduled to be held on 10th March, 1995. The petitioner for reasons best know to him, did not respond to the enquiry report as well as did not appear before the disciplinary authority on 10th March, 1995. Thus, the facts of the case at hand are different and distinguishable from the opinion referred to and relied upon and has no application to the facts of the case of the petitioner.
56. From the materials available on record, it is also reflected that the petitioner was furnished with all the documents, which were available with the respondent-Bank but for his application seeking leave owing to his arrest on 25th June, 1979, and the related documents. The then Manager of the Branch was not examined and was dropped for the respondent-Bank was directed to conclude the enquiry within a time frame by the Division Bench of this Court and the petitioner was seeking adjournment on one or the other pretext inspite of a direction to cooperate in the enquiry proceedings. The very fact that the petitioner did not respond to the enquiry report served on him while calling upon for his response and was also afforded an opportunity of personal hearing further proves that the fact that the respondent-Bank conducted the enquiry proceedings in accordance with the procedure affording ample opportunity of defence to the petitioner during the course of enquiry as well as by the disciplinary authority while considering the matter for imposing of a penalty. The defence which is put forth in the instant writ application was not pleaded by the petitioner before the enquiry officer, no reply was filed to the charge-sheet. No relationship was disclosed before the enquiry officer, to lay a factual foundation, for the alleged false prosecution launched against him.
57. In the case of Narendra Kumar Pandey (supra), dealing with the issue of maintainability of the writ petition in the face of availability of alternative remedy where penalty of dismissal was inflicted after a full-fledged enquiry, the Hon'ble Apex Court of the land, held thus:
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 full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well-accepted 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 SBI v. Ramesh Dinkar Punde5 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 A.P. v. S. Sree Rama Rao6 held: (AIR pp. 1726-27, para 7)
7. 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 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.
27. This Court in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup7 held that where a workman intentionally refuses to participate in the inquiry, he cannot complain that the dismissal is against the principles of natural justice. Once the inquiry proceeds ex parte, it is not necessary for the inquiring authority to again ask the charged officer to state his defence orally or in writing. We cannot appreciate the conduct of the charged officer in the instant case, who did not appear before the inquiring authority and offered any explanation to the charges levelled against him but approached the High Court stating that the principles of natural justice had been violated.
58. In the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors. (supra), the Hon'ble Apex Court of the land, while dealing with the issue of maintainability of writ application under Article 226 of the Constitution of India, after admission held that dismissal of writ application after admission is not bar for availability of existence of alternative remedy, the Hon'ble Apex Court of the land under paragraph 38, held thus:
38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari1 that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal. But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case1, AIR p. 331)
2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed.
(emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.
59. At this juncture, it will also be relevant to consider the text of Clause 19.5 to 19.8 of Chapter XIX, which contemplates DISCIPLINARY ACTION AND PROCEDURE THEREFOR, reads thus:
19.5. By the expression gross misconduct shall be meant any of the following acts and omissions on the part of an employee:
(a) engaging in any trade or business outside the scope of his duties except with the written permission of the bank;
(b) unauthorised disclosure of information regarding the affairs of the bank or any of its customers or any other person connected with the business of the bank which is confidential or the disclosure of which is likely to be prejudicial to the interests of the bank;
(c) drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank;
(d) wilful damage or attempt to cause damage to the property of the bank or any of its customers;
(e) wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior;
(f) habitual doing of any act which amounts to minor misconduct as defined below, habitual meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions censure or warnings have been administered or an adverse remark has been entered against him;
(g) wilful slowing down in performance of work;
(h) gambling or betting on the premises of the bank;
(i) speculation in stocks, shares, securities or any commodity whether on his account or that of any other persons;
(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;
(k) giving or taking a bribe or illegal gratification from a customer or an employee of the bank;
(l) abetment or instigation of any of the acts or omissions above-mentioned.
19.6. An employee found guilty of gross misconduct may:
(a) be dismissed without notice; or
(b) be warned or censured, or have an adverse remark entered against him; or
(c) be fined; or
(d) have his increment stopped; or
(e) have his misconduct condoned and be merely discharged.
19.7. By the expression minor misconduct shall be meant any of the following acts and omissions on the part of an employee:
(a) absence without leave or overstaying sanctioned leave without sufficient grounds;
(b) unpunctual or irregular attendance;
(c) neglect of work, negligence in performing duties;
(d) breach of any rule of business of the bank or instruction for the running of any department;
(e) committing nuisance on the premises of the bank;
(f) entering or leaving the premises of the bank except by an entrance provided for the purpose;
(g) attempt to collect or collecting moneys within the premises of the bank without the previous permission of the management or except as allowed by any rule or law for the time being in force;
(h) holding or attempting to hold or attending any meeting on the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force;
(i) canvassing for union membership or collection of union dues or subscriptions within the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force;
(j) failing to show proper consideration, courtesy or attention towards officers, customers or other employees of the bank, unseemly or unsatisfactory behaviour while on duty;
(k) marked disregard of ordinary requirements of decency and cleanliness in person or dress;
(l) incurring debts to an extent considered by the management as excessive.
19.8. An employee found guilty of minor misconduct may:
(a) be warned or censured; or
(b) have an adverse remark entered against him; or
(c) have his increment stopped for a period not longer than six months.
60. A glance of the text of 19.5 (j) would reveal that the expression 'gross misconduct' includes any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss and the penalty of 'dismissal without notice' has been specifically provided under clause 19.6 for an employee, who is found guilty of 'gross misconduct'. The act of the petitioner in receiving the money from Hira Lal Kumawat for deposit in the account of Hira Lal Kumawat with the respondent-Bank; would definitely fall within the ambit of the 'misconduct' as contemplated to 19.5 (j), punishable with any of the penalty as provided under clause 19.6.
61. The expression minor misconduct as contemplated under clause 19.7 (d), which refers to breach of any rule of business of the bank or instruction for running of any department; refers to the misconduct in discharge of duties which the employee is obliged to perform in accordance with the rules of business of the bank or instructions for running of any departmental. Neither the petitioner was entitled to receive the money from Hira Lal Kumawat nor was obliged to deposit the same in the ordinary course of transaction/business of the bank. Therefore, the act of the petitioner has been rightly construed to be an act of 'gross misconduct' as contemplated under clause 19.5 (j). Moreover, the matter is not to be examined by this Court in exercise of power of judicial review as if an appeal against the order passed by the departmental authorities.
62. The petitioner was accorded ample opportunity by the enquiry officer. The Disciplinary Authority while serving a copy of the enquiry report on 7th March, 1995, called upon for his response and also accorded an opportunity of personal hearing, which was scheduled to be held on 10th March, 1995. The petitioner for reasons best know to him, did not respond to the enquiry report as well as did not appear before the Disciplinary Authority on 10th March, 1995.
63. From the materials available on record, it is also reflected that the petitioner was furnished with all the documents, which were available with the respondent-Bank but for his application seeking leave owing to his arrest on 25th June, 1979, and the related documents. The then Manager of the Branch was dropped for the respondent-Bank was directed to conclude the enquiry within a time frame by the Division Bench of this Court and the petitioner was seeking adjournment on one or the other pretext inspite of a direction to cooperate in the enquiry proceedings. The very fact that the petitioner did not respond to the enquiry report served on him while calling upon for his response and he was also afforded an opportunity of personal hearing further proves that the fact that the respondent-Bank conducted the enquiry proceedings in accordance with the procedure affording ample opportunity of defence to the petitioner during the course of enquiry as well as by the Disciplinary Authority while considering the matter for imposition of the penalty. The defence which is put forth in the instant writ application was not pleaded by the petitioner before the enquiry officer, no reply was filed to the charge-sheet. No relationship was disclosed before the enquiry officer for alleged false prosecution launched against him.
64. For the reasons and discussions aforesaid, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.
65. Ordered accordingly.
66. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA)J. PcgAll corrections made in judgment/order have been incorporated in the judgment/order being emailed. P.C.Gupta, P.S