HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI Writ Petition No.14373 of 2001 Between: M.C. Jena …Petitioner And The Commandant, Central Industrial Security Force Unit, VSP, Visakhapatnam and others. … Respondents :: ORDER:: Counsel for the petitioner : Shri Krishnamurthy Devarakonda Counsel for the respondents : Smt. C. Vani Reddy, Additional Standing Counsel for the Central Government July 03, 2007 Whether the punishment of removal from service imposed on the petitioner, who was then holding the post of Head Constable/Driver in the Central Industrial Security Force (CISF) and was found guilty of not carrying out the transfer order passed by the competent authority, is vitiated due to violation of the rules of natural justice or is shockingly disproportionate and calls for interference under Article 226 of the Constitution is the question which arises for determination in this petition. The petitioner joined service as Head Constable/Driver in CISF on 2.2.1988. While he was serving in CISF Unit, Visakhapatnam Steel Plant at Visakhapatnam, Deputy Inspector General, South Zone, Chennai (respondent No.3 herein) vide his order dated 26.5.1998 transferred the petitioner to CISF Unit, RSTPS, Ramagundam, Karimnagar District. On 8.6.1998, movement order was issued requiring the petitioner to join at Ramagundam. After availing the joining time and 20 days sanctioned earned leave, the petitioner was supposed to join duty on 13.7.1998, but he did not do so. Instead, he sent a telegram to the concerned authority with a request to extend leave by stating that he was under medical treatment and that medical certificate would follow. This was followed by two undated and unsigned letters sent in the name of the petitioner, one of which was received by Commandant, CISF Unit, RSTPS, Ramagundam (respondent No.2 herein) on 17.7.1998 along with OPD ticket of District Head Quarters Hospital, Koraput for extension of leave. Since the letter was not accompanied by unfitness certificate, respondent No.2 did not accept the same and sent letter dated 18.9.1998 to the petitioner to report for duty at Ramagundam along with relevant medical papers. Two more letters dated 8.10.1998 and 10.11.1998 were sent by respondent No.2 for the same purpose. In one of the letters, it was mentioned that if the petitioner fails to join duty, disciplinary action will be initiated against him. Notwithstanding this, the petitioner did not report for duty and sent an application dated 25.11.1998 for extension of leave. On 3.12.1998, respondent No.2 sent letter to the petitioner asking him to report for duty at CISF Unit, RSTPS, Ramagundam along with medical papers. On 13.2.1999, respondent No.2 sent the papers to the competent authority i.e. Commandant, CISF Unit, Vizag Steel Plant (respondent No.1 herein) for initiation of disciplinary action. The latter issued notice dated 19.3.1999 for holding an enquiry against the petitioner under Rule 34 of the Central Industrial Security Force Rules, 1969 (for short, ‘the Rules’). The petitioner did not respond to the notice. Therefore, the disciplinary authority appointed respondent No.5 – Shri N.P. Reddy, Inspector (Executive), CISF Unit, HPCL, Vizag as the enquiry officer. Respondent No.5 fixed the date of preliminary hearing as 11.6.1999 and issued notice to the petitioner. He appeared before the enquiry officer and submitted that due to personal reasons and domestic problems, he could not join duty at Ramagundam, but assured that he will join duty without further delay. The next date of enquiry was fixed as 21.6.1999, but the petitioner did not attend appear before the enquiry officer. On two subsequent dates i.e. 29.6.1999 and 13.7.1999 also, the petitioner did not attend the enquiry. Therefore, after considering the statements of the departmental witnesses, namely, Sarvasri P. Rajendran (ASI), C. Senthamarai (SI) and G.L. Patel {Inspector (Executive)} and the documents produced before him, respondent No.5 submitted report dated 20.7.1999 with the finding that the charge levelled against the petitioner has been proved. The relevant extracts of the enquiry report are reproduced below: “FINDINGS: From the statements of PWs-I & PWs-II it is noted that HC/Dvr M.C. Jena was posted from CISF Unit, HPCL-VR, Vizag to CISF Unit, RSTPS, Ramagundam vide memorandum No.46/98 dated 26.5.98. From the statements of PWs-I, II & III it is noted that HC/Dvr M.C. Jena was given movement order No.E- 38014/posting/CISF/HPCL/ 98/581 dated 08.6.98 to proceed on regular posting to CISF Unit, RSTPS, Ramagundam. The above movement order was acknowledged by the charged official on 8.6.98 and SOS from CISF Unit, HPCL-VR, Vizag from 09.6.98 (FN). Hon'ble Court/Dvr M.C.Jena was also grnated 20 days E/L alongwith joining time. After availing eligible joining time and sanctioned 20 days E/L, the charged official was supposed to report for duty in CISF Unit, RSTPS, Ramagundam on 13.7.98 (FN). But the charged official failed to report at CISF Unit, RSTPS, Ramagundam stating “under medical treatment, please extend leave – follow to medical unfit certificate.” Further the charged official sent an unsigned application stating that he met with an accident and under medical treatment for extension of leave alongwith medical OPD ticket of Dist.Hqrs. Hospital, Koraput. But the application was not considered by Commandant, CISF Unit, RSTPS, Ramagundam as he was advised medical rest from 04.7.98 and also unfit certificate was not produced by the individual. Further, HC/Dvr M.C.Jena was directed to report to CISF Unit, RSTPS, Ramagundam vide letter No.E- 38014/36/RSTPS®/Ad.I/98-3334 dated 18.9.98. Thereafter, two more call letters of even NOs. (3847) dated 08.10.98 and (4395) dated 20.11.98 were sent by the Commandant, CISF Unit, RSTPS, Ramagundam, but the individual did not report for duty. HC/Dvr M.C.Jena was again directed by Commandant, CISF Unit, RSTPS, Ramagundam vide letter of even No.4840 dated 03.4.99 to report to CISF Unit, RSTPS, Ramagundam. A letter No.E- 38014/Posting/HPCL/98-1450 dated 24.11.98 was also sent by Deputy Commandant, CISF Unit, HPCL-VR, Vizag to HC/Dvr M.C.Jena to report to the new place of posting. But the charged official failed to report at CISF Unit, RSTPS, Ramagundam. PWs-I from RSTPS ® further stated that the charged official has not reported in that unit till date. CONCLUSION: Basing on the above facts of the case, it clearly shows that HC/Dvr M.C. Jena has wontedly not joined his new place of posting. This action of HC/Dvr M.C.Jena not reporting to his new place of posting even after a lapse of one year shows wilfull disobedience of orders and dereliction of duty. Hence, I come to the conclusion that the charge framed against No.884480114 HC/Dvr M.C.Jena is “PROVED” beyond reasonable doubt.” A copy of the enquiry report was forwarded to the petitioner to enable him to submit his representation within 15 days, but he did not avail that opportunity. After waiting for about three months and ten days, respondent No.1 passed order dated 19.1.2000 whereby he imposed the punishment of removal from service on the petitioner. Paragraphs 3, 4 and 5 of that order read as under: “ 3. I have carefully gone through the charge memorandum, enquiry report and other records available in the case file. During the course of enquiry, it has been established from Exhibit-1 and the statements of all the P.Ws. that the charged official was ordered to be posted out of CISF Unit, RSTPP, Ramagundam from CISF Unit, HPCL, Vizag and accordingly he had been issued with Movement order and had sanctioned 20 days EL together with joining time. He was relieved from CISF Unit, HPCL, Vizag on 8.6.98 vide Movement order dated 8.6.98. Though the charged official sent a telegram and an unsigned application to Commandant RSTPP, Ramagundam requesting to extend leave stating that he was met with an accident, he did not submit any supporting documents. Accordingly, the Commandant, CISF Unit, RSTPP, Ramagundam sent call up notices dated 10.9.98, 8.10.98 & 10/11.11.98 (PW-1, Exhibit-6, 7 & 8) respectively to his permanent address directing the charged official to report to the unit. But the charged official did not report to the unit. In turn, the charged official sent yet another application dated 25.11.98 to Commandant, RSTPP, Ramagundam for extension of leave without any supporting documents. It is not practicable to grant leave to a person without justifiable ground. On receipt of a copy of the letter dated 10/11.11.98 from Commandant, CISF Unit, RSTPP, Ramagundam, the Cy. Commandant, HPCL, Vizag was also sent a call-up letter to the charged official vide his letter dated 24.11.98 (PW-2, Exhibit-1). But no information was received from the charged official. 4. In the light of the facts discussed above, I find that charged official is deliberately avoiding to report duty. Moreover, during the course of enquiry, the charged official sent a Resignation letter dated 12.4.99 to the undersigned to relieve him from service and to settle his dues against which he was communicated to report to the unit first to accept his resignation. But the charged official did not heed the instruction given to him and remained AWL without any justification for over a year. Even though the charged official was given reasonable opportunity, he failed to attend the enquiry on the dates fixed for the same. It clearly shows that the charged official is willfully absenting himself from duty without any justification/permission from the competent authority. I agree with the findings of the Enquiry Officer and hold the Hon'ble Court/DVR M.C. Jena guilty of the charge levelled against him. The act on the part of the charged official is unbecoming of a member of the disciplined Armed Force of the Union and also gives impression that he is not interested to serve in the Force. 5. The undersigned therefore in exercise of powers conferred upon me under Rule 29-A, Schedule-II, read in conjunction with Rule-31 (b) of CISF Rules, 1969, Award the punishment of “REMOVAL FROM SERVICE” to No.884480114 HC/Dvr M.C. Jena.” The appeal and revision preferred by the petitioner were dismissed by respondent No.3 and Inspector General, CISF, Mumbai (respondent No.4 herein) respectively vide their orders dated 5.5.2000 and 31.3.2001. Both the authorities independently considered all the points raised by the petitioner and concluded that there was no warrant for interfering with the punishment of removal. The petitioner has questioned his removal on the following grounds: 1) the enquiry held by respondent No.5 is vitiated due to violation of the rules of natural justice because he i.e. the petitioner was not given fair opportunity to participate in the proceedings of enquiry; 2) he had produced medical documents to substantiate his plea of illness, but neither the enquiry officer nor the disciplinary, appellate and revisional authorities considered the same; 3) the punishment of removal from service is extremely harsh and shockingly disproportionate to the misconduct found proved. The case set up by the respondents is that the order of punishment was passed by respondent No.1 after giving full opportunity to the petitioner to represent his cause and defend himself. According to them, the petitioner neither filed reply to memo dated 19.3.1999 issued by respondent No.1 nor he participated in the enquiry. He did not even submit representation in the context of the findings recorded by the enquiry officer. In the counter-affidavit filed by him, Shri Joydeep Nayak, Commandant, CISF Unit, Visakhapatnam Steel Plant averred that in the past also penalty of stoppage of one increment with cumulative effect was imposed on the petitioner vide order dated 15.2.1990 because he was found guilty of selling Diesel from CISF bus. The deponent has further averred that the petitioner did not produce any evidence to substantiate his claim that he was unable to join duty due to injury and the OPD ticket produced by him was not treated sufficient for extension of his leave. Shri Krishnamurthy Devarakonda argued that the order of punishment is liable to be quashed because the petitioner was given reasonable opportunity to defend himself. He further argued that the finding of guilty recorded by respondent No.5 is liable to be declared perverse because it is not based on a correct appreciation of evidence produced during the enquiry. Shri Krishnamurthy emphasized that the petitioner had informed respondent No.3 as early as on 4.7.1998 that he will not be able to join duty on account of injury suffered due to accident which took place in the course of repair of his house, but the officer concerned arbitrarily ignored the same and manipulated the initiation of inquiry on the charge of failure to report for duty at Ramagundam. Learned counsel then argued that even if the Court comes to the conclusion that the enquiry is not vitiated due to violation of the rules of natural justice and the finding recorded by respondent No.5 is based on correct appreciation of evidence, the punishment of removal from service imposed on the petitioner should be declared as shockingly disproportionate and quashed. In support of this argument, the learned counsel relied on the judgments of the Supreme Court in S.K.Giri v. Home Secy., Ministry of Home Affairs[1] and Shri Bhagwan Lal Arya v. Commr. of Police[2]. Shri Krishnamurthy referred to Section 61 of the Central Industrial Security Force Act, 1968 (for short, ‘the Act’) and Rules 19 (3) and 38 of the Central Civil Services (Leave) Rules, 1972 and argued that respondents were duty bound to constitute a Medical Board to assess the medical fitness of the petitioner and their failure to do so has resulted in manifest injustice to his client. He then submitted that respondent No.1 should have, instead of removing the petitioner from service, retired him on invalid pension. Smt.C. Vani Reddy produced the original record of enquiry to show that respondent No.5 had given ample opportunity to the petitioner to defend himself and argued that the latter has to blame himself because he did not attend the enquiry on 21.6.1999, 29.6.1999 and 13.7.1999 when statements of the departmental witnesses were recorded and documents produced by them were taken on record. Learned counsel submitted that the finding of guilty recorded by the enquiry officer is based on correct appreciation of evidence and the same does not call for interference under Article 226 of the Constitution of India. In support of this submission, learned counsel relied on the statements of Sarvashri P. Rajendran, C. Senthamarai and G.L. Patel. She then argued that the punishment of removal from service imposed on the petitioner cannot be termed as arbitrary or shockingly disproportionate because the petitioner was found guilty of gross misconduct of not carrying out the order of transfer and the disciplinary authority had rightly imposed the penalty of removal keeping in view the gravity of misconduct found proved and recalcitrant attitude exhibited by him by not reporting to duty till the initiation of disciplinary action and even thereafter. Smt.Vani Reddy pointed out that in 1990, one increment of the petitioner was stopped with cumulative effect because he was found of selling Diesel from CISF bus and submitted that the Court may not exercise the power of judicial review to modify the punishment imposed by the competent authority. I have given serious thought to the entire matter and carefully scrutinised the record of enquiry, the order of punishment as well as the appellate and revisional orders and pleadings of the parties. 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. I 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[3], 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[4], 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[5], the Constitution 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[6], 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