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TMI Blog1995 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... erent conduct rules and misconduct of being in possession of property disproportionate to his known source of income. After giving reasonable opportunity and conducting inquiry, the Inquiry Officer submitted his report on January 28, 1984 holding the charges to have been proved. After consultation with the Union Public Service Commission on March 11, 1985, the appellant was dismissed from service by order dated October 29, 1986. The Tribunal after appreciating the evidence upheld all the charges having been proved but converted the order of dismissal into one of compulsory retirement. The appeal was filed by the delinquent officer challenging the findings on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with punishment imposed by it. Shri Krishnamani, learned senior counsel for the appellant, raised three-fold contention. It is firstly urged that a public servant's possession of assets disproportionate to the known source of his income is not defined to be a `misconduct' under the Civil Service (Classification & Control) Appeal Rules. There is abnormal delay in laying the charges. Despite the pendency of inquiry, the appellant was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , instead. Having regard to the respective contentions, the first question that arises for consideration is whether the order dismissing the appellant from service is invalid in law for non-supply of the inquiry report. True, in Ramzan Khan's case, a Bench of three Judges to which one of us (K. Ramaswamy, J.) was a member, had held that the delinquent is entitled to the supply of the inquiry report. It was contended from the appellant therein that after Amendment to Article 311(2) of the Constitution by Constitution [42nd Amendment] Act, 1976, the need to supply the inquiry report was obviated. Rejecting the contention, it was held that the supply of the copy of the inquiry report is inconsistent with fair procedure and non-supply thereof violates the principles of natural justice. Therefore, copy of the inquiry report is required to be supplied to the delinquent officer. However, it was held that the said ratio was prospective in operation. The judgment therein was rendered on November 20, 1990. A question thereafter had arisen whether the ratio would be applicable to the order passed earlier to the judgment. On reference to the Constitution Bench, to which two of us (K. Ramaswa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice, pecuniary resources or property disproportionate to his known source of income. If he cannot satisfactorily account thereof, he is said to have committed criminal misconduct. No doubt it s a presumptive finding but that finding is based on three facts. Being a public servant, if at any time, during the period of his office, he is proved to have been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known source of income, he is enjoined to satisfactorily account for the same. If he fails to account for, he commits misconduct. Therefore, as in a prosecution laid under Section 5(1)(e) of the Act (equivalent to Section 13(1)(e) of 1988 Act), a public servant is liable to punishment. The need to make this misconduct expressly a part of enumerated items of misconduct under Central Civil Services, CCA Rules is obviated. The ratio in A.L. Kalra v. Project & Equipment Corpn. [(1984 (3) SCC 316] has no application to the facts in this case. Therein, the misconduct alleged was failure of the appellant to refund the advance taken from the Corporation. His omission was charged to be a misconduct. The question there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 re- appreciate the evidence and to arrive at its own independent fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority. It is, therefore, difficult to go into the question whether the appellant was in possession of property disproportionate to the known source of his income. The findings of the disciplinary authority and that of Inquiry Officer are based on evidence collected during the inquiry, They reached the findings that the appellant was in possession of Rs.30,000/- in excess of his satisfactorily accounted for assets from his known source of income. The alleged gifts to his wife as stridhana and to his children on their birthdays were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf. It is true that a three-judge Bench of this Court in Krishanand's case (supra) held in para 33, that if the excess was comparatively small (it was less than 10% of the total income in that case), it would be right to hold that the assets found in the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 454], a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu [AIR 1989 SC 1137], a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court. while exercising the jurisdiction under Article 136 of the Constitutions, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted. We find no merit in the main appeal which is accordingly dismissed with no order as to costs. C.A. No.3604 of 1988 Consequently, the appeal of the Union of India is allowed. The order of the Tribunal modifying the punishment is set side and that of the disciplinary authority is maintained. In the circumstances parties to bear their own costs. J U D G M E N T HANSARIA, J. I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets the case. The first of these relates to the power of the High Court. The to do "complete justice", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as dispropotionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case commonly known as Bank Nationalisation case, 1970 (3) SCR 530, which thinking was extended to cases attracting Article 21 in Maneka Gandhi vs. Union of India. AIR 1978 SC 597, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram vs. State of Himachal Pradesh, 1983 (2) SCC 442 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it. 5. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert section 11A in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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