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20. In the present case, the learned Single Judge has found that there has been a miscarriage of justice and has thus, used his discretion to remedy the same. The respondent was suspended from services on account of an incident that took place on 08.06.1983. The respondent is said to have misbehaved with the Regional Manager of the appellant and also with two other officers, who had allegedly attempted to pacify the respondent and asked him to maintain the decorum, on that occasion. The respondent is stated to have used derogatory language and threatened the Regional Manager. This version is disputed by the respondent who has alleged that the Regional Manager had infact used abusive and filthy language with him. After the respondent was suspended from services pending an inquiry into the incident of 08.06.1983, he was served with a chargesheet in October 1983. The chargesheet served on the respondent contained seven other charges (i.e. charges no. 1 to 7) which were unrelated to the incident of 08.06.1983. It has been the contention of the respondent that the said charges are mala fide and have been drawn up solely with the view to take punitive action against the respondent. The respondent has contended that said charges were an afterthought and related to his commuting outside the city of his posting without permission of the competent authority and to certain allowances claimed by the petitioner. It is asserted that no discrepancy or any complaint in regard to the subject matter relating to the said seven charges had ever been pointed out to the respondent. It is contended by the respondent that an inquiry into the said charges was premeditated at the instance of the then Regional Manager of the appellant who wanted the respondent to be removed from services. No complaint in regard to the said charges had ever been pointed out to the respondent earlier. The respondent has alleged that the complaints on which the seven new charges were framed were not supplied to the respondent in addition to other documents which had been sought for by the respondent at various stages. Although, the appellant has stated that the charges were based on internal reports/audit reports and verification, no document in this regard has been produced by the appellant. There is no credible answer from the appellant, as to how these charges came to be framed subsequent to the incident of 08.06.1983.

30. The only substantial charge that was required to be inquired into in the present case was with regard to the alleged misbehaviour of the respondent with his superior officer on 08.06.1983. The learned Single Judge has examined the inquiry proceedings and has come to the conclusion that the Inquiring Officer had erred in not considering the defense of the respondent. The respondent had alleged that the Regional Manager had infact used abusive language and the exchange of words that ensued on that occasion was provoked by the abusive language used by the Regional Manager. The respondent had also produced a witness who has deposed that he was present in the office of the Regional Manager at the material time. The evidence of this witness (DW-I) has been rejected by the Inquiry Officer on the ground that other witnesses had not stated that he was present on the occasion and he could not give the correct location of the office. The said witness had in his cross examination stated that the office of the Regional Manager was located at the third floor of the office building and subsequently corrected as the same as being on the second floor. The Disciplinary Authority and the Appellate Authority have accepted the findings of the Inquiring Officer. Indisputably, Charges Nos. 8 and 9 which relate to the allegation of the respondent misbehaving with his superior officers are substantial and serious charges. The Inquiring Officer has examined several witnesses who were present in the regional office of the appellant on 08.06.1983 including the officers with whom the respondent is alleged to have misbehaved. The evidence of respondent was also recorded. The Inquiring Officer has disbelieved the defence witness and relied on the evidence produced by the prosecution. In the present case, the learned Single Judge has proceeded to re-examine and re-appreciate the evidence and has come to a conclusion that the defence evidence has been erroneously rejected by the Inquiring Officer. The learned Single Judge has also erroneously held that the respondent was not cross examined. This, in our opinion, is outside the scope of judicial review under Article 226 of the Constitution of India. A bare perusal of the records indicates that this is not a case where there was no evidence against the respondent in respect of the alleged incident of 08.06.1983. Indisputably, there is material on record which could support the view that charge nos. 8 and 9 against the respondent were made out, the question as what weightage should be given to such evidence is not for this court to consider under Article 226 of the Constitution of India. A Constitution Bench of the Supreme Court in Union of India v. HC Goel: AIR 1964 SC 364 held that under :-

18. We must also place on record that on certain aspects even judicial review of fact is permissible. (E v. Secy. of State for the Home Deptt. [2004 QB 1044 : (2004) 2 WLR 1351 (CA)]"

39. The appellant has relied upon the decision of the Supreme Court in Mahendra Nissan Allwyns Ltd. v. M.P. Siddappa and Anr.: (1999) SCC (L&S) 1067, in New Shorrock Mills v. Maheshbhai T. Rao: (1996) 6 SCC 590 and in U.P. State Road Transport Corpn. v. Subhash Chandra Sharma and Ors.: (2000) 3 SCC 324 in support of their contention that dismissal of an employee on account of misbehaviour cannot be considered as disproportionate. In the case of Mahendra Nissan Allwyns Ltd. (supra), the charge against the respondent therein was that he had entered the factory premises regardless of the challenge by the security guard and alongwith the other workmen forcibly entered the administrative building and the office of the Deputy General Manger. The Deputy General Manager and the Manager (Personnel) of the appellant therein were abused in filthy language and were threatened by respondent therein. The respondent had also misbehaved in a similar manner with other executives of the appellant company. In the present case, there is no allegation that the respondent had entered any office building forcibly. There is also no allegation that the respondent had used abusive and filthy language as in the case of Mahendra Nissan Allwyns Ltd. (supra). In the case of U.P. State Road Transport Corpn. (supra), the charge against an employee was also serious. The employee was charged with having entered the cash room in a drunken state and having demanded cash from the Assistant Cashier. When the same was refused, the employee used abusive language and also threatened to assault the Assistant Cashier. This charge against the employee was proved. In addition to this charge, it was also established that the employee (being a Driver with the U.P. State Road Transport Corpn.) had unauthorisedly taken a bus of the appellant therein from a workshop to another place. As a punitive measure, the employee was removed from service. The Supreme Court held that the punishment awarded to the respondent therein was not disproportionate. Similarly, in the case of New Shorrock Mills (supra), the workman had entered the office of the Deputy Manager of the appellant therein and had abused him. The workman also threatened that the officers would not be safe outside the mill and that he did not care if he went to jail for murder of 4-5 officers. This charge having been established, the respondent therein was discharged from service. The Labour Court found that the punishment was excessive and harsh. The High Court also did not interfere with the decision of the Labour Court. In this case, the Supreme Court came to the conclusion that the punishment awarded was not disproportionate keeping in view the respondent‟s past record where the respondent had misconducted himself on several occasions and had also been punished.

40. In all the above cases relied upon by the appellant, the charges established against the employee were materially different from the misconduct attributed to the respondent in the present case. The charge in the present case is essentially that of a heated outburst. There is no allegation that the language used was abusive or filthy. Even if the charge is established, it only leads to the conclusion that on a single occasion, the temper of the respondent was frayed and he used derogatory language and acted in a undisciplined manner. Keeping in view the past service of the respondent, this, would not warrant a punishment of removal from service.