Gujarat High Court
Pradeepkumar Thakur vs State Bank Of India on 7 February, 2024
NEUTRAL CITATION
C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4369 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
=======================================
PRADEEPKUMAR THAKUR
Versus
STATE BANK OF INDIA & 1 other(s)
=======================================
Appearance:
MR SHAKTI JADEJA FOR MR SP MAJMUDAR(3456) for the
Petitioner(s) No. 1
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 1,2
=======================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/02/2024
ORAL JUDGMENT
Page 1 of 48
Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined
1. Being aggrieved and dissatisfied with the inquiry report, order passed by respondent No.1 and the order passed by respondent No.2, the present petition is filed by the petitioner under Article 226 of the Constitution of India for the following prayers:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside inquiry report dated 27.09.2005 (at ANNEXURE - F) as well as order dated 28.11.2006 passed by the disciplinary authority i.e. respondent No.1 herein (at ANNEXURE - G) and order dated 18.09.2007 passed by the appellate authority i.e. respondent No.2 herein (at ANNEXURE-I) and further be pleased to direct the respondent - Bank to reinstate the petitioner on his original post with all consequential benefits;
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of order dated 28.11.2006 passed by the disciplinary authority i.e. respondent No.1 herein (at ANNEXURE - G) and order dated 18.09.2007 passed by the appellate authority i.e. respondent No.2 herein (at ANNEXURE - I) and further be pleased to direct the respondent - Bank to reinstate the petitioner on his original post with all consequential benefits;
(C) Pass any such other and/or further orders that may be thought just and proper in the facts and circumstances of the present case;
2. Brief facts of the present case is that the petitioner was serving as Assistant with the respondent - Bank at Bhachau Branch, Kachchh with utmost honesty and sincerity and, Page 2 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined thereafter, he was transferred to Amreli Branch. During his service tenure at Bhachau Branch, a number of victims of the earthquake, which was occurred in January 2001 at Kachchh), had opened their Savings Bank Accounts at Bhachau Branch, District: Kachchh in order to receive the Government extended relief for reconstruction of their houses and disbursement of initial installments was made by Bhachau Branch at the concerned villages on 11.08.2003, 12.08.2002 and 23.08.2002 and final disbursement was released on 02.09.2003 at the branch itself.
2.1 That upon the reports of recovery of levy from constituents by the employees of the bank published in daily newspapers "Kachchh Mitra" and "Gujarat Samachar", the matter got probed into by the Bank and departmental actions were initiated against the number of employees. So far as the petitioner is concerned, he is innocent person and has no role to play whatsoever in the aforesaid incident.
2.2 The petitioner was asked to receive a charge-sheet alleging that he had committed serious misconducts when he was Page 3 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined working as Assistant at Bhachau Branch while making payments to the beneficiaries and certain irregularities were observed in his Leave Fare Concession. The representative of the petitioner gave defence statement and petitioner had given reply to the charge-sheet.
2.3 The departmental inquiry was initiated and pursuant to which the inquiry officer had submitted his report and upon inquiry report, the disciplinary authority - respondent No.1 had terminated / dismissed the petitioner from the service with superannuation benefits. The petitioner had preferred an appeal against the order passed by respondent No.1 and the appeal came to be dismissed by respondent No.2 and hence, the present petition.
3. Heard Mr.Shakti Jadeja, learned counsel for Mr.S. P. Majmudar, learned counsel appearing for the petitioner, Ms.Dharmishta Raval, learned counsel appearing for respondents.
4. Mr.Jadeja, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition and Page 4 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined has submitted that the impugned orders are contrary to law and evidence on record. He has submitted that the petitioner was serving as Assistant with respondent - Bank and he had not committed any misconducts as alleged in the charge-sheet.
According to Mr.Jadeja, learned counsel, during the course of the inquiry, no one confirmed that the recovery operation was held under the leadership of the petitioner and even the petitioner did not know about the recovery. He has submitted that the allegations made against the petitioner were concocted and got up as Shri K. K. Parmar, Cash Officer of the Branch has personal grudge against the petitioner and even during the inquiry, none of the cashiers stated that the petitioner had asked them for recovery or any excess cash was handed over to him. It is submitted by Mr.Jadeja, learned counsel that neither payment cashier nor the branch manager had stated that the petitioner intervened or advised to destroy the list and the credit voucher was not in the handwriting of the petitioner. He has submitted that the inquiry was conducted against the principles of natural justice as he was not given proper opportunity of hearing.
According to Mr.Jadeja, learned counsel that the charges leveled Page 5 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined against the petitioner are merely based on assumptions and presumptions and the appellate authority has not applied its mind to arrive at justifiable conclusion. He has submitted that none of the Branch Manager, Armed Guards or any management witnesses confirmed that the petitioner is guilty in the alleged misconduct, except Shri K. K. Parmar, whose statement is self-
contradictory and Mr.Parmar's deposition having several contradictions. He has submitted that the Branch Manager has confirmed that the petitioner was performing his duty on 02.09.2003 and he was also allotted the duty list. He has submitted that the impugned orders are against the principles of law and the same deserves to be quashed and set aside and the petition deserves to be allowed.
4.1 In support of his submissions, Mr.Jadeja, learned counsel has relied upon the following decisions:-
(1) Union of India Vs. H. C. Goei reported in AIR 1964 SC 364;
(2) Delhi Police Through Commissioner of Police and others Vs. Sat Narayan Kaushik reported in (2016) 6 SCC 303;
(3) Janardan Jaishankar Jokharkar and the answering Page 6 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined respondent Vs. State of Gujarat and others;
(4) S. Murugadhas Vs. State Bank of India (represented by Chief Regional Manager), Coimbatore and another reported in 1997 SCC OnLine Mad 557;
(5) Vijaykumar Muljibhai Jasani Vs. Gujarat State Road Transport Corporation, Rajkot reported in 1987 (1) GLH 195;
(6) Anand D. Lodariya Salt and Storage Pvt. Ltd and another Vs. State of Gujarat and others rendered Special Civil Application No.9757 of 2012 dated 28.12.2012;
(7) A. L. Kalra Vs. Project and Equipment Corporation of India Ltd reported in (1984) 3 SCC 316;
(8) Anil Kumar Vs. Presiding Officers and others reported in (1985) 3 SCC 378;
(9) State of Punjab and others Vs. Lalita reported in (2009) 10 SCC 748;
(10) Union Bank of India Vs. Biswanath Bhattacharjee reported in (2022) 13 SCC 329;
(11) Vinodrai Devjibhai Gohil Vs. State of Gujarat reported in 2022 (0) JX (Guj) 18 : 2022 (0) AIJEL-HC 243591;Page 7 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined
5. Ms.Raval, learned counsel appearing for the respondents has submitted that both the authorities have not committed any error of facts and law in passing the orders. She has submitted that when the petitioner was performing his duty as Assistant on 02.09.2003, the Branch Manager asked him to find out account number and other inquiries of illiterate customers and, therefore, he was feeding earlier day's vouchers. She has submitted that with regard to Leave Fare Concession, the petitioner himself had accepted that he had claimed Second Class A/c. fare for his wife and himself without travelling in train. According to Ms.Raval, learned counsel, the petitioner went to his Home Town in his own car and so the petitioner has committed grave misconduct by claiming such fare and, therefore, the present petition deserves to be dismissed.
5.1 In support of her submissions, Ms.Raval, learned counsel appearing for the respondents has relied upon the following decisions:-
(1) State of Karnataka and another Vs. N. Gangaraj reported in (2020) 3 SCC 423;Page 8 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined (2) Union of India and others Vs. P. Gunasekaran reported in (2015) 2 SCC 610;
(3) Bank Of India Versus T.Jogram reported in AIR 2007 SC 2793;
6. It is worthwhile referred to the decisions relied upon by learned counsel appearing for the respective parties.
6.1 In the case of H. C. Goel (supra), the Hon'ble Supreme Court has held and observed in para - 20 as under:-
"20. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi- judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this position in law."
6.2 In the case of Sat Narayan Kaushik (supra), the Hon'ble Page 9 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined Supreme Court has held and observed in para - 15, 16, 17, 19, 20 and 21 as under:-
"15. Coming to the first two submissions of the learned counsel for the appellant, we are of the view that High Court, in exercise of its writ jurisdiction, has power to interfere with the quantum of punishment imposed by the appointing authority in an appropriate case provided the High Court has taken into consideration the totality of the facts and circumstances of the case such as nature of charges levelled against the employee, its gravity, seriousness, whether proved and, if so, to what extent, entire service record, work done in the past, remaining tenure of the delinquent left etc. In other words, it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment.
16. In this case, we find that the learned Judges of the High Court did apply their mind to some of the factors for coming to a conclusion that this is an appropriate case where interference in the quantum of punishment is called for and accordingly converted the punishment of dismissal into punishment of compulsory retirement.
17. In our view, the finding on this issue appears to be just and proper and does not call for any interference in our appellate jurisdiction. We accordingly reject the first and second submissions.
19. Having regard to the peculiar facts of the case in hand, we are of the considered opinion that the High Court erred in holding that the respondent was not entitled to claim any service benefits from 02.07.2009. Instead it should have been held that the respondent was not entitled to claim any service benefits from the date of his suspension order i.e. from 22.06.2008. In our view, the impugned order of the High Court requires to be modified to this extent in favour of the appellants and against the respondent.
20. In view of foregoing discussion, the appeal succeeds and is accordingly allowed in part. The impugned order is modified to the extent mentioned above.Page 10 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined
21. In other words, it is directed that the respondent shall not be entitled to claim any service benefits from 22.06.2008. All other findings of the High Court are upheld. No costs."
6.3 In the case of Janardan Jaishankar Jokharkar and another (supra), this Court (Coram: Hon'ble Mr.Justice K. M. Thaker) has held and observed in para-15 as under:-
"15. On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and/or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the show cause notice or taking into account aspects not enumerated in the show cause notice and making them basis for the order also amount to violation of principles of natural justice. When an authority passes an order which is based on grounds or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the show cause notice. Not only this, but even the order of the original and competent authority also does not contain any such finding of fact at his stage in the order dated 11.2.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the show cause notice and/or which were not reflected in the original order impugned before that authority. The impugned order, on this ground, alone deserves to be set aside."Page 11 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 6.4 In the case of S. Murugadhas (supra), the High Court of Madras has held and observed as under:-
"Sastry award, Paras. 521(10A) and 521(2) - Misconduct - Dismissal - Proportionality of punishment - Appellante - employee of State Bank of India, dismissed after enquiry on charges of obtaining payment by submitting fabcirated trip sheet in respect of leave fare concession - Employees writ petition to quash the order of dismissal dismissed - Hence, the instant writ appeal - Division Bench, held, that the appellant had not played with any customer's account and for the misconduct committed by him deterrent punishment of dismissal is not called for - Proper punishment would be reinstatement in ervice with continuity of service but without back-wages"
6.5 In the case of Vijaykuamr Muljibhia Jasani (supra), this Court (Coram: Hon'ble Ms.Justice Abhilasha Kumari) has held and observed in paras - 10 11, 12, 13 and 19 as under:-
"10. The short question that is posed for consideration before this court in the present case is, whether the order passed by the Collector, Kutch, as confirmed by the order passed by the Secretary (Appeals), is sustainable in law, having been passed beyond the scope of the Show Cause Notice issued to the petitioners?
11. A perusal of the Show Cause Notice dated 29-6- 2010 makes it abundantly clear that this notice is only with regard to the breach of condition No.6 of the allotment order dated 15-10-2007, by which construction has to be put up on the land within a period of two years. Condition No.6 relates to the period of time in which the construction has to be made. On the other hand, conditions Nos.1,3,4,5 and 8, though pertain to the use of the land, do not have any relevance to the time-frame for putting up construction. As condition No.6 is the only condition, for Page 12 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined breach of which petitioner No.2 was asked to show cause, it is evident that no opportunity of hearing has been granted for breach of the other conditions, namely conditions Nos.1,3,4,5, and 8. Despite this, the Collector has directed that the land be vested in the State Government for breach of conditions Nos.1,3,4,5 and 8, in addition to condition No.6. This order has been confirmed by respondent No.1.
12. It is clear from a perusal of the Show Cause Notice, and the impugned orders passed by respondents No.2 and 1 that the said orders have been passed on material that is extraneous to,and beyond the scope of, the Show Cause Notice, without granting an opportunity of hearing to the petitioners regarding the alleged breach of the other conditions mentioned in the impugned order, apart from condition No.6. Admittedly, no Show Cause Notice has been issued to the petitioners for breach of the other conditions.
13. It is now a well settled legal position, expounded by several judgments, that an authority cannot consider the grounds that have not been stated in the Show Cause Notice, and nor can an order be passed beyond the scope of the Show Cause Notice.
19. The submissions advanced by the learned Assistant Government Pleader that all the conditions are interrelated, therefore, the Collector has not committed any illegality in passing the impugned order for the breach of the other conditions, over and above condition No.6, cannot be accepted. Nothing had prevented the Collector from mentioning the other conditions in the Show Cause Notice, if he was of the view that a breach of those conditions has occurred. However, this has not been done by the Collector at the time of the issuance of the Show Cause Notice. In the above circumstances, the Collector could not have passed the impugned order relying upon the alleged breach of the other conditions that have not been mentioned in the Show Cause Notice. Under the circumstances, the Collector has travelled beyond the scope of the Show Cause Notice while passing the impugned order dated 11-3-2011,that has been mechanically confirmed by respondent No.1, vide his order dated 9-7-2012."Page 13 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 6.6 In the case of Anil Kumar (supra), the Hon'ble Supreme Court has held and observed as under:-
"Labour and Services - Domestic enquiry - Enquiry report - Reasoned report essential more so where the enquiry results in loss of livelihood or attaches stigma - Absence of reasons shows non-application of mind.
Administrative Law - Natural justice - Quasi judicial enquiry
- Reasoned report of the enquiry essential."
6.7 In the case of Lalita (supra), the Hon'ble Supreme Court has held and observed as under:-
"Constitution of India - Art. 226 - Exercise of power - Non - application of mind - Writ petition challenging order of departmental appellate authority whereby employee's appeal against order of removal from service was dismissed - neither correctness of order of appellate authority considered on merits nor legality of order of removal from service considered by High Court while allowing the appeal - Matter remanded to High Court for fresh decision in accordance with law."
6.8 In the case of Biswanath Bhattacharjee (supra), the Hon'ble Supreme Court has held and observed in paras - 17, 20 as under:-
"17. Apart from cases of "no evidence", this court has also indicated that judicial review can be resorted to. However, the scope of judicial review in such cases is limited, T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC
255. . In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749. a three-judge bench of this court ruled that judicial review is Page 14 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority; it does not re-appreciate the evidence. The court held that:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict Page 15 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
18. Other decisions have ruled that being a proceeding before a domestic tribunal, strict rules of evidence, or adherence to the provisions of the Evidence Act, 1872 are inessential. However, the procedure has to be fair and reasonable, and the charged employee has to be given reasonable opportunity to defend himself (ref: Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762. a decision followed later in Punjab & Sind Bank v. Daya Singh, (2010) 11 SCC 233.). In Moni Shankar v. Union of India, (2008) 3 SCC 484. this court outlined what judicial review entails in respect of orders made by disciplinary authorities:
"17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere."
This court struck a similar note, in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 where it was observed that:
"If the enquiry has been fairly and properly held and the Page 16 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record".
19. The bank is correct, when it contends that an appellate review of the materials and findings cannot ordinarily be undertaken, in proceedings under Article 226 of the Constitution. Yet, from H.C. Goel onwards, this court has consistently ruled that where the findings of the disciplinary authority are not based on evidence, or based on a consideration of irrelevant material, or ignoring relevant material, are mala fide, or where the findings are perverse or such that they could not have been rendered by any reasonable person placed in like circumstances, the remedies under Article 226 of the Constitution are available, and intervention, warranted. For any court to ascertain if any findings were beyond the record (i.e., no evidence) or based on any irrelevant or extraneous factors, or by ignoring material evidence, necessarily some amount of scrutiny is necessary. A finding of "no evidence" or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority. However, the margin of appreciation of the court under Article 226 of the Constitution would be different; it is not appellate in character.
20. In the present case, the impugned judgment discloses scrutiny of the record. The same level of scrutiny is absent in the decision of the learned single judge. That the division bench conducted the kind of scrutiny that it did, cannot be a factor to hold its decision erroneous. In this context, it would be worth recollecting Bernard Schwartz that judicial review- of administrative decisions:
warrants a minimum level of scrutiny:
"If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated Page 17 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined fields. At the same time, the scope of judicial enquiry must not be so restricted that it prevents full enquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. It makes judicial review of administrative orders a hopeless formality for the litigant. ... It reduces the judicial process in such cases to a mere feint.'' 6.9 In the case of Vinodrai Devjibhai Gohil (supra), this Court (Coram: Hon'ble Mr.Justice Biren Vaishnav) has held and observed in paras - 11 and 14 as under:-
"11. To vilify the petitioner, a connection with bootlegger is sought to be made apparent through the submission of the learned AGP by relying on some questions being put to Rameshbhai and Jashiben to indicate that the petitioner knew that they both were bootleggers and that itself was enough to justify the charge. The Inquiry Officer also while recording a finding of guilt observed that it is established that the petitioner used the sim-card for personal gain and that using a bootlegger's sim card tantamounted to moral turpitude. This finding of the Inquiry Officer was clearly beyond the imputation in the chargesheet. The findings of the Inquiry Officer are therefore perverse.
14. For all the aforesaid reasons, the petition is allowed. The order dated 17.4.2020 is quashed and set aside. Consequentially so also the orders dated 3.7.2020 and 16.1.2021 set aside. The petitioner, on such orders being quashed, shall be entitled to all financial and other consequential benefits that may accrue on the order of penalty being quashed. Rule is made absolute accordingly. No order as to costs.
Direct Service is permitted."
6.10 In the case of T. Jogram (supra), the Hon'ble Supreme Court has held and observed in paras - 13, 14 and 15 as under:-
Page 18 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined "13. In B.C. Chaturvedi V/s. Union of India, 1995 6 SCC 749, a three Judge Bench of this Court held in paragraph 12 as under:-
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
14. In the case of Regional Manager, U.P.SRTC, V/s. Hoti Lal, 2003 3 SCC 605, this Court observed at p.614 scc as under:-
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of Page 19 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trust- worthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding the order of dismissal."
15. By now it is well-settled principle of law that judicial review is not against the decision. It is against the decision making process. In the instant case, there are no allegations of procedural irregularities/illegality and also there is no allegation of violation of principles of natural justice. Counsel for the respondent tried to sustain the allegation of malafide. He tried to assert that the respondent filed a case against the Chief Manager of Secunderabad Branch in 1996 and the enquiry initiated against the respondent is the fall out of malafide. We are unable to accept the bald allegations. The allegation of malafide was not substantiated. It is well settled law that the allegation of malafide cannot be based on surmises and conjectures. It should be based on factual matrix. Counsel also tried to assert the violation of principles of natural justice on the ground that the documents required by the respondent were not supplied to him. From the averment it is seen that the documents, which were sought to be required by the respondent, were all those bills submitted by the respondent himself before the authority. In these circumstances, no prejudice whatsoever was caused to the respondent."
6.11 In the case of P. Gunasekaran (supra), the Hon'ble Supreme Court has held and observed in para - 12 to 17 as under:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an Page 20 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 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 226/227 of 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 others V/s. S. Sree Rama Rao, AIR 1963 SC Page 21 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 1723, 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."
15. In State of Andhra Pradesh and others V/s. Chitra Venkata Rao, (1975) 2 SCC 557, the principles have been further discussed at paragraph-21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. V/s. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct Page 22 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined charged against him, the rule followed in criminal trials that[pic]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/s. Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on Page 23 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 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 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/s. 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 Page 24 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 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 another V/s. Rattan Singh, (1977) 2 SCC 491. To quote the unparalled and inimitable expressions:
"4. .... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, 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 Board V/s. T. T. Murali Babu, (2014) 4 SCC 108, these principles have been consistently followed adding practically nothing more or altering anything."
6.12 In the case of N. Gangaraj (supra), the Hon'ble Supreme Court has held and observed in paras - 13, 14 and 15 as under:-
Page 25 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined "13. In another judgement reported as Union of India v. P. Gunasekaran, (2015) 2 SCC 610 this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:
"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. On the other hand learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari, 2017 2 SCC 308 wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.
15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the Page 26 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law. "
7. Having considered the submissions made on behalf of both the sides coupled with the facts of the aforesaid decisions and the facts of the present case, it appears that the petitioner was serving as Assistant with respondent - Bank at Bhachau, Kachchh and during his service at Bhachau, a number of victims of earthquake occurred in January 2001, had opened Savings Bank Accounts for receiving the government extended relief for reconstruction of their house. It also reveals that on publishing a reports of recovery of levy in local newspapers, the departmental actions were initiated against number of the bank employees including the petitioner. Due to certain serious misconducts on the part of the petitioner, a charge-sheet came to be issued against the petitioner. It is alleged in the charge-sheet that while making payments to the beneficiaries, certain irregularities were found in his Leave Fare Concession and the departmental inquiry initiated against the petitioner and thereafter the Inquiry Officer Page 27 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined was appointed and he had submitted his report and on the basis of the inquiry report, the disciplinary authority has imposed punishment upon the petitioner from removal from service with superannuation benefits. The petitioner had preferred an appeal before the appellate authority and the appellate authority had dismissed the appeal and confirmed the order passed by the disciplinary authority.
8. Considering the averments made in the petition, it appears that the petitioner himself has made the following statement / fact :-
"On 02.09.2003, the petitioner was performed his duty as a clerk and was asked by the Branch Manager to sit on the computer to find out account number and other inquiries of illiterate customers / persons and, therefore, the petitioner was feeding previous day's vouchers which was allotted to the petitioner in his duty list by the Branch Manager. The said PC was only for balancing purpose and so after balancing of cash book, next day the petitioner was feeding all kinds of vouchers.
On that day also, the petitioner was feeding the previous day's Page 28 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined vouchers. Thus, the statement of Shri K. K. Parmar was self-
contradictory.
Shri G. M. Lamba, who was officiating as Branch Manager on 02.09.2003, deposed that nobody approached him complaining the short payment but one old man, Shri Shodha Darbar approached him regarding delay in receiving the payment.
On 02.09.2003, more than 200 payments were made and if such an incident would have taken place, many of them would have opposed this.
So far as the allegations regarding Leave Fare Concession (LFC) is concerned, the petitioner had accepted that he had claimed A/C II fare of his wife and himself without actually traveling by train. However, it is fact that the petitioner went home to his wife, she was staying with his brother's house, who was working in Indian Air Force, Jamnagar. Because no accommodation was available in Bhachau after the earthquake, the wife of the petitioner was residing at Jamnagar."Page 29 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined
9. It is worthwhile to refer to the decision of the State Bank Of India Versus Bela Bagchi reported in (2005) 7 SCC 435, wherein the Hon'ble Supreme Court has held and observed in para-15 as under:-
"15. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager V/s. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit in the case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."
10. It is also worthwhile to refer to the judgment of the Division Bench of this Court dated 06.01.2014 rendered in Letters Patent Appeal No.915 of 2013 wherein the Division Bench has observed in para-7 as under:-
7. It is a settled proposition of law by a catena of judgments of the Apex Court that the Court cannot usurp the jurisdiction of disciplinary authority and decide the quantum of punishment. The principle governing judicial Page 30 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined review of punishment inflicted on the delinquent by the disciplinary authority can be summed up as under;
(a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
(b) The Courts cannot assume the function of disciplinary / departmental authorities and to decide nature of function the quantum penalty is to be of punishment awarded, exclusively as within and this the jurisdiction of the competent authority;
(c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;"
11. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.
12. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-
"29. I may quote the observations of the Division Bench as under:- The doctrine of proportionality and Wednesbury rule evolved in England in Council of Civil Services Union Page 31 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined Vs. Minister for Civil Services (1983) 1 AC 768 and Associated Provincial Picture Houses Limited Vs. Wednesbury Corporation - 1948 2 All ER 680 have been applied by the Courts in India in various decisions. In Union of India Vs. C.G. Ganayutham - AIR 1997 SC 3387, the Supreme Court considered the ambit and scope of the doctrine of proportionality and Wednesbury rule in the light of various judicial pronouncements and laid down the following propositions: "
(1) To judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
Page 32 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined (4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms."
In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-
"It is a settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is Page 33 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
Further, it is a well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, is directed not against the decision, but is confined to the examination of the decision-making process.
Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgement for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:
"28. By 'proportionality' we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the Legislature or the Administrator so as to achieve the object of the legislation or the purpose of the Page 34 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined administrative order, as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties, or interests of persons keeping in mind the purpose which they were intended to serve. The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality."
"29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were 'necessary' - within Arts.8 to 11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art.14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp.677-
866)."
"66. It is clear from the above discussion that in India where administrative action is challenged under Art.14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority."
"67. But where, an administrative action is challenged as 'arbitrary' under Art. 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test Page 35 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors in to consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 at p. 111 :(AIR 1991 SC 1153 at . 1165), Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the Administrator under Art. 14 in the context of Administrative Law has to be judged from the stand point of Wednesbury rules. In Tata Cellular V. Union of India (1994) 6 SCC 651 at Pp. 679- 680: (1994 AIR SCW 3344 and at Pp.3369-70 In Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:: AIR 1996 SC 11); Indian Express Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691:
(AIR 1986 SC 515 at Pp.542- 43): Supreme Court Employees' Welfare Association V. Union of India (1989) 4 SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC 324 at p.358) and U.P. Financial Corporation V. GEM CAP (India) Pvt.Ltd. (1993) 2 SCC 299, at p. 307: (1993 SC 1435 at p.1439), while judging whether the administrative action is 'arbitrary' under Art.14 (i.e.otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always."
"71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Art.14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art.14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. Only in rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment."Page 36 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:
"The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go in to the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331, the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed:
"Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department / establishment in which the delinquent person concerned works."Page 37 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.
31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."
13. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-
"17. It is now well settled by a plethora of judgments of the Supreme Court that in exercise of its powers under Articles 226 and 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 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 Page 38 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined exercise of its powers under Articles 226 and 227 can only consider whether the inquiry held by the competent authority was in accordance with the procedure established by law, and the principles of natural justice,whether irrelevant or extraneous consideration and/or exclusion of admissible or material evidence or admission of inadmissible evidence being influenced the decision rendering it vulnerable.
21. In a very recent pronouncement in the case of Union of India and others v. P. Gunasekaran [2015(2) SCC 610], the Supreme Court in details has explained the position of law so far as the scope of interference in the matter relating to the disciplinary proceedings is concerned. I may quote the observations made by the Supreme Court from paras 12 to 20 as under:
"12. Despite the wellsettled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating 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 Page 39 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i). the finding of fact is based on no evidence.
13 Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). reappreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1, many of the above principles have been discussed and it has been concluded thus:
"7. .....The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably Page 40 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.Page 41 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 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 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.Page 42 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024
NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined
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 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:
Page 43 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined "4. ...... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ....."
17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.
18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:
"Article was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri P. Gunasekaran, provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. ...."
19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Page 44 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined 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."
14. In view of the above decisions and on perusal of the charge which apparently clears that the intention of the present petitioner is mala fide though he has not travelled in train and despite of that, he had produced such documents to encash of Leave Fare Concession and, therefore, he has committed grave misconducts. So far as the allegation that the respondent - bank has initiated departmental inquiry without there being any complaint/s on the part of the beneficiaries is concerned, it is relevant to note that the bank has initiated departmental inquiry on the basis of the press report published in the local Page 45 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined newspapers and on that basis the respondent - bank has initiated inquiry and after finding sufficient materials, it has issued show-
cause notice to the petitioner. Therefore, after considering all relevant materials and seriousness of the charge, the impugned order came to be passed by the disciplinary authority and subsequently, thereafter confirmed by the appellate authority and, while exercising the powers under Articles 226 and 227 of the Constitution of India, this Court has very limited scope to interfere with the findings recorded by the inquiry officer and after appreciating the documentary evidence and inquiry report, the punishment order was passed by the disciplinary authority and confirmed by the appellate authority.
15. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be Page 46 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproprtionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.
16. On perusal of the inquiry report of the inquiry officer and the order of the disciplinary authority, I am of the opinion that the punishment of dismissal inflicted on the petitioner vis-a-vis the proven misconduct is not so disproportionate as would shock the conscience of this Court warranting interference.
17. Considering the totality of facts, I am of opinion that the authority has rightly arrived at the conclusion that the petitioner was guilty of misconduct, which was sufficient to remove him from the service. This Court finds no reasons to interfere with the same either.
18. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, I am of the opinion that the appellate authority has recorded its findings after perusing and going through the materials on Page 47 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024 NEUTRAL CITATION C/SCA/4369/2008 JUDGMENT DATED: 07/02/2024 undefined record and, therefore, both the authorities have not committed any error in passing the impugned orders and hence, the present petition is devoid of merits and the same deserves to be dismissed.
19. For the foregoing reasons, this petition fails and is hereby dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith.
(HEMANT M. PRACHCHHAK,J) FURTHER ORDERS Mr.Jadeja, learned counsel appearing for the petitioner requests this Court that as per the impugned order passed by the disciplinary authority, the petitioner was removed from the service with all retiral and consequential benefits. In case, if the petitioner is entitled for the said benefits, the bank will consider the same and it will be paid to the petitioner within a period of three months from the date of receipt of the order.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 48 of 48 Downloaded on : Wed Feb 07 20:48:05 IST 2024