HIGH COURT CANNOT ACT AS APPELLATE AUTHORITY IN THE DISCIPLINARY PROCEEDINGS

[Mr. M. GOVINDARAJAN]

In ‘Union of India V. P. Gunasekaran’ – 2014 (12) TMI 751 - Supreme Court of India  the respondent was working as Deputy Office Superintendent in Central Excise Department, Coimbatore.   He was given charge sheet on the following grounds:

• He came to the office on 23.11.1992 morning and signed the attendance register and left office without permission and came to the office the next day and affixed his initials in the departure column against the dated 23.11.1992 as if he is present in the office on that day;
• On 23.11.1992 at about 2.30 he impersonated himself as an Central Excise Executive Officer and unauthorisedly conducted passenger checks in a public transport bus at Ukkadam Bus stand, by usurping the powers of Executive Officer;
• On the same day he threatened a passenger bound for Kerala.

Disciplinary action was initiated against the respondent.   Simultaneously criminal case has also been filed against him.

In the disciplinary inquiry all the charges were proved and one due procedure the respondent was dismissed  from the service by order dated 10.06.1997.   The said order was challenged before the Central Administrative Tribunal (‘CAT’ for short).  During the pendency of original application before CAT the respondent was acquitted before the criminal case.  The CAT took the view that the respondent having been acquitted on identical set of charges, he could not be proceeded against in respect of the second and third articles of charge in the disciplinary proceedings.   However it cannot be said that the first charge is also part of the criminal prosecution.   On the evidence adduced, the Inquiring Authority has come to the conclusion that Article I has been proved taking note of the respondent’s letter dated 11.11.1992 addressed to the Collector of Central Excise when he was kept under remand.   This finding giving by the Inquiry Officer has been accepted by the disciplinary authority.  The CAT set aside the order of the disciplinary authority and remitted the case back to it with the directions to consider the quantum of punishment taking note of the conclusions of the  CAT and observations made.

The Department challenged the order before the High Court.   The High Court declined to interfere with the order of CAT.   The High Court held that the CAT was of the view that dismissal from service was not warranted for the said charge.   The High Court did not think that the view taken by CT either unreasonable or irrational which could be interfered.

The disciplinary authority, based on the directions of CAT, considered the case and satisfying himself that good and sufficient reasons exists for imposing upon him the penalty.  The modified the order of dismissal by compulsory retirement.  The respondent challenged the order of disciplinary authority before the CAT.  The CAT held that-

• It is for the disciplinary authority to decide in what way the punishment is to be imposed and CAT cannot act as an appellate court in such cases;
• It is clear that the respondent does not deserve any sympathy because he manipulated the records.   It is not a case of unauthorized absence.   The applicant after signing the attendance register left the office and yet he made attempt to show that he was present in the office for the whole day.   It amounts to falsification of the records and the conduct of the applicant shows that he was dishonest or he has not maintained the integrity as a government officer;
• Taking into consideration the gravity of the charges, the punishment imposed on the respondent is proper and the same is not outrageous not it shocks the conscience. 

The said order was challenged by the respondent before the High Court, Madras.  The High Court set aside the order of the CAT and held as below:

• While gone through the letter of the respondent, dated 11.12.1992 on which the Inquiry Officer has given his findings he brought to the notice of the Collector what was transpired on 23.11.1992, and there is no admission made by the petitioner.   Therefore the Inquiry Officer has not considered the letter in the proper perspective to arrive at the right conclusion;
• The disciplinary authority should have fixed the date of compulsory retirement from the date of issue of the order, instead of fixing the compulsory retirement from the date of order of dismissal;
• Except the letter of the respondent there is no other evidence and whatever evidence is required with regard to charges 2 and 3 for which the respondent has been acquitted in the criminal case, the punishment imposed on the basis of the above said criminal has to go;

On the above grounds the High Court set aside the order and further held that the salary payable to the respondent from the date of his compulsory retirement till the date of his superannuation has to be treated the reinstatement till the date of superannuation of the respondent with back wages and monetary benefits which shall be calculated and paid to him.  The terminal benefits and pension as applicable under the Rules shall be calculated and paid to the respondent.

Against this order the Department approached the Supreme Court.   The Supreme Court held that it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceeding, re-appreciating even the evidence before the enquiry officer.  The Supreme Court gave direction what should be followed by the High Court in exercise of the powers under Article 226/227 of the Constitution of India.  The High Court can only see whether-

• The enquiry is held by a competent authority;
• The enquiry is held according to the procedure prescribed in that behalf;
• There is violation of the principles of natural justice in conducting the proceedings;
• The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
• The authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
• 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;
• The disciplinary authority had erroneously failed to admit the admissible and material evidence;
• The disciplinary authority had erroneously admitted in admissible evidence which influenced the findings;
• The findings of fact are based on no evidence.

Under Article 226/227 of the Constitution of India, the Supreme Court held that the High Court shall not-

• re-appreciate the evidence;
• interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with the law;
• go into the adequacy of the evidence;
• go into the reliability of the evidence;
• interfere, if there be some legal evidence on which findings can be based;
• correct the error of fact however grave it may appear to be;
• go into the proportionality of punishment unless it shocks its conscience.

The Supreme Court  found that the disciplinary authority, in this case, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge and the CAT having endorsed the view of the disciplinary authority, it was not open to High Court to re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

The Supreme Court held that it was not open to the High Court to go into the proportionality of punishment so long as the punishment does not shock the conscience of the Court.   In this 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 assessments.  The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service.  In the first round of litigation before the CAT the Tribunal had entered a finding that “on the evidence adduced the inquiring authority have come to the conclusion that Article I has been proved taking note of the respondent’s letter, dated 11.11.1992 addressed to the Collector of Central Excise when he was kept under remand.  The same was accepted by the disciplinary authority and endorsed by CAT.  The High Court also endorsed the said finding.  Thus the finding on Charge No.1 has attained finality.

The order of dismissal was converted to compulsory retirement by the disciplinary authority after observing the directions of CAT.  This findings, the Supreme Court held, cannot be reopened in the subsequent round of litigation at the instance of the respondent.   The  CAT has come to the conclusion that the punishment of compulsory retirement was not outrageous or shocking to its conscience.  It was not open to High Court to interference with the disciplinary proceedings from stage one and direct reinstatement of the respondents with back wages.

The Supreme Court set aside the order of High Court and confirmed the order passed by the disciplinary authority and endorsed by CAT.