1 wp 271.97.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 271 OF 1997 Dattaram Narayan Sarafare ..Petitioner. Vs. The Registrar, Office of the Lok Ayukta & Up Lok Ayukta & Anr. ..Respondents. Mr. S.M.Dharap a/w Mr.Anjali Helekar for Petitioner. Mr.Milind More, A.G.P. for Respondents/State. CORAM : D.K.DESHMUKH & K.K.TATED, JJ. DATED : 23/02/2011. PC: 1 By this Petition under Article 226 of the Constitution of India, Petitioner challenges the order dated 30th September, 1996 passed by Respondent no.1 by virtue of which compulsory retirement order was passed. 2 A few facts of the matter are as under: The Petitioner joined the services of Respondents with effect from 4th December, 1973, when the Petitioner was 2 wp 271.97.doc working as a Naik in the office of Respondent no.1. Some complaints were received against him about corruption, issuing false letter etc. Therefore, an order dated 23rd January, 1996 was passed suspending him from service under the provisions of Maharashtra Civil Service Rules, 1981 as Disciplinary Committee was being constituted under the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. 3 Thereafter, the Respondents appointed Mr.K.S. Tamhanekar, Assistant Registrar of the office of the Lok Ayukta as Enquiry Officer on 19th February, 1996. The enquiry proceedings commenced from 27/29th February, 1996. The Respondent served all documents as required by law on the Petitioner for carrying out Departmental Enquiry. The Respondent also conveyed the names of the witnesses viz. Shri S.P.Sagvekar, Shri S.N.Lad and Shri S.D.Thakur to the Petitioner. After following due process of law, the Enquiry Officer submitted his report to the Respondent. On the basis of Enquiry Report and finding, the Respondent issued impugned order dated 30th September, 1996 on the Petitioner and same is challenged by him under Article 226 of the Constitution of India. 3 wp 271.97.doc 4 The learned counsel appearing on behalf of the Petitioner submits that the Enquiry Officer has erred in not complying with the principles of natural justice. The finding of Enquiry Officer is perverse, there being no evidence to substantiate the allegations made against the Petitioner. He further submits that the reasoning given by the Enquiry Officer is against justice, equity and good conscience and the order passed by him is liable to be set aside. He further submits that the Enquiry Officer should have considered the contradictions in the evidence of the witnesses regarding the amount, place, date and other details of the alleged incidence. He submits that in the absence of specific finding by the Enquiry Officer as to the involvement of the Petitioner in the preparation of forged document, mere drawing of an inference without any basis is totally illegal and improper. On the basis of those submissions, the learned counsel appearing on behalf of Petitioner submits that the impugned order dated 30th September, 1996 issued by the Respondent is liable to be set aside. 5 On the other hand, learned AGP appearing on behalf of Respondents submits that the Respondent considered the evidence on record and passed the impugned order. He submits that the Enquiry Officer allowed Petitioner to cross-examine the 4 wp 271.97.doc witnesses at length. Before passing the impugned order the Enquiry Officer followed the principles of natural justice by giving him full opportunity to defend himself against charges levelled against him. In view of these facts, the learned AGP appearing on behalf of Petitioner submits that there is no substance in the present Writ Petition and same is liable to be dismissed with costs. He submits that while acting under Article 226 of the Constitution of India, High Court should not interfere with the findings recorded in the Departmental Enquiry by the Disciplinary Authority or the Enquiry Officer as a matter of course. He submits that this Court cannot sit in Appeal over those findings and assume the role of Appellate Authority. 6 We heard both the counsel at length. We perused the record and considered the evidence on record. The following charges are held to be proved against the Petitioner: i) The Petitioner received an amount of Rs.20,000/- between the period from 10th July, 1994 to 29th August, 1994, from Shri S.P. Sagvekar assuring him that he would secure for him an employment in the Bombay Municipal Corporation. ii) The Petitioner misused the note dated 5th October, 1994 given by Shri N.Jairaman, Up-Lokayukta Maharashtra State 5 wp 271.97.doc Mumbai to Shri K.S.Barai, I.A.S. Additional Municipal Commissioner, Bombay Municipal Corporation for meeting him by furnishing xerox copy of the said note to Shri S.P.Sagvekar. Thus, made misuse of it. iii) The Petitioner assured Shri S.N.Lad that he would secure employment for him and demanded an amount of Rs.5,000/-. 7 For proving these charges, three witnesses were examined viz. S.P.Sagvekar, S.N.Lad and S.D.Thakur. All these witnesses specifically stated that Petitioner demanded the amount for giving them employment and inspite of making the payment he failed to obtain any employment for them. Not only that the Enquiry Officer specifically held that the Petitioner misused the letterhead of Jainarayan, Up Lokayukta. At the time of enquiry, the Respondents gave full opportunity to the Petitioner to cross- examine these three witnesses and also to produce evidence oral or documentary in support of his case. After considering the enquiry report the Respondent issued the impugned order dated 30th September, 1996 of compulsory retirement. It is to be borne in mind that the High Court under Article 226 of the Constitution of India can not interfere with the finding recorded at the Departmental Enquiry by the Disciplinary Authority or the 6 wp 271.97.doc Enquiry Officer as a matter of course. The court cannot sit in appeal over those findings and assume the role of Appellate Authority. It is well settled that the strict rule of evidence is not applicable to the Departmental Enquiry proceedings and the only requirement of law is that the allegations against the Delinquent Officer must be established by evidence acting upon which a prudent person acting reasonably and objectively will arrive at the finding upholding the gravamen of the charge against the Delinquent Officer. 8 This court while exercising the jurisdiction of judicial review cannot interfere with the finding of fact by re-appreciating evidence, which the enquiry officer considered and appreciated while arriving at the finding of fact; unless malafides or perversity in arriving at the finding is clearly made out. If there is no evidence at all in support of the finding or if there is evidence and considering it true, no prudent person, acting objectively can reach the impugned finding, then only the impugned finding of fact can be interfered with. 9 The Apex Court in the case of Union of India vs. H.C.Goel reported in AIR 1964 SC 364 held that: 7 wp 271.97.doc “The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.” 10 In similar way, the Apex Court in the matter of B.C.Chaturvedi Vs. Union of India reported in (1995) 6 SCC 749 held as under: “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High 8 wp 271.97.doc Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 11 In another matter i.e. DG, RPF Vs. Sai Babu reported in (2003) 4 SCC 331, the Apex Court reiterated the legal position about the High Court’s power to interfere with the quantum of punishment imposed by the disciplinary authority in the following words: “6......Normally, the punishment 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 that the 9 wp 271.97.doc punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors, including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.” 12 Thus, it is clear that under Article 226 of the Constitution of India, the High Court has very limited jurisdiction to interfere with the decision of Disciplinary Authority. The Disciplinary Authority and Appellate Authority being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. The High Court while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. In the present case, the Enquiry Officer considered deposition of three witnesses and documentary evidence on record and held that the Petitioner was guilty of the 10 wp 271.97.doc above mentioned charges levelled against him. No case has been made out to interfere with the conclusion recorded by the Enquiry Officer. 11 Considering these facts, we do not find any substance in the present writ petition and the same is dismissed. 12 No order as to costs. (D.K.Deshmukh, J.) (K.K.Tated, J.)