Heard Sri Ratan Deep Mishra, learned Standing Counsel for the Stateappellants and Sri Ajay Kumar Singh Yadav, learned counsel appearing for the petitioneropposite party.
1
AFR
Neutral Citation No. 2024:AHC:188206DB
Court No. 29
Case : SPECIAL APPEAL No. 1012 of 2024
Appellant : State Of Up And 2 Others
Respondent : Prem Chandra Verma
Counsel for Appellant : C.S.C.,Ratan Deep Mishra
Counsel for Respondent : Ajay Kumar Singh Yadav
Hon'ble Vivek Kumar Birla,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
[Per : Dr Yogendra Kumar Srivastava, J.]
1.Heard Sri Ratan Deep Mishra, learned Standing Counsel
for the Stateappellants and Sri Ajay Kumar Singh Yadav,
learned counsel appearing for the petitioneropposite party.
2.The present intracourt appeal is directed against the order
dated 27.05.2024 passed by learned Single Judge of the Court
in Writ – A No. 5001 of 2024 [Prem Chandra Verma Vs. State
of Uttar Pradesh and Others].
3.A perusal of the records of the case indicates that the writ
petition had been instituted praying for a mandamus to be
issued to the Joint Director, Technical Education, East Zone,
Varanasi to implement the benefit of revised salary to the
petitioner, in terms of memoranda dated 28.05.2022 and
07.07.2022 issued by the Director, Technical Education, U.P.
and addressed to the Joint Director, Technical Education, East
Zone, Varanasi, amongst others.
4.Before the writ court, it was contended that the
2
emoluments payable to the petitioner in his capacity as Principal
of a Government Polytechnic College had been revised in terms
of Government Order dated 03.05.2018 and the consequential
orders dated 28.05.2022 and 07.07.2022 issued by the Director,
Technical Education, U.P. Kanpur directing issuing directions to
the Joint Director, Technical Education, Varanasi. It was urged
that despite the aforesaid Government Order dated 03.05.2018
and the orders issued by the Director dated 28.05.2022 and
07.07.2022 fixing revised emoluments for Principals of
Government Polytechnic Colleges, the Joint Director was not
revising the petitioner's emoluments. Noticing the aforesaid
contention, the writ court passed an order on 01.04.2024
directing filing of a personal affidavit by the Joint Director
showing cause as to why the revised emoluments in terms of the
orders passed by the Director, Technical Education had not been
sanctioned and disbursed to the petitioner.
5.The Joint Director, Technical Education, in compliance of
the aforesaid order filed his affidavit wherein it was stated that
an order dated 04.04.2024 had been passed granting the
petitioner the benefit of the revised emoluments as per the
orders dated 28.05.2022 and 07.07.2022. The writ court, upon
noticing that the order dated 04.04.2024 showed that while
determination for different periods of time from 02.05.2018 to
02.01.2024 had been made, for the period when the petitioner
was under suspension, i.e. 11.03.2019 to 04.01.2021, the
petitioner's increments had not been granted, making it
dependent on the outcome of the pending departmental
proceedings against the petitioner, observed that mere pendency
3
of disciplinary enquiry would not disentitle the petitioner from
earning his increment and accordingly a further personal
affidavit of the Joint Director, was ordered to be filed. A further
personal affidavit of the Joint Director was filed on 18.04.2024,
wherein the stand taken that the orders regarding pay fixation
and award of increment or the payments of subsistence
allowance shall be taken after the disciplinary proceedings come
to an end, was held to be unacceptable, and an order was
passed directing the Principal Secretary, Department of
Technical Education, Government of U.P., Lucknow, the Director
of Technical Education, U.P. Kanpur and the Financial
Controller, Technical Education, Kanpur, to ensure that a
decision was taken on or before 02.05.2024. An Affidavit of
Compliance was directed to be filed. Pursuant thereto, on
02.05.2024, an affidavit of the Principal Secretary, Department
of Technical Education was filed, annexing therewith an order
dated 29.04.2024 awarding a major penalty to the petitioner
withholding two increments with cumulative effect besides
directing recovery of a sum of Rs.77,150/.
6.Counsel for the petitioner was permitted to amend the
petition by formally adding a prayer challenging the order dated
29.04.2024, on behalf of the petitioner. In response, a
supplementary affidavit was filed on behalf of the State
respondents. The writ petition was finally heard on 27.05.2024,
and the learned Single Judge on the basis of the affidavits which
were on record concluded that the salutary principle regarding
holding of a valid departmental enquiry in a matter where a
major penalty was to be imposed, had not been followed.
4
Accordingly, the writ petition was allowed and the order dated
29.04.2024 passed by the Principal Secretary, was quashed. The
operative portion of the judgment of the learned Single Judge is
being extracted below:
“19. In the result, this writ petition succeeds and is allowed. The
impugned order dated 29.04.2024 passed by the Principal
Secretary, Department of Technical Education, Government of
U.P., Lucknow is hereby quashed. The respondents shall be free to
take fresh proceedings, bearing in mind the remarks in this
judgment against the petitioner, if they so elect from the stage of
chargesheet or a modified chargesheet. In the event, the
respondents elect to pursue fresh proceedings, they will not impose
a penalty higher than that imposed by the orders impugned and
quashed by this judgment today.”
(emphasis supplied)
7.Counsel for the Stateappellants, after drawing attention
of the Court to the factual aspects of the case, has fairly stated
that the appeal is confined against the direction issued by the
learned Single Judge in the operative portion of the judgment
wherein, on the one hand the respondents have been left free to
take fresh proceedings if they so elect from the stage of charge
sheet or a modified chargesheet, it has been observed that in
the event the respondents elect to pursue fresh proceedings they
would not impose a penalty higher than that imposed by the
orders impugned and which had been quashed in terms of the
judgment which was being passed.
8.It is argued that the disciplinary proceedings and the
imposition of punishment if any is to be done as per the
provisions of the U.P. Government Servants (Discipline and
Appeals) Rules, 1999 and imposition of any restriction with
regard to the penalty which may be imposed upon conclusion of
the disciplinary proceedings, amounts to curtailing the powers
5
of the disciplinary authority under the relevant statutory rules,
which would not be legally permissible. It has been urged that
the Court could certainly issue directions for proceeding with
the enquiry from the stage of the chargesheet or a modified
chargesheet, however imposition of any restriction on the
discretion on the disciplinary authority was uncalled for.
9.Counsel appearing for the opposite partypetitioner has
tried to support the order passed by the learned Single Judge by
pointing out that the impugned order dated 29.04.2024
imposing major penalty having been passed without following
the due procedure for holding departmental inquiry, the inquiry
was vitiated and the learned Single Judge quashed the same and
issued directions for holding fresh proceedings. On the question
as to whether any restrictions could have been imposed on the
discretion of the disciplinary authority in the matter relating to
the penalty that may be imposed upon conclusion of the
disciplinary proceedings, learned counsel appearing for the
petitioneropposite party could not point out any ground to
support the directions issued in the judgment under appeal.
10.The procedure with regard to holding of disciplinary
proceedings and imposition of penalties on government
servants, is determined as per the provisions contained under
the U.P. Government Servant (Discipline and Appeal) Rules,
1999. The appointment of the disciplinary authority is to be as
per Rule 6 of the Rules 1999. The procedure for imposition of
major penalty is prescribed under Rule 7. The submission of
enquiry report and action on enquiry report by the disciplinary
authority are to be as per Rules 8 and 9, respectively. For ease of
6
reference Rules 6, 7, 8 and 9 of the Rules 1999, are being
reproduced below:
“6. Disciplinary authority–The appointing authority of a
Government servant shall be his disciplinary authority, who,
subject to the provisions of these rules, may impose any of the
penalties specified in Rule 3 on him:
Provided that no person shall be dismissed or removed by an
authority subordinate to that by which he was actually
appointed:
Provided further that the Head of Department notified under the
Uttar Pradesh Class II Services (Imposition of Minor
Punishment) Rules, 1973, subject to the provisions of these
rules, shall be empowered to impose minor penalties mentioned
in Rule 3 of these rules:
Provided also that in case of a Government servant belonging to
Group 'C' and 'D' posts, the Government, by a notified order,
may delegate the power to impose any penalty, except dismissal
or removal from service under these rules, to any authority
subordinate to the appointing authority and subject to such
conditions as may be prescribed therein.
7. Procedure for imposing major penalties – Before imposing
any major penalty on a Government servant, an inquiry shall be
held in the following manner–
(i) The disciplinary authority may himself inquire into the
charges or appoint an authority subordinate to him as Inquiry
Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is
proposed to take action shall be reduced in the form of definite
charge or charges to be called chargesheet. The chargesheet
shall be approved by the disciplinary authority:
Provided that where the appointing authority is Governor, the
chargesheet may be approved by the Principal Secretary or the
Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give
sufficient indication to the charged Government servant of the
facts and circumstances against him. The proposed documentary
evidence and the name of the witnesses proposed to prove the
same alongwith oral evidence, if any, shall be mentioned in the
chargesheet.
(iv) The charged Government servant shall be required to put in
a written statement of his defence in person on a specified date
which shall not be less than 15 days from the date of issue of
7
chargesheet and to state whether he desires to crossexamine
any witness mentioned in the chargesheet and whether desires
to give or produce evidence in his defence. He shall also be
informed that in case he does not appear or file the written
statement on the specified date, it will be presumed that he has
none to furnish and Inquiry Officer shall proceed to complete
the inquiry ex parte.
(v) The chargesheet, alongwith the copy of the documentary
evidences mentioned therein and list of witnesses and their
statements, if any shall be served on the charged Government
servant personally or by registered post at the address
mentioned in the official records. In case the chargesheet could
not be served in aforesaid manner, the chargesheet shall be
served by publication in a daily newspaper having wide
circulation :
Provided that where the documentary evidence is voluminous,
instead of furnishing its copy with chargesheet, the charged
Government servant shall be permitted to inspect the same
before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits
the charges, the Inquiry Officer shall submit his report to the
disciplinary authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges,
the Inquiry Officer shall proceed to call the witnesses proposed
in the chargesheet and record their oral evidence in presence of
the charged Government servant who shall be given opportunity
to crossexamine such witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and record the oral
evidence which the charged Government servant desired in his
written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded
in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give
evidence or require any person to produce documents before
him in accordance with the provisions of the Uttar Pradesh
Departmental Inquiries (Enforcement of Attendance of
Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any
time of any witness or from person charged with a view to
discover the truth or to obtain proper proof of facts relevant to
charges.
(x) Where the charged Government servant does not appear on
the date fixed in the inquiry or at any stage of the proceeding
inspite of the service of the notice on him or having knowledge
of the date, the Inquiry Officer shall proceed with the inquiry ex
8
parte. In such a case the Inquiry Officer shall record the
statement of witnesses mentioned in the chargesheet in absence
of the charged Government servant.
(xi) The disciplinary authority, if it considers it necessary to do
so, may, by an order appoint a Government servant or a legal
practitioner, to be known as "Presenting Officer" to present on
its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any
other Government servant to present the case on his behalf but
not engage a legal practitioner for the purpose unless the
Presenting Officer appointed by the disciplinary authority is a
legal practitioner of the disciplinary authority having regard to
the circumstances of the case so permits :
Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on
the ground of conduct which has led to his conviction on
a criminal charge; or
(ii) Where the disciplinary authority is satisfied that for
reason to be recorded by it in writing, that it is not
reasonably practicable to hold an inquiry in the manner
provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest
of the security of the State, it is not expedient to hold an
inquiry in the manner provided in these rules.
8. Submission of Inquiry Report—When the inquiry is
complete, the Inquiry Officer shall submit its inquiry report to
the disciplinary authority alongwith all the records of the
inquiry. The inquiry report shall contain a sufficient record of
brief facts, the evidence and statement of the findings on each
charge and the reasons thereof. The Inquiry Officer shall not
make any recommendation about the penalty.
9. Action on Inquiry Report—(1) The disciplinary authority
may, for reasons to be recorded in writing, remit the case for re
inquiry to the same or any other Inquiry Officer under
intimation to the charged Government servant. The Inquiry
Officer shall thereupon proceed to hold the inquiry from such
stage as directed by the disciplinary authority, according to the
provisions of Rule 7.
(2) The disciplinary authority shall, if it disagrees with the
findings of the Inquiry Officer on any charge, record its own
findings thereon for reasons to be recorded.
(3) In case the charges are not proved, the charged Government
servant shall be exonerated by the disciplinary authority of the
charges and inform him accordingly.
9
(4) If the disciplinary authority having regard to its findings on
all or any of charges is of the opinion that any penalty specified
in Rule 3 should be imposed on the charged Government
servant, he shall give a copy of the inquiry report and his
findings recorded under subrule (2) to the charged Government
servant and require him to submit his representation if he so
desires, within a reasonable specified time. The disciplinary
authority shall, having regard to all the relevant records relating
to the inquiry and representation of the charged Government
servant, if any, and subject to the provisions of Rule 16 of these
rules, pass a reasoned order imposing one or more penalties
mentioned in Rule 3 of these rules and communicate the same
to the charged Government servant.”
11.Rule 6, aforementioned, confers on the disciplinary
authority discretion to impose any of the penalties specified in
Rule 3, which covers both the minor penalties as well as the
major penalties. Rule 7 provides that before imposing any major
penalty on a government servant, an enquiry shall be held in the
manner prescribed. Clause (1) of Rule 7 confers discretion on
the disciplinary authority to himself inquire into the charges or
to appoint an authority subordinate to him as an Inquiry Officer
to inquire into the charges. As per Rule 8, upon the enquiry
being completed the Inquiry Officer is to submit its report to the
disciplinary authority along with all the records of the enquiry.
The enquiry report is to contain sufficient record of proof, facts,
evidence and the statement of findings on each charge and
reasons thereof. It is specifically provided that the Inquiry
Officer while submitting the enquiry report shall not make any
recommendation about the penalty. Rule 9 which relates to
action on enquiry report confers a fairly wide discretion on the
disciplinary authority. Rule 9(1) provides that the disciplinary
authority, may, for reasons to be recorded in writing remit the
case for reenquiry to the same or any other Inquiry Officer,
whereupon an Inquiry Officer shall proceed to hold an inquiry
10
from the stage as directed by the disciplinary authority. The
disciplinary authority, if it disagrees with the findings of the
Inquiry Officer on any charge is empowered under Rule 9(2), to
record its own findings thereon for reasons to be recorded. In
case the charges are not proved, it is the disciplinary authority
which shall exonerate the charged government servant of the
charges as per Rule 9(3). Rule 9(4) confers further discretion
on the disciplinary authority by providing that if the disciplinary
authority having regard to its findings on all or any of the
charges is of the opinion that any penalty specified in Rule 3
should be imposed on the charged government servant, he shall
give a copy of the inquiry report and its findings recorded under
subrule (2) to the charged government servant and require him
to submit his representation if he so desires within a reasonable
specified time. The disciplinary authority, shall, having regard to
all the relevant records relating to the enquiry and
representation of the charged government servant, if any, and
subject to the provisions of Rule 16 of these rules, where
consultation with the Uttar Pradesh Public Service Commission
may be required, is to pass a reasoned order imposing one or
more penalties mentioned in Rule (3) and communicate the
same to the charged government servant.
12.The aforesaid provisions as contained in Rules 1999
relating to the procedure to be followed in regard to a
disciplinary enquiry and the imposition of penalties against the
government servant would go to show that in terms of the
relevant rules, a wide discretion is conferred on the disciplinary
authority at the stage of initiation of the disciplinary
11
proceedings, the disciplinary authority is conferred with a
discretion either to inquire into the charges himself or to
appoint an authority subordinate to him as Inquiry Officer for
the purpose. At the stage of submission of the inquiry report
which shall contain a sufficient record of the brief facts or the
evidence and the statement of findings of each charge and the
reasons thereof, shall not make any recommendation about the
penalty. After submission of the inquiry report, the disciplinary
authority can exercise varied options; (i) it may for reasons
recorded in writing may remit the same to the same or any
other Inquiry Officer, whereupon the Inquiry Officer is to
proceed to hold the enquiry from the stage as directed by the
disciplinary authority; (ii) in case the disciplinary authority
disagrees with the findings of the Inquiry Officer on any charge,
it shall record its own findings thereon for reasons to be
recorded; (iii) where the charges are not proved it is the
disciplinary authority which is empowered to exonerate the
charged government servant of the charges and inform him
accordingly; (iv) finally, if the disciplinary authority having
regard to its findings on all or any of the charges is of the
opinion that any penalty specified in Rule 3 should be imposed
on the charged government servant, he shall give a copy of the
inquiry report and its findings to the charged government
servant requiring him to submit his representation within a
reasonable specified time, and thereafter having regard to all
the relevant records relating to the inquiry and the
representation of the charged government servant pass a
reasoned order imposing one or more penalties under Rule 3
and communicate the same to the charged government servant.
12
13.A conjoint reading of Rules 6, 7, 8 and 9, as above, is
indicative of the discretion conferred on the disciplinary
authority at each stage of the disciplinary proceeding – the stage
of its inception that is to say the appointment of Inquiry Officer,
the stage of submission of inquiry report and finally at the stage
of action on the inquiry report.
14.The powers conferred on the disciplinary authority at the
final stage of imposition of penalty give ample discretion to the
authority to either exonerate the government servant of the
charges or to impose one or more penalties (minor or major)
mentioned in Rule 3, after requiring him to submit his
representation and taking into account all the relevant records
relating to inquiry and the representation. The disciplinary
authority can also exercise the option of remitting the case for
reinquiry to the same or any other Inquiry Officer for reasons to
be recorded in writing.
15.The foregoing provisions are clearly indicative of the wide
discretion that has been conferred on the disciplinary authority
in matters relating to holding of the disciplinary proceedings
and imposition of the penalties. This is of course subject to the
condition of procedural fairness being followed and reasoned
orders in writing being passed at each stage where the
discretion under the rules is exercised.
16.The scope of judicial review in matters relating to the
quantum of penalty to be imposed upon a delinquent employee
consequent to the disciplinary proceedings, has been held to be
limited. Only in a case where the penalty appears to be
13
shockingly disproportionate to the nature of misconduct courts
may interfere, and even in such cases after setting aside the
penalty order, it should be left to the discretion of the
disciplinary/appellate authority to pass a fresh order, and it
would not be for the court to prescribe the nature or the
quantum of penalty which may be imposed. It would only be in
a rare and exceptional case where the court, in order to shorten
the litigation, may after recording reasons deem it appropriate
to substitute its own view in regard to the quantum of penalty.
17.The nature, object and scope of judicial review in matters
relating to departmental enquiry was considered in B.C.
Chaturvedi Vs. Union of India and Others
1
, and it was held
that judicial review is not an appeal from a decision but a review
of the manner in which the decision is made. The power is to be
exercised to ensure that the individual concerned receives fair
treatment and not to ensure that the conclusion which the
authority may reach is necessarily correct in the view of the
Court. It was also held that in exercise of review power courts
would not normally interfere with the punishment imposed by
the disciplinary/appellate authority, except where it shocks the
judicial conscience in which case it can mould the relief either
by directing the authority to reconsider the punishment/penalty
imposed or in exceptional cases by itself imposing appropriate
punishment recording cogent reasons. The observations made in
this regard in the judgment are as follows:
“12. 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
1(1995) 6 SCC 749
14
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 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
reappreciate the evidence and to arrive at its own
independent findings on the evidence. The Court/Tribunal
may interfere where the authority held the proceedings
against the delinquent officer in a manner inconsistent with
the rules of natural justice or in violation of statutory rules
prescribing the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is based on no
evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate to
the facts of each case.
13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are
not relevant. Adequacy of evidence or reliability of evidence
cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4
SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court
held at p. 728 that if the conclusion, upon consideration of
the evidence reached by the disciplinary authority, is
perverse or suffers from patent error on the face of the
record or based on no evidence at all, a writ of certiorari
could be issued.
… … …
18. A review of the above legal position would establish
that the disciplinary authority, and on appeal the appellate
authority, being factfinding authorities have exclusive
15
power to consider the evidence with a view to maintain
discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or
gravity of the misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority shocks the
conscience of the High Court/Tribunal, it would
appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty
imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment
with cogent reasons in support thereof.”
18. The limited scope of judicial review in matters relating to
the quantum of punishment was reiterated in the decision
rendered in the case of Lucknow Kshetriya Gramin Bank Vs.
Rajendra Singh
2
, and it was observed that the courts cannot
assume the function of disciplinary/departmental authorities to
decide the quantum of punishment and nature of penalty to be
awarded, as this function is exclusively within the jurisdiction of
the competent authority. The principles of law in this regard
were summarized in the judgment as follows:
“19.1. When charge(s) of misconduct is proved in an enquiry
the quantum of punishment to be imposed in a particular
case is essentially the domain of the departmental authorities.
19.2. The courts cannot assume the function of
disciplinary/departmental authorities and to decide the
quantum of punishment and nature of penalty to be awarded,
as this function is exclusively within the jurisdiction of the
competent authority.
19.3. Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in
cases where such penalty is found to be shocking to the
conscience of the court.
19.4. Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed
against the delinquent employee, the appropriate course of
action is to remit the matter back to the disciplinary authority
2(2013) 12 SCC 372
16
or the appellate authority with direction to pass appropriate
order of penalty. The court by itself cannot mandate as to
what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4
above, would be in those cases where the codelinquent is
awarded lesser punishment by the disciplinary authority even
when the charges of misconduct were identical or the co
delinquent was foisted with more serious charges. This would
be on the doctrine of equality when it is found that the
employee concerned and the codelinquent are equally
placed. However, there has to be a complete parity between
the two, not only in respect of nature of charge but
subsequent conduct as well after the service of chargesheet
in the two cases. If the codelinquent accepts the charges,
indicating remorse with unqualified apology, lesser
punishment to him would be justifiable.”
19.The scope of interference in punishment or penalty
imposed by disciplinary authority or the appellate authority
again came up for consideration in Regional Manager &
Disciplinary Authority, State Bank of India, Hyderabad and
Another Vs. S. Mohammed Gaffar
3
, and it was observed that
the discretion vested with the disciplinary authority to impose
punishment of its choice to suitably meet the requirement of the
case could not be either denied, curtailed or interfered with in
exercise of jurisdiction under Article 226 of the Constitution of
India. It was stated thus:
“9. …. … the discretion vested with the disciplinary authority
to impose the punishment of its choice to suitably meet the
requirements of the case could not be either denied to it or
curtailed and interfered with in exercise of jurisdiction under
Article 226 of the Constitution of India.
10. The High Court seems to have overlooked the settled
position that in departmental proceedings, insofar as
imposition of penalty or punishment is concerned, unless the
punishment or penalty imposed by the disciplinary or
Appellate Authority is either impermissible or such that it
shocks the conscience of the High Court, it should not
normally interfere with the same or substitute its own
3(2002) 7 SCC 168
17
opinion and either impose some other punishment or penalty
or direct the authority to impose a particular nature or
category of punishment of its choice. It is for this reason we
cannot accord our approval to the view taken by the High
Court in disregard of this settled principle. Consequently, the
appeal is allowed, the judgment of the Division Bench is set
aside and that of the learned Single Judge shall stand
restored. No costs.”
20.We may refer to a similar view taken in an earlier
judgment rendered in State of A.P. And Others Vs. S. Sree
Rama Rao
4
, wherein it was held that the High Court under
Article 226 of the Constitution is not a court of appeal over the
decision of the authorities holding a departmental enquiry
against a public servant, and that under its writ jurisdiction, it is
not the function of the court to review the evidence and arrive
at an independent finding on evidence. The observations made
in the judgment in this regard are as follows:
“7. ... The High Court is not constituted in a proceeding
under Article 226 of the Constitution a court of appeal over
the decision of the authorities holding a departmental
enquiry against a public servant : it is concerned to determine
whether the enquiry is held by an authority competent in that
behalf, and according to the procedure prescribed in that
behalf, and whether the rules of natural justice are not
violated. Where there is some evidence, which the authority
entrusted with the duty to hold the enquiry has accepted and
which evidence may reasonably support the conclusion that
the delinquent officer is guilty of the charge, it is not the
function of the High Court in a petition for a writ under
Article 226 to review the evidence and to arrive at an
independent finding on the evidence. The High Court may
undoubtedly interfere where the departmental authorities
have held the proceedings against the delinquent in a manner
inconsistent with the rules of natural justice or in violation of
the statutory rules prescribing the mode of enquiry or where
the authorities have disabled themselves from reaching a fair
decision by some considerations extraneous to the evidence
and the merits of the case or by allowing themselves to be
influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and
4 AIR 1963 SC 1723
18
capricious that no reasonable person could ever have arrived
at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there be some
legal evidence on which their findings can be based, the
adequacy or reliability of that evidence is not a matter which
can be permitted to be canvassed before the High Court in a
proceeding for a writ under Article 226 of the Constitution.”
21.The principles relating to the scope of judicial review in
regard to disciplinary enquiries were reiterated in the decision
in the case of State of Rajasthan v. Heem Singh
5
, and it was
held that reappreciation of evidentiary findings in a disciplinary
enquiry or substitution of more appropriate view in judicial
review, was not permissible. It was observed as follows:
“37. In exercising judicial review in disciplinary matters,
there are two ends of the spectrum. The first embodies a rule
of restraint. The second defines when interference is
permissible. The rule of restraint constricts the ambit of
judicial review. This is for a valid reason. The determination
of whether a misconduct has been committed lies primarily
within the domain of the disciplinary authority. The Judge
does not assume the mantle of the disciplinary authority. Nor
does the Judge wear the hat of an employer. Deference to a
finding of fact by the disciplinary authority is a recognition of
the idea that it is the employer who is responsible for the
efficient conduct of their service. Disciplinary enquiries have
to abide by the rules of natural justice. But they are not
governed by strict rules of evidence which apply to judicial
proceedings. The standard of proof is hence not the strict
standard which governs a criminal trial, of proof beyond
reasonable doubt, but a civil standard governed by a
preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on
context and subject. The first end of the spectrum is founded
on deference and autonomy — deference to the position of
the disciplinary authority as a factfinding authority and
autonomy of the employer in maintaining discipline and
efficiency of the service. At the other end of the spectrum is
the principle that the court has the jurisdiction to interfere
when the findings in the enquiry are based on no evidence or
when they suffer from perversity. A failure to consider vital
5 (2021) 12 SCC 569
19
evidence is an incident of what the law regards as a perverse
determination of fact. Proportionality is an entrenched
feature of our jurisprudence. Service jurisprudence has
recognised it for long years in allowing for the authority of
the court to interfere when the finding or the penalty are
disproportionate to the weight of the evidence or misconduct.
Judicial craft lies in maintaining a steady sail between the
banks of these two shores which have been termed as the two
ends of the spectrum. Judges do not rest with a mere
recitation of the handsoff mantra when they exercise judicial
review. To determine whether the finding in a disciplinary
enquiry is based on some evidence an initial or threshold
level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support
the charge of misconduct and to guard against perversity. But
this does not allow the court to reappreciate evidentiary
findings in a disciplinary enquiry or to substitute a view
which appears to the Judge to be more appropriate. To do so
would offend the first principle which has been outlined
above. The ultimate guide is the exercise of robust common
sense without which the Judges' craft is in vain.”
22.While examining the scope of interference in the
disciplinary proceedings, in the case of Union of India v. P.
Gunasekaran
6
, it was observed that the High Court in exercise
of its powers under Article 226 cannot go into the
proportionality of punishment unless it shocks the conscience of
the Court, and that interference was permissible only in a case
of perversity. The observations made in the judgment in this
regard are as follows:
“12. Despite the wellsettled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the Inquiry Officer.
The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the High
Court is not and cannot act as a second court of first appeal.
The High Court, in exercise of its powers under Articles
226/227 of the Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can only see
6 (2015) 2 SCC 610
20
whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice
in conducting the 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;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
(i) reappreciate 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 unless it
shocks its conscience.”
23.The limited scope of interference with the quantum of
punishment by the disciplinary authority while exercising
jurisdiction under Article 226 of the Constitution of India was
against emphasized in Union of India v. Ram Karan
7
, and it
7 (2022) 1 SCC 373
21
was held that the discretion vests with disciplinary authority to
impose punishment commensurate with nature of offence
proved and that the same cannot be usurped by Court. It was
stated that even when punishment imposed by the disciplinary
authority is found shocking to the conscience of the Court
normally the disciplinary/appellate authority should be directed
to reconsider the quantum of penalty. It was observed as
follows:
“23. The wellingrained principle of law is that it is the
disciplinary authority, or the appellate authority in appeal,
which is to decide the nature of punishment to be given to
the delinquent employee. Keeping in view the seriousness of
the misconduct committed by such an employee, it is not
open for the courts to assume and usurp the function of the
disciplinary authority.
24. Even in cases where the punishment imposed by the
disciplinary authority is found to be shocking to the
conscience of the court, normally the disciplinary authority or
the appellate authority should be directed to reconsider the
question of imposition of penalty. The scope of judicial review
on the quantum of punishment is available but with a limited
scope. It is only when the penalty imposed appears to be
shockingly disproportionate to the nature of misconduct that
the courts would frown upon. Even in such a case, after
setting aside the penalty order, it is to be left to the
disciplinary/appellate authority to take a call and it is not for
the court to substitute its decision by prescribing the quantum
of punishment. However, it is only in rare and exceptional
cases where the court might to shorten the litigation may
think of substituting its own view as to the quantum of
punishment in place of punishment awarded by the
competent authority that too after assigning cogent reasons.”
24.The line of decisions, referred to above, would go to show
that in exercise of judicial review in disciplinary matters the
general rule is one of restraint and that the discretion in matters
relating to imposition of penalty is within the domain of the
disciplinary authority. A consistent view has been taken that
courts should not assume the mantle of the disciplinary
22
authority and issue directions prescribing the mode and manner
in which their discretion is to be exercised.
25.It may be stated as a fairly well settled principle of law
that it is the disciplinary authority or the appellate authority in
appeal, which is to decide the nature of penalty to be imposed
on a delinquent employee, keeping in view the seriousness of
the misconduct, and even in cases where the punishment
awarded is found to be shocking to the conscience of the court
normally a direction is issued to the disciplinary authority to
reconsider the question relating to the quantum of punishment.
26.While exercising the powers of judicial review, the Courts
would not assume the function of a disciplinary/departmental
authority to decide the quantum of punishment or the nature of
penalty to be awarded as this function is exclusively within the
jurisdiction of the competent authority. The discretion vested
with the disciplinary authority to impose punishment of its
choice to suitably meet the requirement of the case is not to be
either denied, curtailed or interfered with in exercise of powers
of judicial review.
27.The powers of judicial review may be exercised in a case
where the departmental authorities have held proceedings
against the delinquent in a manner inconsistent with the rules of
natural justice or in violation of the relevant statutory rules
prescribing the mode of inquiry or the decision is found to be
based on considerations which are extraneous to the evidence
and the merits of the case or is otherwise based on irrelevant
considerations or where the conclusion on the very face of it, is
23
wholly arbitrary and unreasonable. However, if the inquiry is
otherwise properly held, the departmental authorities are the
sole judges of facts and reappreciation of evidentiary findings
recorded by the departmental authorities or the substitution of
what may be seen to be a more appropriate view, in exercise of
powers of judicial review, would not be permissible. The
discretion to impose punishment commensurate with the nature
of offence vests with the disciplinary authority and the same is
to be exercised unfettered subject to general principles of
fairness being followed.
28.In the case at hand the writ court, upon hearing the
parties and examining the case on the basis of affidavits which
were on record, having concluded that the salutary principle
regarding holding of a valid departmental enquiry in a matter
where major penalty could be imposed, had not been followed,
set aside the order in terms of which a major penalty had been
awarded against the petitioner. The respondent authorities were
set free to initiate fresh proceedings, if so warranted, from the
stage of the charge sheet or a modified charge sheet.
29.To this extent, we are of the view that the learned Single
Judge, having come to a conclusion based on the material on
record that due procedure with regard to holding of a
departmental enquriy had not been followed, and that the order
imposing major penalty stood vitiated on that ground, rightly set
aside the said order and remitted the case to the respondent
authorities with liberty to take fresh proceedings from the stage
of the charge sheet or modified charge sheet, if so required.
However, the condition which has been imposed by providing
24
that in the event the respondent authorities choose to initiate
fresh proceedings they would not impose a penalty higher than
that imposed by the orders impugned in the writ petition, in our
view, goes beyond the settled principle of the rule of restraint in
exercising judicial review in matters relating to disciplinary
proceedings.
30.The rule of restraint that constricts the ambit of judicial
review in disciplinary matters, has been held to be founded on
principles of deference and autonomy — deference to the
position of the disciplinary authority as a factfinding authority
and autonomy of the employer in maintaining discipline and
efficiency of the service.
31.The court would have jurisdiction to interfere when the
findings in the enquiry are based on no evidence or when they
suffer from perversity. The courts may also interfere with the
finding or the penalty where it is disproportionate to the weight
of the evidence or the misconduct. This stage would, however,
arise only when the disciplinary authority is permitted to
exercise its unfettered discretion on the basis of the facts and
the evidence available on record, and to pass a suitable order
either exonerating or holding the delinquent guilty and
awarding penalty commensurate with the gravity of the
misconduct. The court, while exercising its power of judicial
review, may at this stage, decide to interfere with the
punishment imposed by the disciplinary authority, in those 'rare
and exceptional cases', where the penalty is found to be
disproportionate and shocking to the conscience of the court.
Even in such a case, where the court views the penalty as being
25
shockingly disproportionate to the nature of misconduct, the
appropriate and the accepted course of action would be to remit
the matter to the disciplinary authority with liberty to pass a
fresh order on the question of penalty and it would not be for
the Court to mandate as to what should be the penalty in such a
case.
32.This would be more so in a case where the Court is of the
view that the procedure for holding a departmental enquiry has
not been followed, and the order of penalty passed by the
disciplinary authority is vitiated for procedural reasons, and the
matter is being remitted with liberty to the authority concerned
to initiate fresh proceedings from the stage of charge sheet. In
such case the outcome of the disciplinary proceeding, at that
stage, would be wide open, and it would be treading in the
realm of conjecture to hazard a guess as to what view would
possibly be taken by the disciplinary authority, and what would
be the proposed penalty, if any, at the stage of the conclusion of
the proceedings. The writ court, in our opinion, has overstepped
the 'limited scope of judicial review', in a matter relating to the
disciplinary proceedings, by preempting the outcome of the
proceedings which are to be initiated from the stage of the
charge sheet, and whose outcome, for the present, can only be
described as being 'hazy'.
33.The judgment of the learned Single Judge, to the extent it
restricts the discretion of the disciplinary authority in regard to
the penalty that may be proposed as a possible outcome of the
disciplinary proceedings which are to commence from the stage
of the charge sheet, is therefore held to be legally unsustainable.
26
34.Accordingly, we are of the view that the judgment of the
learned Single Judge to the extent it relates to quashment of the
order dated 29.4.2024, awarding major penalty to the
petitioner, and leaving it open to the respondentauthorities to
take fresh proceedings, if they so elect, from the stage of charge
sheet or modified chargesheet, requires no interference.
However, the latter part of the operative portion of the
judgment under appeal is modified by providing that in the
event, the respondentauthorities elect to initiate fresh
proceedings, they would be entitled to exercise their unfettered
discretion in regard to the same. The respondentauthorities,
would be expected to adhere to the procedure prescribed under
the relevant Rules of 1999, and to act in a manner, which is fair
and just.
35.The Special Appeal is allowed to the extent indicated
above.
Order Date : 29.11.2024
Arun K. Singh/RKK
[Dr. Y.K. Srivastava, J.] [V.K. Birla, J.]
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