The Deputy Chief Security Commissioner, Railway Protection Force, South Central Railway, Secunderabad v. T. Raj

: August 10, 2007 Per G.S. Singhvi, CJ This is an appeal for setting aside order dated 1.5.2007 passed by the learned Single Judge, whereby he quashed the respondent’s dismissal from service and ordered his reinstatement with continuity of service. Respondent – T. Raj joined the service as Safaiwala (Constable) in Railway Protection Force (RPF), South Central Railway on 26.1.1985. After eight years, he was posted in the Dog Squad of RPF at Secunderabad. He applied for grant of special increment in the pay scale of Rs.820 – 1200 (RSRP) by claiming that his wife had undergone Tubectomy operation on 9.9.1987. Chief Security Commissioner, RPF, South Central Railway, Secunderabad (respondent No.2) vide his Memo dated 27.11.1997 accepted the claim of the respondent and sanctioned special increment in his favour. In the meanwhile, the respondent availed second class privilege passes Nos.726569 dated 24.1.1995 and 726738 dated 27.6.1995 for himself, wife, two sons aged 11 years

(Ramakrishna) and 7 years (Dilip) and daughter (Srilatha) aged 8 years. For this purpose, he filed declaration dated 17.1.1994 in which the date of birth of his second son was shown as 15.8.1988. On enquiry, the concerned authorities found that the respondent’s second son was not born to Smt. Anasuya, but to one Kusumalatha, who was not married to the respondent. Thereupon, a departmental enquiry was initiated against the respondent on the following charges: Charge No.I Sri T. Raj, while working from 20.5.1993 as Safaiwala at RPF Dog Squad at CKL/SC has submitted his declaration for Railway Free Pass indicating one Dilip Kumar as his son which is not true and thus violated Rule 3 (i), (iii) of Railway Service Conduct Rules. Charge – II Sri T. Raj, while working as Safaiwala at RPF Dog Squad, Dog Kennel at Chiakalguda, SEcunderabad from 20.5.1993 and engaged in business of Running Private Kennel and violated Rule 15 of Railway Services Conduct Rules, 1956. The enquiry officer submitted report with the finding that both the charges have been proved against the delinquent. A copy of the enquiry report was supplied to the respondent and he was given opportunity to make representation. He submitted representation dated --.01.1996 and reiterated that the allegations levelled against him were not correct. He pleaded that his second son, namely, Dilip was born from his second wife Smt. Kusumalatha, who was also running a private kennel in the name of her son Dilip for the purpose of earning livelihood. Respondent No.1 did not feel convinced with the explanation of the respondent and passed order dated 16.2.1996 for the latter’s dismissal from service. The appeal and revision filed by the respondent were dismissed by respondent No.2 and Director General, RPF (respondent No.3) respectively vide their orders dated

17.7.1996 and 13.8.1999. The respondent challenged the order of dismissal as also the appellate and revisional orders in Writ Petition No.1190 of 2000 by contending that the allegations levelled against him do not constitute misconduct and that there is no evidence to prove that he was running a private kennel. He also pleaded that respondent No.1 did not consider his explanation in a correct perspective and, on that account, his cause had been prejudiced. In the counter filed by Shri P.S. Rawal, who was then holding the post of Deputy Chief Security Commissioner, it was averred that the order of punishment was passed against the petitioner because he was found guilty of availing passes by filing false declaration about his second son and of running a private kennel in the name of Raja Reddy. Shri Rawal pleaded that the findings recorded by the enquiry officer were based on correct appreciation of evidence and the punishment imposed by the disciplinary authority was commensurate to the misconduct found proved against the writ petitioner.

The learned Single Judge briefly adverted to the factual matrix of the case and nullified the order of punishment by observing that the charges found proved against the petitioner were not serious enough to warrant his dismissal from service. This is evinced from the following extracts of the order under challenge: “The sum and substance of the second charge is that the petitioner has been running a private kennel and doing some business. It is not the case of the respondents that any loss was caused to the department due to running of such kennel by the petitioner. May be the petitioner is not entitled to run any such business, but the fact remains that he is only a Safaiwala and his statement for the first charge that he had been married for the second time and Dilip was his son through the second wife, which was found to be not correct, shows his innocence and, hence, it must be deemed that the petitioner did such business innocently.

Further, it is not the case of the respondents that the petitioner had committed any such misconduct or some other misconduct of similar nature during the 11 years of service rendered by him. Under these circumstances, I am of the opinion that the shockingly punishment of dismissal disproportionate to that of the misconduct alleged and proved against the petitioner.” service The learned Single Judge also noted the argument of the learned counsel for the petitioner that neither of the charges falls within the ambit of Rule 156 of the Railway Protection Force Rules, 1987, but did not record any finding on that issue. We have heard learned counsel for the parties and scrutinised the record. In our opinion, the order under challenge is liable to be set aside because while setting aside the order of punishment, the learned Single Judge assumed the role of the appellate authority and made observations based on pure conjectures.

The learned Single Judge also committed a serious error by invoking the doctrine of proportionality ignoring the parameters laid down by the Supreme Court for exercise of the power of judicial review in such matters. It is settled law that the High Court’s power of judicial review of the disciplinary action against the delinquent employee is very limited. The High Court can interfere with the order of punishment if it is found to be vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation is found to have prejudiced the cause of the delinquent. The High Court can also nullify the order of punishment if the finding of guilty recorded by the enquiring/ disciplinary authority is based on no evidence or is influenced by extraneous factors/considerations. The doctrine of proportionality and Wednesbury Rule can be invoked by the High Court if it is convinced that the punishment imposed by the employer is per se arbitrary/capricious or wholly disproportionate to the misconduct found proved.

Of course, the last mentioned ground is not available in cases involving fraud, misrepresentation or misappropriation/embezzlement of public funds. The parameters for exercise of the High Court’s power to issue a writ of certiorari are also well defined. A writ, order or direction can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals or quasi-judicial authorities. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal or quasi-judicial authority acts illegally or improperly, i.e., it decides a question without giving an opportunity of hearing to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is supervisory in nature and not appellate one.

This necessarily means that the finding of fact reached by the inferior Court, Tribunal, etc., as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. An error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal or quasi- judicial authority can be corrected only if it is shown that in recording the said finding, the Court etc., had erroneously admitted inadmissible evidence and the same has influenced the impugned finding.

Similarly, a finding of fact based on no evidence would be regarded as error of law which can be corrected by issuing a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, mere possibility of forming a different opinion on re-appreciation of evidence produced by the parties is not sufficient for issue of a writ of certiorari. We may now notice some judicial precedents in which extent of the court’s power of judicial review of disciplinary action has been considered. In State of Orissa v. Bidyabhushan Mohapatra [1] , the Supreme Court considered whether the High Court can interfere with the order of punishment simply because finding recorded by the enquiry officer in respect of some charges is found to be vitiated by an error of law and whether it can go into the sufficiency and adequacy of punishment.

While reversing the order of Orissa High Court, which had allowed the writ petition filed by the respondent, their Lordships of the Supreme Court observed: “But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an inquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were ‘unassailable’, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable.

Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” I n State of A.P. v. Sree Rama Rao [2] , the Supreme Court indirectly reiterated the proposition laid down in Bidyabhushan Mohapatra (supra) and held: “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 inquiry against a public servant; it is concerned to determine whether the inquiry 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 inquiry 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 inquiry 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 capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.

But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the 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 under Article 226 of the Constitution.” I n State of Madras v. G. Sundaram , the Constitution [3] Bench of the Supreme Court laid down the following proposition:

High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It cannot consider adequacy of that evidence to sustain the charge.

In State of A.P. v. C. Venkata Rao [4] , a three Judges Bench of the Supreme Court held as under: “In considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court need not be applied.

Even if that rule is not applied by a domestic tribunal in any inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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 to review the evidence and to arrive at an independent finding on the evidence.

An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.” (emphasis supplied) In B.C. Chaturvedi v. Union of India [5] , the Supreme Court, while considering the appellant’s challenge the order of punishment passed as a sequel to the departmental enquiry held against him, highlighted the limited scope of judicial review by making the following observations: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.

Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the 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. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.

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 disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate 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 that case.” In Apparel Export Promotion Council v.

A.K. Chopra [6] , the Supreme Court again considered the High Court’s power to interfere with the disciplinary proceedings and held: “It is a settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole findings of fact-finding authorities. Once fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities.

Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Further, it is a well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at.

Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.” The applicability of the doctrine of proportionality I n Ranjit Thakur v. Union of India [7] , the Supreme Court applied the ‘doctrine of proportionality’ and interfered with the discretion exercised by the employer to punish delinquent employee.

Some of the observations made in that judgment are extracted below: “Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” In Union of India v.

G. Ganayutham , the doctrine of [8] proportionality was considered along with Wednesbury rule and the following propositions were laid down: “(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator.

This is the Wednesbury test. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational – in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. (3) (a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts tests, merely exercise a secondary judgment to find out if the decision- maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4) (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgent of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.” In State Bank of India v.

Samrendra Kishore Endow [9] , State of Uttar Pradesh v. Ashok Kumar Singh [10] , State of Uttar Pradesh v. Nandkishore Shukla [11] , State of Punjab v. Baxi Singh [12] , Uttar Pradesh State Road Transport Corporation v. A.K. Parul , Union of India v. J.R. Gheman [13] [14] , the Supreme Court disapproved invoking of the doctrine of proportionality by the High Courts. I n Om Kumar v. Union of India [15] , the Supreme Court considered the applicability of the ‘doctrine of proportionality' in the context of Article 14 of the Constitution, referred to the judgments in Ranjit Thakur v. Union of India (supra), B.C. Chaturvedi v. Union of India [16] and held: referred this Court “1) In this context, we shall only refer to these cases. In India Ranjit Thakur v. Union of “proportionality” in the quantum of punishment but the Court observed that the punishment was “shockingly” disproportionate to the misconduct proved.

In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham.” 2) Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment.

Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.” In Regional Manager, U.P. SRTC v. Hoti Lal , the [17] Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under: “The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice.

A mere statement that it is disproportionate would not suffice. It is not only the amount involved by the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional.” (underlining is ours) In Director General, RPF v. Ch. Sai Babu [18] , the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed: imposed

Normally, the punishment the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and delinquent person concerned works.

the department/establishment in which The views expressed in the above noted cases have been reiterated in the recent judgments – Hombe Gowda Educational Trust v.

State of Karnataka [19] , Commissioner of Police v. Syed Hussain [20] , Srivastava [21] . and State of U.P. v. Sheo Shanker Lal In view of the above discussion, we would have set aside the order under challenge and remanded the matter to the Single Bench for fresh adjudication of the writ petition, but keeping in view the fact that while imposing the extreme penalty of dismissal, appellant No.1 did not consider the factors like the total length of service of the respondent, his position in the hierarchy of service, his past record and the impact of the misconduct committed by him on the establishment of the Force, we feel that ends of justice will be met by remitting the case to the disciplinary authority to re-consider the entire matter and pass fresh order in accordance with the relevant statutory provisions after giving an opportunity of personal hearing to the respondent. We hope and trust that the disciplinary authority will, keeping in view the fact that the respondent was holding one of the lowest posts in the service and the gravity of the misconduct found proved against him, take a lenient view.