Gauhati High Court · 2012

[5] The Hon’ble Chief Justice, upon consideration of all the relevan t materials, accepted the findings of the Enquiry Officer and imposed the penalt y, as noticed above, vide order dated 18.12.2006. Consequential order was, ther eafter, issued by the Registrar General on 17.01.2007 reverting the petitioner t o the post of Assistant Registrar. The appeal to Hon’ble the Chief Justice file d by the petitioner on 13.03.2007 was rejected on 28.11.2007. The petitioner, h owever, during pendency of the writ petition subsequently promoted to the post o f Deputy Registrar from the post of Assistant Registrar. We have heard Mr. PK Tiwari, learned counsel for the petitioner [6] and Mr. SS Dey, learned Standing Counsel, Gauhati High Court appearing for the r espondents. [7] Mr. Tiwari, learned counsel for the petitioner referring to char ge Nos.1 and 2 levelled against the petitioner submits that though they relate t o the allegation of taking admission in the 1st and 2nd year LL.B. Course withou t permission of the competent authority, it is evident from the records of the e nquiry proceeding that on 06.01.1991, the Registry earlier accorded permission t o take admission in LL.B. Course during the year 1991 and the petitioner, for so me reasons having failed to take admission and complete the Course, obtained ver bal permission from the then Hon’ble Chief Justice in the year 2001 and accordin gly took admission into the 1st and 2nd year LL.B. Courses on 12.11.2001 and 11. 11.2002, respectively. It has also been submitted that the petitioner referring to the earlier permission granted filed an application on 23-04-2003 (Exhibit-5 3) before the Registrar General to allow him to prosecute the LL.B. Course for t he session 2002-03, which was granted on 02.06.2003 by the Registrar (Administra tion), on approval of the then Hon’ble Chief Justice. It has also been submitte d that the factum of the approval of the Hon’ble Chief Justice allowing the peti tioner to prosecute the LL.B. Course is also evident from the evidence of Sri Ma hesh Sarma (witness No.2) and Smti. C.S. Marak (witness No.7) examined by the di sciplinary authority in the disciplinary proceeding conducted against him. The fact that the petitioner was earlier granted permission on 16-07-2003 (Exhibit-1 2) by the then Hon’ble Chief Justice has also been supported by grant of earned leave from 21.07.2003 to 13.08.2003 by the then Hon’ble Chief Justice, so as to enable the petitioner to appear in the LL.B. examination. The learned counsel submits that it appears from the records tha [8] t the petitioner never kept either the Registry or the then Hon’ble Chief Justic e in dark by taking admission and pursuing with the LL.B. Course under Manipur U niversity. The conduct of the petitioner, according to the learned counsel, the refore, is bonafide and cannot in any stress of imagination be termed as malafid e, so as to invite disciplinary action against him for taking admission and in p ursuing the LL.B. Course. It has also been submitted that since neither the 196 7 Rules nor any instruction issued by the authority requires obtaining prior wri tten permission of the competent authority to take admission in any course of st udy, the allegation of taking admission without permission even if taken to be t rue, does not violate any Rules or instruction issued, so as to entail the disci plinary action against the petitioner. Referring to the 1967 Rules, Mr. Tiwari submits that the discipl [9] inary action against an employee/officer can be taken only in the event of commi ssion of any misconduct as enumerated in Rules 42 to 61 of the 1967 Rules and si nce taking admission in any Course of study without permission does not constitu te a misconduct within the meaning of 1967 Rules, no disciplinary action can be taken against the petitioner on the basis of such allegation. The ex-post-facto › approval of taking admission to LL.B. Course by granting permission by the Reg istrar (Administration) on 02.06.2003 as well as granting the leave to appear in the examination of 1st year LL.B. Course by the then Hon’ble Chief Justice on 1 6.07.2003 has validated the initial conduct of the petitioner, event if, taking admission in any Course of study without permission amounts to misconduct, submi ts the learned counsel. The learned counsel further submits that the charge of not maintaining the devotion to duty and absolute integrity and acting in a mann er unbecoming of a public servant and abuse or misuse of official power and posi tion as levelled in the charge memo could not be proved by the disciplinary auth ority in the proceeding conducted against him, as it is not the allegation that the petitioner did not maintain the absolute integrity and devotion to duty as S ecretary to the then Hon’ble Chief Justice, the post which he held at the releva nt point of time, more so when the allegation of taking admission in LL.B. Cours e without permission does not relates to official work or the action or behaviou r of the petitioner as Secretary to the then Hon’ble Chief Justice. Mr. Tiwari further submits that his action in taking admission in LL.B. Course, in view of the aforesaid submission, does not amount to any act unbecoming of a public serv ant or abuse or misuse of the official position amounting to misconduct, so as t o take disciplinary action against the petitioner. [10] Referring to charge No.3 based on the allegation that the petiti oner by submitting the application dated 23.04.2003 (Exhibit-53) stating that he was earlier granted the permission to prosecute the study in LL.B. Course misle ad the authority in granting the permission vide order dated 02.06.2003 (Exhibit -54) as no permission was granted earlier, it has been submitted by Mr. Tiwari t hat it is evident from the deposition of witness Nos.2, 3 and 7 that the permiss ion dated 02.03.2003 was accorded on the approval of the then Hon’ble Chief Just ice on the basis of the application field by the petitioner, which was placed be fore him. It has been submitted that it is an undisputed fact that the petition er was earlier granted permission in writing on 06.01.1991 to prosecute the stud y in LL.B. Course during the year 1991, which, however, he could not pursue due to certain personal difficulties and as such, there was no misleading statement at all in the application filed by him on 23.04.2003, so as to mislead the then Hon’ble Chef Justice or the Registry to pass the order granting approval on 02.0 6.2003. The learned counsel further submits that since it is evident from the d epositions of the aforesaid witnesses that the application filed by the petition er was placed before the then Hon’ble Chief Justice, on whose approval, the orde r dated 02.06.2003 was issued by the Registrar (Administration), the authority o ught not to have brought the charge No.3 against the petitioner without verifyin g the fact from the then Hon’ble Chief Justice, which was not done despite the r epeated request made by the petitioner. Mr. Tiwari further submits that the cha rge No.3 is also very vague as it has not disclose who was mislead by the petiti oner by the aforesaid application dated 23.04.2003. The further submission is t hat the fact that the Hon’ble Chief Justice was not mislead by the statement mad e in application dated 23.04.2003 is also evident from the subsequent order of t he then Hon’ble Chief Justice dated 16.07.2003 granting leave allowing the petit ioner to appear in the 1st year LL.B. examination. The said charge, according t o the learned counsel, has been brought only to counter the defence of the petit ioner of grant of ex-post facto approval in relation to charge Nos.1 and 2. [11] It has also been submitted by Mr. Tiwari that the charge No.4 le velled against the petitioner on the basis of the allegation that he attended th e classes on few days in the months of October and December, for the 1st year, 2 nd year, and 3rd year LL.B. Course, in the years 2001, 2002 and 2003, respective ly, without obtaining permission from the competent authority to remain away fro m the headquarter also cannot be sustained, as the petitioner in the month of No vember, 2001 and 2002 took admission in the 1st and 2nd year LL.B. Course in Roy al Academy of Law, Oinam, which fact is also reflected in charge Nos.1 and 2. T he learned counsel, therefore, submits that the said charge has been framed agai nst the petitioner without any application of mind by the competent authority, w hich, is therefore, liable to be quashed. The basis for holding by the Enquiry Officer that the said charge against the petitioner has been proved, i.e. the ev idence of Sri Jogeswar Singh, the Principal of the said Law College and the rele vant attendance register of the College, cannot be sustained, as the proper main tenance of such attendance register is doubtful because of the evident fact that though the petitioner took admission in the 1st year LL.B. Course on 12.11.2001 and the 2nd year LL.B. Course on 11.11.2002, he was marked present on various d ates in the month of October, 2001 and 2002 in the 1st and 2nd year LL.B. Course , more so when the petitioner has taken the specific stand that he did not atten d the classes on those dates. According to the learned counsel, the charge No.4 against the petitioner, therefore, cannot be sustained on the basis of such dou btful attendance register. Mr. Tiwari further submits that the said charge of a ttendance of classes on various dates in the months of October and December, 200 1, 2002 and 2003 cannot also be sustained since there is no allegation against t he petitioner that he did not attend the duty as Secretary to the Hon’ble Chief Justice in those days. [12] Referring to charge No.5 levelled against the petitioner, it has been submitted by Mr. Tiwari that the allegation of the petitioner being person ally present in the office of the Principal of Royal Academy of Law, Oinam on 12 .11.2002, 11.11.2002 and 19.09.2003 for submitting the applications for admissio n in the 1st, 2nd and 3rd year LL.B. Course, also could not be substantiated by the disciplinary authority so as to constitute the misconduct as alleged. Refer ring to the date, i.e. 12.11.2002, on which according to the disciplinary author ity the petitioner was personally present in the college in Oinam, Manipur for t aking admission in the 1st year LL.B. Course, it has been submitted that the sai d allegation is contrary to the allegation in charge No.1 that he took admission on 12.11.2001, which reflects total non application of mind on the part of the Registrar General in levelling the charge against the petitioner. It has also b een submitted that the evidence of Sri Jogeswar Sing, the Principal of the said College, on which much reliance has been placed by the Enquiry Officer in holdin g that the said charge against the petitioner has been proved, is not at all rel iable, as this witness in relation to charge No.4 has deposed that the petitione r attended the classes in the month of October, 2001 in the 1st year LL.B. Cours e when he did not even take admission. That apart, according to the learned cou nsel, the petitioner could prove by producing the relevant documents that he was proceeding to Patna for treatment with due permission from the competent author ity on 12.11.2001 and came back after treatment only on 18.11.2001 and hence the re is no question of the petitioner being personally present in Oinam in the Sta te of Manipur on 12.11.2001, even if it is treated that there is mistake in typi ng the date as 12.11.2002 instead of 12.11.2001. The learned counsel further su bmits that the said charge cannot held to be proved against the petitioner only on the basis of the records of the College and the evidence of the then Principa l of the College that the petitioner was personally present on those days in the College for admission, in view of the positive evidence before the Enquiry Offi cer that on those dates the petitioner was present in Guwahati discharging the d uties as Secretary of the Hon’ble Chief Justice and when there is also no allega tion against the petitioner that he was unauthorizedly absent from duty on those dates in Guwahati. The learned counsel, therefore, submits that the record of t he College authority cannot be the sole basis for recording the finding that the charge against the petitioner has been proved so as to take disciplinary action against him. [13] Mr. Tiwari further submits that the act of taking admission in a ny Course of study without prior permission of the employer does not bear a forb idden quality or character so as to constitute the misconduct entailing discipli nary action against an employee. Such act of taking admission without permissio n, even if taken to be true, does not, therefore, constitute misconduct and henc e the petitioner cannot be punished for commission of any misconduct on the basi s of the allegations made against him. The learned counsel further submits that the then Hon’ble Chief Justice Mr. B.K. Roy in his order dated 26.09.2005 has a lso recorded that the petitioner pursued the LL.B. Course with due approval and sanction of the Hon’ble Chief Justice, which fact has also not been taken into c onsideration and in fact ignored by the Enquiry Officer as well as by the discip linary authority while holding that the charges levelled against the petitioner are proved. The learned counsel submits that there was no proper appreciation o f the evidences on record and the petitioner is held to be guilty against the ch arges levelled against him when there was no evidence at all to record the findi ng of guilt against him by the Enquiry Officer. Mr. Tiwari, therefore, submits that the disciplinary action taken against the petitioner needs to be interfered with and the petitioner be given all service benefits. [14] Mr. Tiwari in support of his contention has placed reliance on t he decision of the Apex Court in Nand Kishore Prasad -Vs- State of Bihar & Ors. reported in AIR 1978 SC 1277; in K.L. Tripathi -Vs- State Bank of India & Ors. r eported in AIR 1984 SC 273; in A.L. Kalra -Vs- Project and Equipment Corporation of India Ltd. reported in AIR 1984 SC 1361; in Maharashtra State Board of Secon dary and Higher Secondary Education -Vs- K.S. Gandhi & Ors. reported in (1991) 2 SCC 716; in Kuldeep Singh -Vs- Commissioner of Police & Ors. reported in (1999) 2 SCC 10; in M.M. Malhotra -Vs- Union of India & Ors. reported in (2005) 8 SCC 351; in Narinder Mohan Arya -Vs- United India Insurance Company Limited & Ors. reported in (2006) 4 SCC 713 and in Moni Shankar -Vs- Union of India & Anr. repo rted in (2008) 3 SCC 484. [15] Mr. Dey, learned standing counsel, Gauhati High Court, appearing for the respondents, supporting the disciplinary action taken against the petit ioner and referring to the records produced, submits that it is evident from the materials made available before the Enquiry Officer in the disciplinary proceed ing conducted against the petitioner that he took admission in the 1st and 2nd y ear LL.B. Course on 12-11-2011 and 11-11-2002, respectively, which is much prior to the permission granted by the Registrar (Administration) on 02-06-2003, whic h permission was also obtained by the petitioner by making misleading statement in his application dated 23-04-2003 intimating the Registrar General that he ear lier obtained the permission to prosecute the LL.B. Course in Royal Academy of L aw, Oinam in the State of Manipur. Mr. Dey submits that the service of the peti tioner being whole time within the meaning of FR-11 of Fundamental Rules and Sub sidiary Rules of Government of Assam, which Rule is applicable to the employee/o fficers of the High Court in view of Rule 37 of the 1967 Rules providing that th e Rules and orders applicable to the Government servant of corresponding classes in the service of the State shall mutatis-mutandis regulate the service of the employees/ officers of the High Court, the petitioner is to maintain the devotio n to duty with absolute integrity, which the petitioner has failed to do by taki ng admission without permission of the competent authority. The learned counsel submits that since the petitioner’s service is whole time service, the permissio n to take admission and prosecute the study of LL.B. Course, which is also a ful l time Course, is necessary as the petitioner cannot attend the classes in the L L.B. Course at the same time in Oinam in the State of Manipur while attending hi s duties at Guwahati. Taking admission without the permission to prosecute the full time Course amounts to failure to maintain devotion to duty and absolute in tegrity and the said act on the part of the petitioner is unbecoming of a public servant, which also amounts to gross abuse or misuse of the official power as S ecretary to the then Hon’ble Chief Justice, submits the learned counsel. [16] Mr. Dey further submits that the grant of subsequent permission by the Registrar (Administration) on 02-06-2003 to prosecute the study would not validate the misconduct committed by the petitioner in taking admission without permission of the competent authority, more so, when such permission was obtain ed by making misleading statement in his application seeking permission dated 24 .03.2003 to the effect that he earlier obtained permission to take admission and prosecute the study in LL.B. Course. It has also been submitted that the petit ioner being the Secretary to the Hon’ble Chief Justice has misused his official power and position by taking the earned leave to appear in the 1st year LL.B. Co urse examination without informing that he took admission without any permission . It has also been submitted that grant of such leave to appear in the LL.B. ex amination would also not validate misconduct committed by him in obtaining the p ermission from the Registrar (Administration) on 02.06.2003 by making misleading statement in his application dated 23.04.2003. [17] Mr. Dey also submits that in the proceeding conducted against th e petitioner allegation of attending the classes on different dates in the month s of October and December, 2001, 2002 and 2003 has been conclusively proved by p roving the attendance registers maintained by the College and also by the eviden ce of the Principal of the College, who was examined in the said proceeding. Mr . Dey submits that even if it is taken that as because the petitioner took admis sion in the 1st and 2nd year LL.B. Course in the months of November, 2001 and 20 02, respectively, and as such he could not have attend the classes in the months of October, 2001 and 2002, the allegation that he attended the classes in the m onths of December, 2001 and 2002, apart from in the months of October and Decemb er, 2003 without obtaining permission from the competent authority to remain awa y from the headquarter, i.e. Guwahati, having conclusively proved, it cannot be said that there is no evidence to record the finding that the charge No.4 brough t against him is proved. Mr. Dey also submits that even if the petitioner has n ot been charged for unauthorized absence from his duties as Secretary to the Hon ’ble Chief Justice, there being proof that he on different dates in the months o f October and December in 2001, 2002 and 2003 attended the classes in Royal Acad emy of Law, Oinam in the State of Manipur, the factum of his absence from Guwaha ti is automatically proved, though the disciplinary authority has not brought an y charges for his unauthorized absence from duty, which, according to the learne d counsel, would not have any bearing on the charge proved against the petitione r. [18] Relating to the charge No.5 levelled against the petitioner, the learned counsel submits that the application filed by the petitioner for taking admission in the 1st, 2nd and 3rd year LL.B. Course on 12.11.2001; 11.11.2002 a nd 19.09.2003, respectively, were proved in the proceeding conducted against him , through the Principal of the college, wherefrom it appears that the petitioner was personally present on those dates in the said College, Oinam in the State o f Manipur, without obtaining any permission to remain away from the headquarter at Guwahati. Such positive evidence relating to the petitioner’s presence on th ose dates in Oinam in the State of Manipur could not be discredited by the petit ioner during cross-examination of the Principal, whose evidence was recorded in the disciplinary proceeding conducted against the petitioner, submits the learne d counsel. It is also submitted that the evidence of the Principal would not be come untrustworthy only because the petitioner’s attendance in the months of Oct ober, 2001 and 2002 was recorded in the attendance register, though he took admi ssion in the months of November, 2001 and 2002 in 1st and 2nd year LL.B. Course, respectively. Since the petitioner’s presence in Oinam in the State of Manipur on 12.11.2001; 11.11.2002 and 19.09.2003 is proved by documentary evidence, con tents of which the petitioner could not discredit, the charge levelled against t he petitioner, being charge No.5, is rightly held to be proved by the Enquiry Of ficer and consequently, the disciplinary authority has rightly inflicted the pun ishment on him, contends the learned counsel. The further contention is that th e defence as set up by the petitioner that he in fact sent those applications th rough special messenger, however, could not be proved by him by examining the me ssenger through whom the application for admission were sent to the college auth ority. Mr. Dey further submits that the petitioner also could not prove that he proceeded to Patna on 12.11.2001 for treatment and, therefore, it is impossible to remain present in Oinam in the State of Manipur on 12.11.2001 for taking adm ission in the 1st year LL.B. Course. [19] The learned counsel referring to FR-84, which is also made appl icable to the employees/officers of the High Court by virtue of Rule 37 of 1967 Rules, further submits that couple with FR-11, which provides that whole time of a Government servant is at the disposal of the Government, which pays him, the employees/officers of the High Court has to obtain prior permission and leave to take admission in any whole time Course like the LL.B. Course, otherwise the Hi gh Court would not be able to utilize the services of the employees/officers, if he is allowed to take admission and prosecute the study without permission. Su ch permission, according to the learned counsel, is necessary as the authority w hile granting permission would verify as to whether grant of permission would af fect discharge of his normal duty as employee/officer of the High Court. The le arned counsel submits that the petitioner after taking admission prosecute the s tudy and also received the benefit of the degree obtained, without obtaining pri or permission. [20] The learned standing counsel further submits that the scope of i nterference with the disciplinary proceeding as well as the finding of the Enqui ry Officer, in exercise of the power of judicial review, being limited, this Cou rt may not interfere with the disciplinary proceeding initiated and the discipli nary action taken against the petitioner on the basis of the enquiry report subm itted by the Enquiry Officer, based on cogent and reliable evidence adduced in t he proceeding. It has been submitted that the writ proceeding being not an appe al over the findings recorded by the Enquiry Officer in his report, would, there fore, not sit on appeal and interfere with the findings recorded by the Enquiry Officer when there are evidences to support the charges levelled against the pet itioner. It has, however, been submitted that the writ Court in exercise of the judicial review can naturally interfere with the findings, if there is no evide nce at all to support such findings, which is not the case in hand. The learned standing counsel, therefore, submits that the writ petition filed by the petiti oner deserves to be dismissed. Mr. Tiwari, learned counsel for the petitioner, in reply to the [21] submission made by the learned standing counsel, reiterating the submission made , which are noticed above, submits that it was within the knowledge of the then Hon’ble the Chief Justice about taking admission by the petitioner, which is evi dent from the leave sanctioned for appearing in the LL.B. examination. It has a lso been submitted that FRs-11 and 84 are of no assistance to the respondents as those provisions do not specifically stipulate taking prior permission for taki ng admission in any Course of study. Mr. Tiwari reiterates his submission that there is neither any Rule nor administrative instruction issued by the authority of the High Court imposing any bar in taking admission without permission of th e competent authority and as such, no disciplinary action can be taken against t he petitioner for taking admission and pursuing the LL.B. Course. Referring to the executive instruction issued by the Government of India, relating to the per mission for joining education institution by the Government servant, it has been submitted that the authority should be liberal in granting permission for joini ng the educational institution and ordinarily there should not be any objection to pursuit of knowledge of the Government servant and as such, the petitioner sh ould not be penalized for gathering knowledge by taking admission in law Course. [22] We have given our anxious consideration to the submissions made by the learned counsel for the parties and also perused the pleadings, apart fro m the materials available on records of the disciplinary proceeding produced by the learned standing counsel of the High Court. [23] By the amended charge sheet dated 29.05.2006 the charges of fail ure to maintain devotion to duty, absolute integrity and conduct unbecoming of a n officer of the High Court amounting to gross misconduct as well as gross abuse or misuse of official power and position were levelled against the petitioner, on the basis of the following allegations, in 5(five) charges. For better appre ciation, the allegations against each of the charges are quoted below:- (cid:28)Charge No.1 That on 12.11.2001, while you were working in the Principal Seat of Gauhati High Court as Secretary to Hon’ble the Chief Justice, you got yourself admitted into 1st year LL.B. Course in Royal Academy of Law, Oinam, District- Bishnupur in th e State of Manipur, without obtaining prior permission from the competent author ity. Charge No.2 That on 11.11.2002, while you were working in the Principal Seat of Gauhati High Court as Secretary to Hon’ble the Chief Justice, you got yourself admitted into 2nd year LL.B. Course in Royal Academy of Law, Oinam, District- Bishnupur in th e State of Manipur, without obtaining prior permission from the competent author ity. Charge No.3 That with dishonest intention to obtain post facto permission to regularize your act of getting admission in LL.B. Course, without prior permission of the autho rity, you submitted an application on 23.04.2003 before the Registry of Gauhati High Court at Guwahati, requesting the Registry to allow you to prosecute your s tudy in law from the Session 2002-2003 by making misleading statement to the eff ect that earlier you were granted permission by the Registry for prosecution of study in LL.B. Course (three years) but that due to some personal difficulties y ou could not complete the Course and that you intend to complete the Course for which you have already got admitted, whereas no such permission, whatsoever, was ever granted to you by the Registry prior to the date of your said application dated 23.04.2003. In the said application, to mislead the authority, you did no t mention the name of the Institution where, and the year in which, you had take n admission. In the said application you prayed for permission to prosecute stud y in law from the Session 2002-2003, whereas you were already a regular student of LL.B. Course in the Royal Academy of Law, Oinam in the State of Manipur from the Session 2001-2002. Charge No.4 That while you were working in the Principal Seat of Gauhati High Court at Guwah ati, as Secretary to Hon’ble the Chief Justice, you attended classes on 23 days and 05 days in the months of October 2001 and December 2001, respectively; for 1 st year LL.B. Course; 22 days and 05 days in the months of October, 2002 and Dec ember 2002 respectively; for 2nd year LL.B. Course; 17 days and 03 days in the m onths of October 2003 and December, 203, respectively; for 3rd year LL.B. Course , in royal Academy of Law, Oinam, in the State of Manipur, without obtaining per mission to remain away from your Headquarters, from the competent authority. Charge No.5 That while you were working in the Principal Seat of Gauhati High Court at Guwah ati, as Secretary to Hon’ble the Chief Justice, you had personally attended the office of the Principal, Royal Academy of law, Oinam, in the State of Manipur on 12.11.2002, 11.11.2002 and 19.09.2003 for submitting Application for Admission Forms for getting admission in the 1st year, 2nd year and 3rd year of LL.B. Cour se, respectively, without obtaining permission to remain away from your Headquar ters, from the competent authority. (cid:29) [24] The jurisdiction of the High Court under Article 226 of the Cons titution of India is circumscribed by the limit of judicial review to correct th e errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. The judicial review cannot be extended to the extent of adjudication of the case on merits as an appellate authority as the C ourt cannot act as an appellate authority on the finding recorded by the Enquiry Officer in the enquiry. The Court also cannot sit on appeal over the decision of the disciplinary authority. Being not the Court of appeal against the decisi on of the disciplinary authority, the Court also cannot, in exercise of its judi cial review, re-appreciate the evidences adduced in a disciplinary proceeding an d come to a finding different from one arrived at by the Enquiry Officer on the ground of possibility of having another view. If there are materials available on record by which a reasonable person can arrive at a decision that the charges levelled against a delinquent are proved, the Court would not interfere with th e disciplinary action taken, unless of Course, the punishment awarded is shockin gly disproportionate to the conscience of the Court. The Court, however, can i nterfere with the disciplinary action taken on the basis of the enquiry conducte d against the delinquent, if there is no evidence at all to arrive at the findin g that the charges levelled against him are proved. The standard of proof in a disciplinary proceeding unlike any criminal proceeding is not (cid:28)beyond all reason able doubt (cid:29) but it is (cid:28)preponderance of probabilities (cid:29). Hence, if there are som e materials on record to arrive at a conclusion that the delinquent has committe d the misconduct the Court would not interfere with the finding recorded by the Enquiry Officer in the report. [25] The Apex Court in Maharashtra State Board of Secondary and Highe r Secondary Education (supra) while reiterating the standard of proof required i n a disciplinary proceeding, i.e. (cid:28)preponderance of probabilities (cid:29) and not the p roof (cid:28)beyond reasonable doubt (cid:29), has opined that the standard of proof cannot be put in a strait-jacket formula and no mathematical formula could be laid on degr ee of proof. The probative value could be gauged from the facts and circumstanc es in a given case. The Apex court has also reiterated the settled principle of law that the strict rules of Evidence Act and the standard of proof envisaged th erein do not apply to departmental proceedings and it is open to the authority t o receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. The inferenc e from the evidence and circumstances must be carefully distinguished from conje ctures or speculation. There must be evidence direct or circumstantial to deduc e necessary inferences in proof of the facts in issue and there can be no interf erences unless there are objective facts, direct or circumstantial from which to infer the other fact, which it is sought to establish. If there are no positiv e proved facts, oral, documentary or circumstantial from which the inferences ca n be made, the method of inference fails and what is left is mere speculation or conjecture and hence when an inference of proof that a fact in dispute has been held or established, there must be some material facts or circumstances on reco rd from which such facts or inference could be drawn. [26] In Moni Shankar (supra), the Apex Court has also opined that the Courts exercising the power of judicial review are entitled to consider as to w hether while inferring commission of misconduct on the part of a delinquent offi cer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. It has also been held that inference must b e based on evidence which met the requirements of legal principles and the Court is entitled to arrive at its own conclusion on the premise that the evidence ad duced, even if is taken on its face value to be correct in its entirety, meet th e requirements of burden of proof, namely preponderance of probability, and on s uch evidence, if the test of doctrine of proportionality has not been satisfied, the Court was within its domain to interfere. The doctrine of unreasonableness is, therefore, giving way to the doctrine of proportionality. [27] The Apex Court in Nand Kishore Prasad (supra) has opined that th e disciplinary proceedings before a domestic tribunal are of a quasi-judicial ch aracter and hence the minimum requirement of the rules of natural justice is to be followed. It has also been opined that the domestic tribunal should arrive a t its conclusion on the basis of some evidence, i.e. evidential material which w ith some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. There is no dispute that the suspicion cannot be al lowed to take the place of proof even in domestic inquiries. The disciplinary i nquiry is also required to be conducted fairly without bias or predilection and in accordance with the relevant disciplinary rules and the Constitutional requir ements. The same view has also been reiterated by the Apex Court in Kuldeep Sin gh (supra), wherein it was held that the findings recorded in a disciplinary enq uiry can be interfered with by the High Court in exercise of the jurisdiction un der Article 226 of the Constitution, if such finding is perverse, i.e. if such f indings are not supported by any evidence or not based on the evidence adduced b y the parties or no reasonable person could have come to those findings on the b asis of that evidence. [28] In Narinder Mohan Arya (supra), the Apex Court while discussing the scope of judicial review of the disciplinary action and interference with th e finding recorded by the Enquiry Officer in the report has opined that when a d elinquent employee questions the findings arrived at in the departmental proceed ing, the Court should keep in mind that (1) the Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry; (2) in a domestic enquiry fairness in the procedure is a part of the principles of natural justice; (3) exercise of discretionary power involves two elements-( i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element; (4) it is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fai r play in action is the basis; (5) the Enquiry Officer is not permitted to trave l beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal and (6) suspicion or presumption cannot take the place of proof even in a domestic enquiry. There is no dispute to the proposition of law that in a discipli [29] nary proceeding, the delinquent must be afforded all reasonable opportunity of b eing heard, in compliance of the principles of natural justice, so that he can e ffectively defend himself in the proceeding, as held by the Apex Court in K.L. T ripathi (supra). The disciplinary action against a delinquent officer can be take [30] n by the disciplinary authority for any misconduct committed by him/her by condu cting the disciplinary proceeding in accordance with the relevant Rules and also by observing the principles of natural justice. Misconduct has been defined in Black’s Law Dictionary, Seventh Edition at Page 1013 thus:- A dereliction of duty; unlawful or improper behaviour. Affirmative misconduct has been defined as:- 1. An affirmative act of misreprese ntation or concealment of a material fact; intentional wrongful behavior. There must be an ongoing pattern of misrepresentation or false promises, as opposed t o an isolated act of providing misinformation. 2. With respect to a claim of es toppels against the federal government, a misrepresentation or concealment of a material fact by a government employee beyond a merely innocent or negligent mis representation. Official misconduct has been defined as- A public officer’s corrupt violation of assigned duties by malfeasance, misfeasance, or nonfeasance. - Also termed mis conduct in office; misbehavior in office; malconduct in office; misdemeanor in o ffice; corruption in office; official corruption. [31] The term (cid:28)misconduct (cid:29), therefore, implies a wrongful intention, and not a mere error of judgment. The word (cid:28)misconduct (cid:29) has to be construed wit h reference to the subject matter and the context wherein the term occurs, havin g regard to the scope of the Act or statute, which is being construed. Miscondu ct literally means wrong conduct or improper conduct. In usual parlance, miscon duct means a transgression of some established and definite rule of action, wher e no discretion is left, except what necessity may demand. Misconduct is a forbi dden act; carelessness; a forbidden quality of an act, and is necessarily indefi nite. Misconduct in office is unlawful behaviour or neglect by a public officer , by which the rights of a party have been affected. Thus the word ’misconduct’ though not capable of precise definit [32] ion, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. I t may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established a nd definite rule of action or code of conduct but not mere error of judgment, ca relessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. (State of P unjab -Vs- Ram Singh Ex-Constable [(1992) 4 SCC 54]). [33] The Apex Court in M.M. Malhotra (supra) has observed that the ra nge of activities, which may amount to acts, which are inconsistent with the int erest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exh austively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, been opined that though the word ’misconduct’ is not capable of precise definition but at the same time it must receives its connotation fro m the context that the delinquency in performance and its effect on the discipli ne and the nature of the duty. The Apex Court has further opined that the act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it see ks to serve. In A.L. Kalra (supra) the Apex Court has opined that failure to ke ep high standard of moral, ethical or decrous behaviour befitting of an officer by itself cannot constitute misconduct unless specific conduct falls in any of t he enumerated misconduct. [34] Part-V of 1967 Rules lays down how a High Court employee/officer is to conduct himself. Rule 41 provides the general conduct. It provides that every members of the High Court service shall at all times maintain absolute in tegrity and devotion to duty and no member of the High Court services shall act in a manner pre-judicial to the discipline and good order in the Registry. Rule 37 of the 1967 Rules made applicable the Rules and Orders for the time being in force and applicable to the Government servant of corresponding classes in the service of the State, to the members of the High Court services, subject to the provisions of the 1967 Rules. FR-11 of Fundamental Rules and Subsidiary Rules o f Assam provides that the whole time of a Government servant is at the disposal of the Government, which pays him. The members of the High Court services are i n whole time service and they are required to maintain absolute integrity and de votion to duty. They cannot act in a manner prejudicial to the discipline and g ood order in the Registry. They are required to perform their duties with absol ute integrity and with devotion and cannot take any other engagement, which inte rferes with the working hours of the High Court and in discharging his/her dutie s. Admission in any course of study, which requires attendance in classes inter fering with the working hours of the High Court, therefore, naturally requires p rior permission as it interferes with the normal work of the High Court, which w ould results in not devoting to duty, thereby constitute misconduct. [35] The contention of the learned counsel for the petitioner that fo r taking admission in the law Course, where regular attendance is necessary and the timing of the classes clashes with the working hours of the High Court, the permission is not necessary and the authority should be liberal in granting perm ission, therefore, cannot be accepted. The circular issued by the Government of India relating to the permission for joining the educational institution by the Government servant do not supports such contention of the learned counsel for t he petitioner, the said circular being relating to the permission for joining th e education institution outside the normal working hours. No doubt ordinarily t here can be no objection to pursue of knowledge by any member of the High Court services in their leisure hours but it must be subject to the condition that suc h pursuit in no way detract them from efficient discharge of duty, which necessi tates taking permission before joining the educational institution or course of studies, as the joining of such institution or courses involves commitment about attendance at specific hours and absence from duties during the period of exami nations as well as for attending the classes. [36] On the backdrop of what have been discussed above, we shall now proceed to deal with the charges levelled against the petitioner and the discipl inary action taken against him. As noticed above, the charge Nos.1 and 2 levell ed against the petitioner is based on the allegation of taking admission in the 1st and 2nd year LL.B. Course in Royal Academy of Law, Oinam in the State of Man ipur without obtaining permission from the competent authority and the charge No .3 is based on the allegation that the petitioner by making a statement about ea rlier grant of permission by the Registry to prosecute the study in LL.B. Course , mislead the authority to grant permission on 02.06.2003, though no such earlie r permission was granted to the petitioner to take admission. The charge Nos.1, 2 and 3 are interrelated. Charge No.3 in effect is countering the defence of e x-post-facto approval of taking admission in relation to charge Nos.1 and 2. Pr oof of allegations in charge Nos.1 and 2 are, therefore, depends on the proof of the allegation in charge No.3. [37] It is not in dispute that the petitioner took admission in the 1 st and 2nd year LL.B. Course on 12.11.2001 and 11.11.2002, respectively, without obtaining prior permission, though required. The defence of the petitioner is t hat he took admission on the verbal permission of the then Hon’ble Chief Justice and the action on the part of the Registrar (Administration) in granting the pe rmission on 02.06.2003 amounts to granting ex-post-facto permission to prosecute the study in LL.B. Course. For better appreciation, the letter dated 23.04.200 3 submitted by the petitioner seeking permission is reproduced below:- (cid:28)Sir, I have the honour to state that earlier I was granted permission by the Registry for prosecution of study in LL.B. Course (three years) but due to some personal difficulties I could not complete the course. Now I intend to complete the cour se and I have already got admitted. I, therefore, request your honour kindly to allow me to prosecute my LL.B. studies from the session 2002-2003 without hampe ring my normal official duties. Yours faithfully Sd/- R. Barman (cid:29) [38] The further contention of the petitioner is that unless the 1967 Rules provides for or any administrative order is issued by the authority requi ring prior permission to pursue any course of study, no disciplinary action can be taken against an employee/officer of the High Court for taking admission in a ny course of study without permission, also can not be accepted for the reason, as has been discussed above. When an employee/officer is required to discharge his duty with absolute integrity and devotion, he has to take prior permission f rom the competent authority to take admission in any course of study, which inte rferes with the working hours of the High Court. No specific Rules or administr ative order is required to be issued by the authority for that purpose as it is the obligation on the part of the employee/officer to devote to his duties since rely with utmost devotion and perform his duties during the working hours. [39] The petitioner in the written statement filed has also taken the plea that he was granted permission by the Registry vide order No.HC.V-98/91/22 , 442-45/Estt. dated 06.01.1991 allowing him to take admission in the LL.B. Cour se in the year 1991. The said fact is not in dispute. The aforesaid applicatio n dated 23.04.2003 (Exhibit-53), reveals that the petitioner did not mention tha t he was granted permission to take admission and prosecute the study in LL.B. C ourse in 2001 or in 2002. What the petitioner has stated in the said applicatio n is that he was earlier granted permission but he could not complete the course and as such, intends to complete the same, in which he has taken admission. It is also evident from the deposition of witnesses and the materials available on record, more particularly the deposition of witness Nos.2, 3 and 7, that the af oresaid application filed by the petitioner was placed before the then Hon’ble C hief Justice, who accorded the permission, which was communicated by the Registr y on 02.06.203 (Exhibit-54). There is nothing on the record to suggest that the then Hon’ble Chief Justice was misled in according his approval to allow the pe titioner to prosecute the study in LL.B. Course. That apart, the then Hon’ble t he Chief Justice also on 16.06.2003 (Exhibit-12) granted earned leave to the pet itioner with effect from 21.07.2003 to 13.08.2003 for appearing in the LL.B. exa mination under Manipur University. All these factors lead to the conclusion, by applying the principles of standard of proof, i.e. preponderance of probabiliti es, that it was within the knowledge of the then Hon’ble Chief Justice about the admission taken by the petitioner, who was the Secretary to the Hon’ble Chief J ustice. Such admission was, therefore, taken with his tacit consent. In the no te of the then Hon’ble Chief Justice (Justice B.K. Roy) dated 26.09.2005, which is available on record, also reflects the knowledge of the then Chief Justice, d uring whose tenure the petitioner took admission. In view of the above, we are of the considered opinion that ther [40] e is no material to hold that the charge No.3 levelled against the petitioner is established. The subsequent permission dated 02.06.2003 (Exhibit-4) coupled wit h the earned leave granted by the then Hon’ble Chief Justice on 16.07.2003 to ap pear in the LL.B. examination amounts to grant of ex-post-facto permission to th e petitioner and hence, no disciplinary action can be taken against him on the b asis of the charge Nos.1 and 2. [41] Charge No.4 relates to attending the classes in Royal Academy of Law, Oinam in the State of Manipur in the months of October and December, 2001, 2002 and 2003 for 1st, 2nd and 3rd year LL.B. Courses. The Enquiry Officer fou nd that the said charge is proved on the basis of the attendance register of the College and the deposition of the Principal of the said College. No credence c an be given to the attendance register of the College, on the face of the allega tion in charge No.1 that the petitioner took admission in the 1st year LL.B. Cou rse on 12.11.2001 without permission, wherein it has been reflected that the pet itioner attended the 1st year LL.B. Course in the month of October, 2001, i.e. e ven before taking admission. Marking attendance of the petitioner in the regist er in the month of October, 2001, even before the petitioner took admission, mak es the attendance register very doubtful. Much credence also cannot be given to the evidence of the Principal, who deposed on the basis of such attendance regis ter. That apart, the petitioner at the relevant point of time was the Secretary of the then Hon’ble Chief Justice against whom no charge of unauthorizedly abse nce from his duty, on those dates when his presence was marked in the classes in the college in Manipur, was brought against him, which signify his presence in Guwahati and discharging his duties as Secretary to the then Hon’ble Chief Justi ce. That being the position, it cannot be said that there are evidences on reco rd to substantiate the charge No.4. [42] This leads to the last charge being charge No.5, which is based on the allegation that the petitioner on 12.11.2002, 11.11.2002 and 19.09.2003 w as personally present in the College while submitting the application form seeki ng admission in the 1st, 2nd and 3rd year LL.B. Course. The first part of the c harge, i.e. the petitioner’s presence on 12.11.2002 in the College, on the face of the allegation in the first charge that the petitioner took admission on 12.1 1.2001, is not correct. The Enquiry Officer has recorded the finding that the c harge No.5 is proved on the basis of the admission forms proved in the proceedin g, which mention the dates when the petitioner was present in the college. The petitioner’s defence, on the other hand, is that he sent those application forms through special messenger and never personally submitted those application form s. It is also the defence of the petitioner that on 12.11.2001 he proceeded to Patna for treatment after obtaining the leave and he was treated in Patna on 13. 11.2001 and was out of station upto 18.11.2001. Further defence of the petition er is that he was on duty in Guwahati as Secretary to the Hon’ble Chief Justice on 11.11.2002 and 19.09.2003 and there is no allegation that he was unauthorized ly absent from duty on those dates and as such, the contents of those admission forms cannot be taken in its face value for recording the finding that the charg e No.5 against him has been established. [43] The petitioner could produce the prescription dated 13.11.2001 f rom a Doctor of Patna in the disciplinary proceeding. It is also proved that th e petitioner proceeded to Patna for taking treatment on 12.11.2001 and was out o f station upto 18.11.2001 and hence, it is not possible on his part to personall y go to Manipur and submit the application forms on 12.11.2001. That apart, the re is no allegation that the petitioner was unauthorizeddly absent from duty eit her on 12.11.2001 or on 11.11.2002 or on 19.09.2003, on which dates it has been alleged that he was personally present in Oinam in the State of Manipur. In the absence of any allegation of unauthorized absence from duty from Guwahati as Se cretary to the Hon’ble Chief Justice, it is highly improbable that the petitione r was personally present on 12.11.2001; 11.11.2002 and 19.09.2003 at the time of filing the admission forms seeking admission in the 1st, 2nd and 3rd year LL.B. Course in Oinam in the State of Manipur, which gives credence to petitioner’s d efence that those applications were sent by special messenger and he was not per sonally present in Oinam in the State of Manipur. The finding of the Enquiry Of ficer, therefore, in relation to charge No.5 also cannot be sustained. In view of the aforesaid discussion, we are of the considered op [44] inion that there is no material to record the finding that the charges levelled against the petitioner are proved, by applying the standard of proof, i.e. the p reponderance of probabilities. The impugned order of the then Hon’ble Chief Just ice dated 18.12.2006 as well as the order dated 17.01.2007 passed by the Registr ar General, imposing the penalty, are, therefore, set aside. [45] The writ petition is accordingly allowed. No costs.