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TMI Blog2020 (4) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... a charge as contained in Memo No.7169-72 dated 05.12.2007, alleging therein that on 30.11.2007 the appellant/writ petitioner was absent from duty after putting attendance in the attendance register and was taking duty through his son, Arun Rai, basis upon which departmental proceeding was initiated alleging gross negligence and dereliction from duty. Subsequent thereto, the additional copy of the additional charges as contained in Memo No.7208-11 dated 06.12.2007 had also been served levelling therein the following charges of misdeeds and misconduct: (i) Writ petitioner/appellant had not furnished correct income tax return (ii) Writ petitioner/appellant was working as land broker being a Government servant, purchased several piece of land in the name of his family without informing to the department (iii) Writ petitioner/appellant had made illegal construction in the Government quarters occupied by him, therefore, allotment was cancelled and he had to vacate the quarters (iv) Writ petitioner/appellant had not informed the department regarding several cases pending against him and (v) Writ petitioner/appellant had opened several Bank account without informing the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge of having several Bank accounts have not been proved, therefore, in view of the nature of charges having not been proved by the enquiry officer, the order of dismissal cannot be commensurate with the gravity of charges. It has further been submitted that the appellant/writ petitioner is to superannuate on attending the normal age of superannuation sometime in the year 2030 and he has already put his service of about 23 years without any complaint and as such while imposing the punishment of dismissal from service, the disciplinary authority as also the appellate authority ought to have taken into consideration these aspects of the matter. It has further been submitted that even accepting the charge of absence from duty for a period of one day, for which, the order of dismissal cannot be said to be commensurate. So far as other charges which have been proved, pertains to making illegal construction of house, submission has been made that when the allotment order has already been cancelled, the same cannot be inserted as a charge since the adverse action has already been taken by cancelling the order of allotment, further non-disclosure of several criminal cases which per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by Mr. Srivastava, learned counsel for the respondent that the learned Single Judge has committed no error in not interfering with the order of dismissal. 5. This Court has heard learned counsel for the parties and on appreciation of the rival submissions, deem it fit and proper to discuss about the scope of judicial review in the matter of decision taken by the disciplinary authority. It is not in dispute that the scope of judicial review is very least to be exercised by the High Court sitting under Article 226 of the Constitution of India. The Hon'ble Apex Court while dealing with the scope of power under Article 226 of the Constitution of India, has considered the same in the case of Union of India vs. P. Gunasekaran reported in AIR 2015 SC 545 wherein at paragraph 13 thereof, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which reads hereunder as: "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 enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R (2017) SC 200 , wherein the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the same extract of para 8 thereof, is referred hereinbelow: "8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings; (d) the authorities have disabled themselves 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; 13.(i) the finding of fact is based on no evidence. 13. 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 inquiry, 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 proportiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the appellant/writ petitioner and thereafter the report was submitted on 15.03.2012 holding the petitioner fit to be exonerated since the charges were established, the same would be evident from the enquiry report as has been annexed as Annexure-3 to the paper book, the part of the enquiry report is being referred hereunder as: "From the order no.04/07 it is crystal clear that Sachidanand Rai was ordered to perform duty in the office of the court of Munsif and that was shown to him by taking his signature in the order itself. Therefore, the allegations that Sachidanand Rai was orderly peon and he was found absent from the Izlas could not be established by the Administration by credible evidence whereas the delinquent has been able to prove it that he was deputed in the office of Munsif, Civil Court, Ranchi. So far other charges are concerned, the Civil Court Administration has not adduced an iota of evidence either oral or documentary against the delinquent despite of the fact that sufficient opportunities were provided by this court. On consideration of entire facts and circumstances of the case, I have come to a definite opinion that the Administratin has failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges or the finding recorded by the enquiry officer and therefore, this Court is not inclined to interfere with the same in exercise of power of judicial review by appreciating the evidence otherwise, this Court will be said to be a Court of appeal as has been held by the Hon'ble Apex Court hereinabove. This Court, therefore, is of the view that so far as the finding recorded by the learned Single Judge with respect to the issue on merit, no error has been committed. 8. This Court has further proceeded to scrutinize the finding recorded by the learned Single Judge pertaining to decision on quantum of punishment, by appreciating the argument advanced in this regard by the learned counsel for the appellant/writ petitioner. It is settled that the High Court under Article 226 of the Constitution of India may interfere on quantum of punishment as has been held by Hon'ble Apex Court in the case of Dev Singh vs. Punjab Tourism Development Corporation Ltd. and Anr. reported in (2003) 8 SCC 9, wherein the Hon'ble Apex Court has been pleased to considered the issue on quantum of punishment, taken into consideration the unblemished service of the appellant therein who had served the estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduction to a lower post or time scale or to a lower stage in a time scale, compulsory retirement, removal from the Civil Services of the Crown, which does not disqualify from future employment. The appellant/writ petitioner has taken the stand that he was appointed on 03.08.1992 as is evident from para 21 (page-14) of the supplementary affidavit dated 27.03.2019 filed on behalf of the appellant and since he has already completed 23 years of service as on the date of dismissal (approximately), therefore, the other punishment available under the list of punishments can also be imposed entitling the appellant at least for the pensionary benefits but according to him by order of dismissal, the past services rendered by him has stand forfeited and therefore, the disciplinary authority ought to have taken into consideration this aspect of the matter. This Court has examined the aforesaid factual aspect and considering the fact that the whole object of issuance of memorandum of charge on the basis of the allegations is to get rid of the establishment from the services of the appellant/writ petitioner, equally herein the appellant/writ petitioner has already discharged about 23 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in cheque, which is one of the reason of passing the order of dismissal which also requires considerations by the disciplinary authority. 10. In view of the aforesaid factual aspect, this Court is of the view that when the other punishments are provided in the list of punishments, this aspects of the matter ought to have been considered by the learned Single Judge before reaching to such conclusion and therefore, the finding pertaining to quantum of punishment as recorded by the learned Single Judge cannot be said to be proper. 11. In view thereof, 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. 12. In the result, 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. 13. Accordingly, the present appeal is disposed of. (Dr. Ravi Ranjan, C.J.) I agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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