TMI Blog1995 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... rference is permissible only when the punishment/penalty is shockingly disproportionate. - C.A. 9830 OF 1995 - - - Dated:- 1-11-1995 - RAMASWAMY, K., JEEVAN REDDY, B.P. HANSARIA B.L., JJ. JUDGMENT This appeal and the companion appeal filed by the Union of India arise from the order of the Administrative Tribunal in O.A. No. 609 of 1986 dated March 14, 1989. Appellant's integrity, while he was working as Income-tax officer, had come under cloud. On an investigation made by the C.B.I., it had stated to the respondent that though the evidence collected during investigation disclosed that the appellant had assets disproportionate to his known source of income, as the evidence was not strong enough to lay prosecution under Section 5 (1) (e) of the Prevention of Corruption Act, 1947 [for short, `the Act'], the competent authority might proceed against the appellant in a departmental inquiry. In furtherance thereof on March 2, 1982 the appellant was served with the charge-sheet containing four specific charges for violating different conduct rules and misconduct of being in possession of property disproportionate to his known source of income. After giving reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not his assets. If these amounts are excluded, which indeed must be excluded, he is not in possession of disproportionate assets. The wife of the appellant is a teacher. The income from her salary and her gifts of the extent of Rs. 21,000/- require to be excluded from his assets. Therefore, the findings of the Tribunal on merits were not valid in law. While resisting the contention, the learned counsel for the Union argued that the Tribunal was not empowered to appreciate the evidence nor to consider the evidence on merits to reach a finding whether the appellant was in possession of disproportionate assets. The Tribunal went wrong in appreciating the evidence. The disciplinary authority had undoubted power and authority to impose punishment. On the facts found by the inquiry Officer and disciplinary authority that the appellant was in possession of the assets disproportionate to the known source of his income, the Tribunal was unjustified in interfering with the punishment of dismissal from service, and ordering for compulsory retirement, instead. Having regard to the respective contentions, the first question that arises for consideration is whether the order dismissing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of assets disproportionate to his known source of income is a misconduct. Section 5(1) (e) of the Act (which is equivalent to Section 13(1)(e) of the Prevention of Corruption Act, 1988) defines "criminal misconduct". A public servant is said to commit the offences of criminal misconduct if he or any person of his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account for. Thus, pecuniary resources or property disproportionate to his known source of income is a criminal misconduct. In the 1988 Act an explanation has been added to Section 13(1)(e) to explain that "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. The charged officer must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known source of income. If he cannot satisfactorily account thereof, he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourney, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in this type of cases. It is seen that the C.B.I. had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5 (1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decisions at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution. 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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. v. S.L. Abbas [(1993) 4 SCC 357], when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra Nagar Haveli v. H.P. Vora [(1993) Supp. 1 SCC 551], it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State bank of India Ors. v. Samarendra Kishore Endow Anr. [J] (1994) 1 SC 217], a Bench of this Court to which two of us (B.P. Jeevan Reddy B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur [(1972) 2 SCR 218]. It is true that in Bhagat Ram v. State of Himachal Pradesh Ors. [AIR 1983 SC 454], a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof. The Tribunal in this case held that the appellant had put in 30 years of service. He had brilliant academic record. He was successful in the competitive examination and was selected as a Class I Officer. He earned promotion after the disciplinary proceeding was initiated. It would be difficult to get a new job or to take a new profession after 50 years and he is "no longer fit to continue in government service". Accordingly, it substituted the punishment of dismissal from service to one of compulsory retirement imposed by the disciplinary authority. We find that the reasoning is wholly unsupportable. The reasons are not relevant nor germane to modify the punishment. In view of the gravity of the misconduct, namely, the appellant having been found to be in possession of assets disproportionate to the known source of his income, the interference with the imposition of punishment was wholly unwarranted. We find no merit in the main appeal which is accordingly dismissed with no order as to costs. C.A. No.3604 of 1988 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the High Courts, can be no ground to think that they have not to do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter. 4. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of dismissal, Article 21 gets attracted. And, in view of the inter-dependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case, 1970 (3) SCR 530, which thinking was extended to cases attracting ..... 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