•B \ IN THE HIGH COURT OF MADH-XA PRADBSH AT J^BALPUR Writ Petition No. 1^<3L\ /19 97 PETITIOKIER. RESPONDENTSs Dwari'kar Prasad Tripsthi, s/o Shri Baleshwar Prasad 5ged about 45 years, r/o Antahgarh Tesl.a. S; Post Antahgarh Distt. Bastar (M.P. Versus 1. Zilu Sahkari ndriya Bank Maryadit Jagdalpur, 2. Boerd of Revenue M.P. Gwalior, IT_PETITIONER UNDER SEGTISN 22$_&_22Z GONSTITUTION OS' INDIA . J-~^^^—•i"-c't—ff.u±imJ^Ls^Sja— '-<» @ HIOH COURT OF CHHATTI8GARH. BILASPUR W.P.No. 62 of 1997 Jila Sahakari Kendriya Baiik Maiyadit, Jagdalpur Vs. Dwarika Prasad Tripafhi and others W.P.No.1604/1997 Divarika Prasad Tripafhi Vs. Zila Sahkari Kendriya Baak Maiyadif, Jagdalpur and another JUDGMEST ^ Postfor 25.09.2006 Sd/- Sunil Kumar Sinha Judge -M. \^' c\V HIGH COURT OF CHHATTISGARH, BILASPUR W.P.Ho. 62 of 1997 JUa Sahakari Keudriya Bank Maiyadit, Jagdalpur Vs, Dwanka Prasad Tripatlii aiid others W.P.No.1604/1997 Dwarika Prasad Tripafhi Vs. Zila Sahkari Kendriya Baiik Maiyadit, Jagdalpur aad aiiother Appesuraaee; Shri PrgtfuU Bharat, counsel for the Einployer Bank. Shri Prashaat Jayaswal, Sr. Advocate with Shri Viaay Kuinai' Paadey, counsel for fhe eiaployee, JUDOMBNT (25.09.2006) SUNIL KirMARSINHA. J. (1) The employer Baiik as well as the delinquent employee, bofh have chaUenged fhe legaUty of fh.e order dated 04th of Noveixiber 1996 passed by the Boardof Revenue, M.P., Gwalior, in S.A.No.A/1-l/C/789/95. By the said order, while allowing fhe appesd of fhe deliiiquent eniployee, the Board has directed for his reiastatement wifh half back wages. TUe baiik is aggrieved wifh fhe onier of reversal in appeal, whercas, fhe deUiiquent employee is aggrieved wifh that part offhe order by which only half back wages hawt been directed to be paid to him. \-' ^ (2) The brief facts are fhat while workiag as Maa^er, LAMPS Aniabeda, the deliaqiient eniployee was seived wifh charge sheet dated 03.2.1982 ia rclation to fhe foUowmg fhree chai^es : 1. STN^ f^ti^ 1&-&-81 ^t ^O 500/- tcj) ^ ^?F^t ^f t^ 3TRW ^ ^q" ^ "^ ^T ^MitVt ter i 2. STPT^ f^n^ 3-10-81 ^t t"T SlWt^l % Rl^c^ ^T 1826.74 ^ ^o ^ ^RT -^ ^ l^ ^ ^j<h 25-10-81 ^r w^ i35o/- ^ ^t ^mr^ ^r ^ 476.74 tW t^ ^ ^RT ^f ^)^ W^ ^^FT ^ ^^ ^-TT ^ "^T ^T ^M^t^! f^t 1 3. srn^ ^q- in^ ^ ct?|4cbt^ ^ ^ ^OSfRO tNi^ fct^rr ^ T^) ^ '^^ w^ 220/- 1?^ ii'RT ^TT ^IT^ 121 25 ^ ^?FT ^ 60/- '?PR f^ ^ l^ ^r 401.25 ^T ^NT ^? ^RT ^T ~^ sm^ ^% ^r ^M'4t<l f^TT t 1 An enquiry was conducted and tiie enquirmg officer foiiud aU fhe fhree charges proved agaiast fhe employee. Thereafter, on flie basis of the aforesaid enqiiiiy report^ submitted to tlie competent authority, flie competent authority awarded the punishment ofclismissal on 26.4,1983. (3) Being aggrieved wifh fhe aforesaid order of dismissal, fhe einployee filed a dispute before the Deputy Registi^r, Co- operative Societies u/s 55(2) of the M.P. Co-operative Societies Act, 1960 (hereiaafter referred to as fhe Act). The Deputy Registorar, after takiag written statement of fhe Baiik, framed various issues ia dispute iacludio.g the following two importaiit issues as issue no,2 and 3 :- "(2) ^rr cfr^ ^ f^^ yf^cii^ tcp c^ ^r ^crr ^^ sn^T W^ ^ ^^ ^RtTT c^TT ^ (NT srNNt ^iii^ ^. ^t ^m ^rr tor ^ 'ffTOHf ^ ST^R f^cRr c^ ^ 1 (s) <rqT cn^t ^ ^cn^ ito^t IF^ ^NT ^rr tott ^ to^ ArPrcj> ^q ^ ^TRT "cj^"^ ^ 3^ ^T yl^cit^ te ^RT ^T ^Ner 4 ^t sn^i te t i" (4J Thereafter, fhe parties were called iipon to lead fheir evidence. Ultiinately, fhe Deputy Registrar recorded 3 miportant fiadiags ie., (i) fhe departmental enqziuy was conducted ia accordance witli fhe niles; (ii) fhe employee was given ftill opportiinity to defend himself ia fhe departmentat enquisy and (ui} fhe charges were rightly proved a^aiast fhe einployee. The dispute was dismissed vide order dated 25.3.1992. The enxployee preferred aa appeal agaiast fhe said oixler beforc fhe Joiat Registnar aAd the said appeal was also dismissed by the appellate authority on 25.8.1995 aad fhe oixler passed by the Deputy Registrar was coufirmed. Against this order,| passed by the appellate authority in first appeal, fhe eiaployee preferred a second appealu/s 77(2) offhe aforesaid Act before th.e Board Of Revenue, M.P., GwaUor. The Board allowed his appeal ia part by setting aside fhe oider passed by the Joiat Registrar ia First Appeal and directed for reiastatement ofthe employee wifh. 50% back-wages. It is agaiast fhis order, passed by the Board, the employer as weU as the employee bofh have flledjfhese writ petitions. ! (5) l^amed counsel, appearing for the petiffox^r Baak, ia W.P.No.62/1997 ai^ued that the jiirisdiction vestejd with the second appeUste aufhority was lioiited to sub-sectfon (2) of ^r-' )^ 'rv section 77 and the Board could have entertaiaed the second appeal on the said grounds only and iffhe Board has passed ite order beyoud fhe provisions of sub-section (2)ofsection 77, fhe same caanot be sustained, He next argued that tlie Board without assigniag aay reason has reversed the concurrent finding reconled by the two subordiaate aufhorities. (6} Per contra, leamed counsel for fhe employee/petitioner m W.P.No. 1604/1997 argued that there was a procediiral defect m fhe condiiction ofenqu^ as a proper charge sheet, showing the naraes of wituesses, list of docziments reUed on against the petitioner, was not served which vitiates the entire enquixy. Secondly, he contended fliat fhe charges leveUed agaiast the petitioner were not proved and fhirdly his contention was fhat fhe superviso^ junsdiction vested with this Court under Article 227 of the Constitiition is limited to only look iato the errors m the decision makmg process and this court would not sit as aa appeUate authority over the judgment passed by the Board of Revenue in Second Appeal u/s 77 of fhe said Act. Lastly, his siibmission was fhat fhe order of reversal passed by Board of Revenne is just and proper, however, instead of awarding half back wages, tfae Board would have awarded fiill back wages to fhe petitiouer. (7) I have heaid learaed counsel for the parties at lengfh and have also perased the rccords offhetm^writ petitk)ns. (8) So far as the ai^unients advanced on jurisdkktion of fhe High Court under Article 226/227 of fhe Constitijitiou of India are conceraed, it has been held m fhe matter of B^Chciturvedi ^r^ w, V.- L^ -ys- Unlon ofJnaia cmd ethersreoorted in fl99SS 6 SCC 749 that fhe Court/Tnbunal m its power ofjudicial review does not act as appeUate authority to rc-appreciate the evidence and to arrive at its own independent fiadiags ou the evidence. The Court/Tribunal may interfere where the authority held the proceediags agaiast tfae deliaquent ofl5cer in a manner iaconsistent with fhe rules of nattiral jiistice or in violation of statuto^ rules prescribiag fhe niode of iaqiiuy or wherc the conclusion or fiuding reached by the disciplmar^r autfaority is based on no evidence. Iffhe conclusion or fiuding be such as no reasonable person would have ever rcached, the Court or Tribunal may iaterfere with fhe conclusion or fhe fiiiding, aiid znould the reliefso as to niake it appropriate to fhe facts ofthat case, (9) In R.S.Saini -vs- State of Pu.nSah cmd othcrs, (1999) 8 SCC 90. it was a^ain held by the Apex Court tliat fhe Court, while exercismg fhe writ jurisdictbn, wiU not rcverse a finding of fhe mquiring authority on fhe ground fhat fhe evidence addiiced before it is iasufficient Iffhiere is soine evidence to reasouably support fhe conclusion of fhe enqiiiriag aufhority, it is not fhe function of the Court to review fhe evidence and to arrive at its own iridependent findiag. The enquiring authority is fhe sole judge of fhe foct so long as fherc is soisie legal evidence fo substantiate the findmg. The adequacy 6r reliabUity of the evidence is not a matter which caa be permiitted to be canwissed before the Court in writ proceedtags. It was obsexved by fhe Apex Court in ttie said judgiaent fhat a Darratiou ofjcharges and fhe reasons ofihe mquiring authority for acceptmg jfhe charges, ^-^^^^ ^v i as seen fronx flie records, shows that fhe inqutring aufhority has based its conchisious on niatenals avaUable on rccord after considermg the defeace put forth by the appeUaiit The Apex Court obsewed fhat tfaese decisions were taken io. a reasonable maiiner aiid objectively aiid the conclusion arrived at by fhe inquning aufhority caanot be termed as eitilier being peryerse or not based on any material nor is it a case where fhere has been aay non-appUcation of m.iad on the part of fhe iaquiriiig authority. The Apex Coiirt obser^ed fhat the High Cozirt has looked mto fhe material based on which the enquuy officer has conie to the conclusion, wifhin the tunited scope available to it iinder Article 226 of the Constitution aad no fault can be found out wifh the fmdings offhe High Court m fhis rcgard. Refemng to these two decisions, fhe Apex Cozirt again held in the matter of LdHt PopH -vs- Cem.eura Beink <md others. (2003) 3 •SKX' 583 fhat while exercising jurisdiction iinder Article 226 oftheConstitiition, fhe High Coiirt does not act as aa appeUate authonty, Its jurisdictioa is circumscribed by Imiits ofjudicial review to correct errors of law or procedural errora leading to inaaifest iojustice or violation of prmciples of natural Justtee. Judicial re?view is not aldn to adjudicatfon offhe case ou merits as aa appellate aufhority. (10) Again in fhe matter of Dlvisional Controffcr. JBGSRTC fNWKRTC^ -vs- A.T. SXeme f200St 3 SCC 254. the Apex Court held fhat once a domiestic tribiiaal based on evidence conies to a particular conchision, normally it is not open to the Appellate 1 Tribunals aad Courts to snbstitute fheir subjectiySe opiaion m the place ofthe one arrived atby the doinestic tribunal, ^ ^ ^..; ^-. •L. i (11) So far as Article 227 is concenied, fhe Apex Court while dealmg with fhe matter relating to RentControl Legislation held in Laxnd.kant Revchemd Sheiwani and another -vs- Mehanstwsh Petrdeshi^fdeceeised thrmwh his h^rs cmd lefial representatlvesh fl99S) 6 SCC S76 tliat fhe High Coiirt was not justified m extending its jurisdiction under Article 227 of the Constitution of India in the said case as fhe said Act ofrent legislation was a special legislation goveming the landloirl and tenant relationship aad disputes. The Apex Court held that the legislature has, in its wisdom, not provided second appeal or revision to the High Coiirt. The object is to give finality to the decision of fhe appeUate aufhority. The High Coiirt under article 227 of fhe ConstitLition of India caanot assume unliiaited prerogative to corrcct all species of hardship or wrong decisions. It must be rcstricted to cases of grave dereliction ofduty and flagraat abuse of fundamental prmciples oflaw orjustice, where grave uijustice would be done unless fhe High Court mterferes. (12| In fhe present case, the euquiring officer fozind aU fhe 3 charges proved agaiast the eBiployee and subniitted his report to the competent azithority. Thereafter, the competent aufhority ' passed fhe disniissal oider dated 26.4.1983. The aforesaid ? onler has been placed on recoid as Anaexure P-3 m W.RNo.62/997, A penisal offhe said orderwould show fhat the competent aiifhority has gone iiito the entire evidence placed ^ before fhe enquinng officer and he ia aja objective ma^iner, placiag reliance on the materials plsced duririg Ifae enquiry, ^^ /)^ •(^ confirmed fhe reasoned fuidnigs recorded by fhe enquiring officer. The inipugned order ofdisiaissal appears to be based on reasonable evidence on record and the conclusion concurrently arrived at by fhe enquiring aufhonty aiid the competent authority caanot be faulted with, So far as Charge No.l is conceraed, the competent aufhority on the basis of fhe rccords ofthe bank, observed fhat for obtamiiig aii advmice ofRs.500/- no appUcation was given by flie einployee aad no sanction was obtaiued aad flie purchase was made wifhout calluig qziotations ete., and to justify his action for taking flie defence, he managed to get entered aii ante-dated proposal ia the mmutes/resolution iii fhe concemed book. The piirchase biU, which was prodiiced by him, was on fhe naine of Adini Jati Seva Sahkari Saaiiti, Jagdalpur (not on fhe uaiiie offhe concemed Samiti). No entry ui fhe stoek register regardiag articles, so purchased, were made. In fact, the fmdiag was recorded fhat the foi^ed bill for suia of Rs.429/- was inaaaged by the exaLployee after niakuig aa aate-dated entry ia fhe relevant book of re-solutioil/miiiutes. This is the finding recoided on the basis of the documentaiy evidence. So far as charge no.2 is conceraed, on evidence it was estabUshed fhat fhe einployee had received an aoiount of Rs.1,826.74 P on 03.10.1981 whichwas to be deposited in the Baak. Hcmwwr, only Rs.1350/- was deposited by hiai on 05,10.1981 and m fliis manner he deposited less amount of Rs.476.74 aad no pix>per explaaation wsis gwen by hiui. This finding is also based on docuiaentaiy evidence produced beft>re ihe enquirmg ofiicer. Likewise, tfae 3rd Char^ | regarding receivmg one bag of rice and some amount fjrom fhej satesmmi ^- Kripa Ram has also been held to be proved on the basis of flie evidence adduced beforc fhe euquinng ofHcer. A penisal ofthis order would also show that a rcasonable opportunity of hearmg was given to the eniployee aad he was also given opportunity to inspect the records as desired by hiai. This aU goes to sliow that fhe fiaduig recorded ia fhe doiaestic enqiuiy was based on relevant evidence ou recoiTl aad the enquiiy was conducted iii an iisual inaaner after givuig a proper opportunity of hearing to fhe einployee, Suice tlie eiaployee was dissatisfied wifh fhis onler passed by the Competent Aufhority^as stated above, he fUed a dispute u/s 55(2) ofthe said Act and ui fhat dispute also, tw^o miportant issues (supra), pertaiiiiag to the grounds raised, were frained aiid thereafter, flie Deputy Registrar recorded the fiiidmg agaiast these two issues mterms that the departaiental enquiry was conducted in accordance wifh the Rules and the employee was given fuU opportunity to defend hmisetf m the departmental enquiry and fhe charges were rightiy proved agaiD^st fhe employee. On first appeal, fhe appeUste authonty also confiniied fhe oider passed by the Deputy Registonar, against whk?h, a second appeal u/s 77(2) of fhe Act was filed and ia fhe ssdd second appeal, fhe orders were set aside. Section 77(2) offhe Act rcads as under: 77. Appeals.- (1) XXX XXX XXX (2) A second appeal sImU lie agamst any order passed ia first appeal by fhe Registrar, Additk?nal Registrar or Jouit Regisjtrar, to fhe Stafce Govermiient on aay of fhb fbUjowia.g groimds and 110 ofher, namely;- (i) fhat the order 1 is contraxy to law; or - ?r ^Q^" ^- (ii) that fhe order has faUed to deterniitie soine Biaterial issue of law; or (iii) fhat there has been a substaatial error or defect ia fhe procedure as prcscribed by fhis Act which may have produced error or defect ia fhe decision of fhe case upon nierits. A perusal offhis sub-section wozild show that a second appeal would Ue agaiast any order passed ia First Appeal ifeither offhe said 3 groiinds were available to fhe appellant. The placement of the z^ords llke aaad no other" m fhe maia provision of sub- section (2) clearly shows fhe mtentionofftie legislature thatia a veiy Umited scope, fhe matter has to be dealt with by the second appellate aufhority and while entertammg such second appeals, fhe aufhority niust advert to fhe said liiaited groiinds and fhe order must show as t6 which of the grounds were found to be existing on which fhe order passed in first appeal has to be reversed or set aside. So far as fhe writ jurisdiction under ai'ticle 227 is concenied, as has been held by the Apex Court ui LaJkshmikaat Revchand Bhojwaai's case (sjupi^) nprmally ia siich situation, the High Court would not be justified iii extendiag its jurisdiction under Article 227 as the object is to gwe finality to fhe decisions of fhe second appeUate aufhority, but when fhe order fatls ia fhe categozy of grave dereUction of duty aad flagrant abuse of fundamental principles of law or justice, fhe matter caa be considered. A perusal ofthe impugned 1 onler would show that the second appeUate authorijty (Board), vide para 5 of the iiapugned order, leaviag apart peraiissible grounds for entertaiamg a second appeal, reversedj the order -tt— wifhout assigniag an^^ reason for fhe same and simply sayiiig fhat <"It was a case that sonie advauce was taken by the employee out of which he has subxnitted the account for some amount and the rest of the amount was paid by him in the Baak aad fhe enibezslenient was not proved^. How fhis reversiag fiuding has been recoried ? No reasons have been assigned for rccordmg such a rcversing fmdmg. It has also taken a gromld fhat Baak has written a letter for depositmg Rs. 1270.74 and on fhe letter of the Baak, fhe aforcsaid amoiint which was the ozitstaadmg amount was deposited by flie employee, tlierefore, it was uicunibent upou the Bank to reinstate fhe employee ia ser^ice. I am constreiaed to say that tliis is aU strange to fhe provisions of sub-section (2) ofsection 77 offhe Act as none of fhe grounds provided under this -section were determined to be present ia this case aad a reversiag order has been passed wifhozit recorduig any reason agauist the fuidiag ardved at ia the dom.estic enquuy and also by fhe doinestic tribzinal and tlie first appellate tribunal uuder the provisions of the aforesaid Act In fhe opmion of fhis Court, fhe order passed by the second appeUate aiithority is totaUy agaiast flie provisious of section 77(2) of fhe said Act as none of fhe grounds provided iii tliis sub-section wereavailable aad the order was passed in grave derclictfon of the duty aad fhe sarne can be corrected under Article 227 of the Constitution so as to prevent fhe grave iiyustice and I hold it accordm.gly. (13) The next poiat raised by leamed seuior counsel for fhe eniployeG/ petitioner ia W.P.No. 1604/1997 relates to proceduxal defect iu conduction of enquiry as accordiag to hmi, a proper ^r^ (55 ,' v.>-. J.^^ charge sheet showing the nasiies ofwitaesses, Ust ofdocuments reUed on etc., etc., were not seryed upon flie petitioner, vitiatnig fhe entire enquiry, Adniittedly, this enquiry was conducted under fhe Riiles framed u/s 55 ofthe aforcsaid Act, which came iato force on 01.4.1977. Chapter II of fhe Rules provides for disciplmar^^ action. Rule 45(1) describes expression "inajor mAscondiict^. Rule 46(1) provides that aa einployee found guUty of niajor misconduct niay be awarded any of fhe punishineat nientioned fhere-iuider apart frora the recovery of actual loss or dauxage caused by him to fhe Baiik or the custozaers. Clause (d) of sub-rule (1) of nile 46 provides for disxo^issal, or removal or discharge as one of the punishments for niajor misconduct Rule 47(2) provides for manaer of the enquiry to be conducted. Clause (a) ofthis siib-ruleprovides fhat fhe coinpetent aufhority or fhe other ofl&cer aufhorised by hmi in fhis behalf shall give to fhe eniployee a charge sheet ia form (C) for the niajor misconduct and ia form (D) for miaor misconduct clearly setting forth fhe miscoiiduct charged aad fhe cu'cumstaaces appearing agaiast hioi and requiring his explajiations. Porm "C? is also appended to the Rules. In this form, notihiiig is fherc like inentionirig the nanies of fhe witaesses, list of dociiments reUed on wifh specification etc. etc. If we penised the cliarge-sheet supplied to the petitk>ner (Annexure-P/1 in W.P. No. 62/1997), it would appear fhat flie same is stdctly ia form ttC9 appended to fhe Rules wifh refe-rence to sub-rule (2) of Rule 47. Therefore, fhe contention raised fhat a proper charge-sheet was not suppUed and fhe entirc inqiiiry vitiates on tliis cozinjt can not be siistaiaed. \ i''; ^^ /•^ (14) The next contention of leamed counsel for fhe ezaployee/petitioner was fhat fhe charges leveUed agaiast fhe petitioner were not proved, This cannot be siistaiaed ia view of the detail discussion miade ia Psira- 12 of the judgment. As held above, after penisal offhe orders passed ia fhe domestic mquiry aad thereafter by the domestic Tribunal it would appear that the charges were proved aad the fiiidiags werc based on rclevaat evideuce on record. In view ofthe said discussion, fhis argument canuotbe accepted. (1S) The last contentioh was about flie payiaent of fuU back wages to the petitioner. In light ofthe opiaion expressed by me, on which I am goiag to set aside the order passed by fhe Boaid, fhis argunient caiinot be entertamed, as no relief in W.P. No. 1604/1997 caa be granted. (16) For fhe foregoing reasons especially in Para-12 of fhe judgmient, fhe W.P. No. 62 f 1997 is allowed. The iiapugned onler dated 4.11.96 (Annexure-P/6 in W.P. No. 62/1997) passed by flie Board of Revenue is quashed. W.P. No. 1604/1997 for modification ofonier dated 4,11.96 is dismissed. No order as to r~ 1 costs. i 1 Sd/- Sunil Kumar Sinha Judge Rao/V