TMI Blog2020 (4) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held by the Hon ble Apex Court hereinabove. This Court is not interfering with the finding recorded by the enquiry officer but interfering with the quantum of punishment of dismissal from services by quashing and setting it aside - In consequence thereof, the order passed by the disciplinary authority and the appellate authority are quashed to the extent of quantum of punishment. The matter is remitted before the disciplinary authority to take fresh decision on the quantum of punishment within a period of three months from the date of receipt of copy of the order - Appeal allowed by way of remand. - L.P.A No. 463 of 2018 - - - Dated:- 7-4-2020 - Hon ble The Chief Justice And Hon ble Mr. Justice Sujit Narayan Prasad For the Appellant : Mr. Bhanu Kumar, Advocate For the Respondents : Mr. Sudarshan Srivastava, Advocate JUDGMENT PER: SUJIT NARAYAN PRASAD, J. 1. The instant intra court appeal is against the order dated 18.07.2018 passed by learned Single Judge in W.P.(S) No.1414 of 2018, whereby and whereunder the order of dismissal passed by the disciplinary authority has been declined to be interfered with. 2. The brief facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry report on 29.09.2014, who had found some charges proved against the petitioner and in consequence thereof, the disciplinary authority vide order No.01 dated 08.01.2015 passed the order of dismissal from service against the delinquent. The writ petitioner/appellant challenged the order of his dismissal before the appellate forum but the appellate forum had dismissed the appeal. Thereafter, the order of dismissal was challenged before this Court by filing W.P.(S) No.1414 of 2018 under Article 226 of the Constitution of India, wherein the learned Single Judge dismissed the writ petition vide order dated 18.07.2018 against which the present appeal has been preferred. 3. Learned counsel for the appellant/writ petitioner has agitated the ground of procedural lapses to the effect of appointment of second enquiry officer after charges having not been proved by the first enquiry officer, which according to the learned counsel for the appellant/writ petitioner is not permissible. Altogether six charges have been levelled against the appellant/writ petitioner but only three charges have been proved and the charges are not so serious, warranting passing the order of dismissal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority by passing order of dismissal which has also been confirmed by the appellate forum and if this Court will exercise the power conferred under Article 226 of the Constitution of India by showing any interference with the impugned decision, it will nothing but re-appreciation of the evidence and if that would be done, this Court will become the court of appeal. It has been submitted on merit, that the allegation of absence for one day cannot be read out in isolation but by asking his son to perform his duty in his place is serious one, therefore, contention which has been raised with respect to the quantum of punishment, is not fit to be accepted. So far as issue pertaining to pendency of criminal case, submission has been made that the criminal case although has been instituted under the Negotiable Instrument Act but after compounding of the said offence, it will be treated to be acceptance of the charges and, therefore, when the enquiry officer has found the charges proved on this head, it cannot be said to be minor one. So far as the charges levelled against the appellant/writ petitioner with respect to making alteration in the Government quarters and taking water su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mselves 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22) . In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 : (AIR 2015 SC 545, Para 13), this Court held as follows: 13. Despite the well-settled 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 inquiry officer. The finding on Charge I was accepted by the disciplinary authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of your duty through your son Arun Rai. Thus your act shows gross negligence and also dereliction from your duty. You are, therefore, called upon to show cause as to why you should not be punished accordingly. Cause to be shown before the enquiry officer . Subsequent thereto, additional charges were served on 06.12.2007 which read hereunder as: Whereas you Sachidanand Rai while attached as Orderly Peon of the Court of Munsif, Ranchi, hav not furnished correct income tax return. Whereas you Sachidanand Rai is working as land broker being a government servant, purchased several piece land without giving any information to the department, in the name of your dependent family members. Whereas you Sachidanand Rai, have been occupying government quarter at Lakra Godown, Line Tank Road, Ranchi, whereupon you illegally constructed a house and took water connection as a result the allotment was cancelled and you have been directed to vacate the said quarter. Whereas you Sachidanand Rai, has not informed the department about several cases pending against you. Whereas you Sachidanand Rai, opened several bank account in several banks without giving an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rendered in the case of K.R. Deb vs. The Collector of Central Excise, Shillong reported in AIR 1971 SC 1447 came to conclusive finding for further enquiry for which one Sri Manoj Prasad, Additional Judicial Commissioner-IV, Ranchi had been appointed as enquiry officer. The second enquiry officer conducted the enquiry wherein the appellant/writ petitioner has filed additional show cause taking the plea of exoneration by the first enquiry officer, the evidence recorded by the first enquiry officer was again been appreciated by the second enquiry officer, who had found three charges proved while the other charges were not found to be proved, the Judicial Commissioner, Ranchi being the disciplinary authority has passed an order of dismissal from service. The appellant/writ petitioner assailed the same before the appellate forum i.e. this Court in the administrative side. The matter was placed before the standing committee wherein no interference had been shown with respect to the order of punishment for dismissal from services. 7. This Court is conscious about the scope of judicial review. So far as the issue on merit is concerned, it is a case wherein the petitioner has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge in the impugned order has recorded the finding with respect to the quantum by referring therein that the decision of quantum of punishment rest exclusively with the departmental authority and the Court can interfere in the matter only when it is found that punishment imposed upon the delinquent is so disproportionate to the charges framed and found proved that it shocks the conscience of the Court, on a consideration of the aforesaid facts and the materials on record, learned Single Judge has found no infirmity in the order of dismissal from services. This Court has proceeded to examine the case of the appellant/writ petitioner in the light of the aforesaid aspect of the matter, for which relevant rule has been examined which is rule in the name of Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935. The Rule 2 thereof, provides the lists of punishments: 2.The following penalties may, for good and sufficient reasons, be imposed upon any member of a Subordinate Service, viz; (i) Censure; (ii) Withholding of increments or promotion, including stoppage at an efficiency bar; (iii) Reduction to a lower post or time-scale or to a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h allegation of allowing the son of the writ petitioner to discharge his duty, therefore, the allegation of one day absence from duty coupled with asking the son to discharge duty although is serious in nature but warranting the order of dismissal from services ignoring the past services rendered by the appellant/writ petitioner disentitling him from at least pensionary benefits requires considerations. The other charges which pertains to making illegal construction along with illegal water connection, admitted position herein is that the allegation of making illegal construction over the Government quarter, the writ petitioner/appellant has already been penalised by cancellation of order of allegation and further the allegation which pertains to pendency of the criminal case, on examination of this allegation it has been found by this Court that the pendency of the criminal case pertains to commission of offence under Negotiable Instruments Act and when the case has been instituted against the appellant/writ petitioner for dishonour of cheque, the appellant has made payment in course of pendency of criminal case and offence in view of the provision of Section 147 of the Negotia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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