IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 14934 of 2007 DATE OF DECISION: February 06, 2009 Chander Singh Rathi .........PETITIONER(S) VERSUS State Bank of India and Another ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Ms. Geeta Singhwal, Advocate, for the petitioner. Mr. Vikas Chatrath, Advocate, for the respondents. AJAI LAMBA, J. Challenge in this writ petition under Article 226 and 227 of the Constitution of India is to order Annexure P-3 vide which the respondent no. 2 has inflicted the penalty of “bringing down the petitioner to a lower stage in the scale of pay by two stages for two years with cumulative effect. Petitioner preferred an appeal. The appeal has been dismissed vide the other impugned order Annexure P-5. Learned counsel for the petitioner has argued that the decision making process is vitiated in so much as the petitioner has not been granted any permission to lead evidence in defence although the same had been asked for vide communication dated 03.07.2006. On facts, it has been contended that the main objection against the conduct of the petitioner is of his going to Shimla and staying there. It has been argued that the petitioner was never called back to Rohtak. The C.W.P. No. 14934 of 2007 -2- General Manager of Rohtak Branch was in fact at fault and he should not have sent mixture of denomination of currency notes. Learned counsel for the respondents has argued that the petitioner has been given opportunity of hearing. The petitioner has cross examined witnesses as is reflected from the enquiry report. The inquiry proceedings were closed on 28.06.2006. This fact was known to the petitioner. However, the petitioner did not make any application prior to this given date. Under these circumstances, the application made subsequently was not required to be taken into account. Learned counsel for the respondent has pointed out that the petition itself is required to be dismissed because the basis for taking action against the petitioner is the inquiry report. Inquiry report itself has not been challenged in these proceedings. The enquiry report has been placed on record with the written statement for consideration of the Court. Before proceeding further, the scope of interference by writ court with an administrative decision is required to be considered. In regard to the power of judicial review, in Govt. of A.P. and others v. Mohd. Nasrullah Khan, 2006(2) RSJ 14 , it has been held that the High Court under Articles 226/227 of the Constitution of India does not act an an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in miscarriage of justice or violation of principles of natural justice. In the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006(4) RSJ 57., the Hon'ble Supreme Court of India has held that once a domestic tribunal based, on evidence comes to a particular conclusion, normally, it is not open to the tribunal and courts to C.W.P. No. 14934 of 2007 -3- substitute their subjective opinion in place of the one arrived at by the domestic tribunal. The Tribunals are not required to sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. In Y.P. Sarabhai v. Union of India and another, 2006(3) RSJ 386, the following has been held (in para-9) by the Hon'ble Supreme Court of India:- “9. This Court has repeatedly held that the factual finding of the Disciplinary Authority after holding a detailed enquiry and after going through elaborate evidence are not assailable in the courts unless the breach of principles of natural justice or the violation of any rules or any material irregularity on the face of record is alleged and shown. .........” In Reliance Energy Limited v. Maharashtra State Road Development Corporation Limited, (2007) 8 SCC 1, the Hon'ble Supreme Court of India has held that in matters of judicial review, the basic test is to see whether there is any infirmity in the decision-making process and not in the decision itself. This means that the decision-maker must understand correctly the law that regulates his decision-making power and he must give effect to it. Otherwise, it may result in illegality. Also, in Bank of India v. T. Jogram, (2007) 7 SCC 236, it has been held by the Hon'ble Supreme Court of India that by now it is well settled principle of law that judicial review is not against the decision. It is against the decision-making process. The Hon'ble Supreme Court of India in Coimbatore District Central Cooperataive Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, (2007) 4 Supreme Court Cases C.W.P. No. 14934 of 2007 -4- 669. It has been held in paras 29 and 30 that:- “29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on 'no evidence' or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it. 30. In our opinion, therefore, the High Court was not right in exercising power of judicial review under Article 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the Management and/or of the Labour Court. To us, the learned counsel for the appellant- Bank is also right in submitting that apart from charges 1 and 2, charges 3 and 4 were 'extremely serious' in nature and could not have been underestimated or underrated by the High Court.” The gist of the law laid down by the Hon'ble Supreme Court of India in the judgments cited above, therefore, is that the basic test is to see whether there is any infirmity in the decision-making process and not in the C.W.P. No. 14934 of 2007 -5- decision itself. Judicial review is not against the decision. This court, while exercising writ jurisdiction, is not required to act as an appellate authority. The jurisdiction is confined to correcting error of law or procedural error, if any, resulting in miscarriage of justice or violation of principles of natural justice. This court is not called upon to substitute its subjective opinion in place of the one arrived at by the authorities in exercise of their power. Finding of fact recorded by the disciplinary authority, after holding a detailed inquiry and after going through elaborate evidence, is not assailable in the court unless breach of principles of natural justice or the violation of any rule or any material irregularity on the face of record is alleged and shown. If an action taken by any authority is contrary to law, improper, unreasonable, irrational, injudicious and arbitrary, a court of law can interfere with such decision by exercising the power of judicial review. Under the circumstances, the petitioner is required to show that some procedural error has resulted in miscarriage of justice or there has been violation of principles of natural justice. The petitioner is required to establish defect in decision making process. It transpires that the petitioner was deputed in Rohtak Branch ofState Bank of India. A sum of Rs. 40 crores was to be remitted on 28.12.2004, to Shimla. The entire cash remittence was packed in the presence of the petitioner at Rohtak Branch, however, the petitioner took the entire remittence as unsorted. Under the circumstances the cash was required to be sorted out in Shimla. The petitioner maintained his stay at Shimla in such a way so as to derive maximum personal benefits, ignoring/jeopardising the Bank's interest. C.W.P. No. 14934 of 2007 -6- In writ jurisdiction, the facts are not to be considered in detail. Suffice to say that the enquiry officer indicted the petitioner on all five charges. The enquiry report has been considered by the Disciplinary Authority, as is evident from Annexure P-3. The findings that form the basis for awarding punishment are:- 1. The petitioner manipulated his stay at Shimla to derive maximum personal benefit ignoring/jeopardising the Bank's interest. 2. The petitioner charged local conveyance from Holiday Home to Shimla Branch and back for 135 days inclusive of Sundays/holidays/leaves whereas actual stay of the petitioner in the Holiday Home was for 103 days. 3. The petitioner remained on leave without permission to leave station for 11 days. The petitioner further remained absent from Shimla Branch for 17 days without any application/sanction from competent authority and remained out of Shimla. For the aforesaid 28 days, the petitioner claimed full haulting allowance to which the petitioner was not entitled. 4. Petitioner claimed haulting allowance for the prefix and suffix days to the leaves/absence whereas the petitioner was out of station on the said days. 5. The petitioner remained in Shimla Branch as per attendance marked by him on certain days, however, no sorting of cash was done by the petitioner on those days. Considering the fact that four of the charges had been proved and charge no. 1 had been partly proved, the penalty as given hereinabove has been imposed vide order Annexure P-3. The petitioner preferred an appeal on various grounds which have been considered as is evident from perusal C.W.P. No. 14934 of 2007 -7- of order Annexure P-5. So as to consider the first contention of the learned counsel, although it has been argued that petitioner was not granted permission to lead evidence in defence during enquiry proceedings, the enquiry report has not been challenged. The enquiry report is the basis of passing impugned orders Annexures P-3 & P-5. On a perusal of the inquiry report, I find that it stands recorded that although an opportunity was given to the petitioner to have his defence representative, however, the petitioner exercised option of defending himself. The hearings before the Inquiry Officer were held from 10.01.2006 to 28.06.2006. Contention of the learned counsel that the petitioner wanted to lead evidence in defence, however, opportunity was not given, cannot be accepted because the petitioner made the request on 03.07.2006 after the closure of the inquiry proceedings. For the period the enquiry proceedings were pending and were going on, the petitioner did not make any such request for bringing evidence in defence. The petitioner has been given opportunity of being heard as is made out from the enquiry report as also the impugned orders. The petitioner cross-examined the witnesses - PW-1, PW-III and PW-IV produced on behalf of the management. It stands established that principle of natural justice has been followed. I find that there has been no miscarriage of justice as the material and evidence collected during enquiry forms the basis for awarding penalty. In this view of the matter, contention of the learned counsel for the petitioner on the first contention, has to be rejected. So far as the contention of the learned counsel for the petitioner to the effect that the petitioner could have been called back to Rohtak is C.W.P. No. 14934 of 2007 -8- concerned, I find that it is not in dispute that petitioner was required to take to Shimla only sorted cash. Cash amount was fairly heavy i.e. 40 crores. The conclusion drawn by the Enquiry Officer and subsequently by the punishing authority to the effect that the petitioner took unsorted cash only so as to manage his stay there, is based on the facts and circumstances of the case. No fault can be found with the findings recorded on the issue. The material taken into account against the petitioner is essentially documentary in nature. The gist of allegations of which notice has been taken in earlier part of the order indicates that not only the stay at Shimla but the petitioner has also been found guilty of other charges that relate to his misconduct during his stay at Shimla. I also do not find the penalty to be disproportionate to the acts of misconduct of the petitioner. In view of the facts and circumstances of the case, I find that there is sufficient material available on the record to indicate misconduct on the part of the petitioner so as to invite the penalty imposed. The action is reasonable and has been taken by an authority having competent jurisdiction. No ground for judicial review of the orders is made out. Petition dismissed. 06.02.2009 (AJAI LAMBA) shivani JUDGE