IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.46 of 2009 (O&M) Date of decision: 29.1.2009 Bank of India and another -----Petitioners Vs. Manjit Singh --Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present: Mr. R.N.Lohan, Advocate for the appellants. Mr. R.K.Chopra, Sr.Advocate with Ms. Maninder, Advocate for the caveator. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the Bank of India against judgment of learned Single Judge dated 25.11.2008, whereby the punishment of removal with superannuation benefits as due without disqualification for further employment was ordered to be substituted by reduction of pay by two steps, reinstating the respondent into service without back wages. 2. Case of the respondent-writ petitioner is that he was appointed as Clerk in the service of the appellant Bank on 20.12.1976. In August 1982, he was promoted as Special LPA No.46 of 2009 Assistant. Charge Sheet dated 19.6.2000 was served on him alleging that on 25.4.2000 at 3.15 PM, he assaulted co- employee Hari Singh and also abused co-employee Sohan Lal. The Enquiry Officer in his report dated 7.9.2000 held the charges to be proved. After confronting the respondent with the report of the Enquiry Officer vide notice dated 12.9.2000, impugned punishment was imposed vide order dated 19.9.2000. Appeal against the said order was dismissed by the appellate authority. 3. Learned Single Judge, inter-alia, observed:- “In my opinion, the most glaring aspect of the trial process in this case is the complete exoneration of the three other employees who were ranged against the petitioner in the altercation and the surprising omission of the enquiry officer to exclude from consideration entirely, the earlier pre-lunch episode which was undoubtedly the genesis of the afternoon altercation. It is inconceivable that a quarrel would take place between one person on one side and three on the other and that one man would manhandle the others while they would turn the proverbial other cheek; which is not to give a clean chit to the petitioner, but only to emphasize the differential treatment meted out to him. In my opinion, after having held in the 2 LPA No.46 of 2009 ultimate analysis that a quarrel had broken out between the petitioner and three other persons, the Inquiry Officer could not blandly hold that it could be safely concluded that charges against the petitioner stood proved as if the petitioner were a wolf among sheep. In his appeal, the petitioner raised this point, albeit while trying to show himself to be completely innocent, but somehow even the appellate authority did not consider this crucial aspect. A perusal of the appellate order further reveals that even the previous long service of the petitioner as well, as to be true, his previous defalcation have not been considered at all and his plea for leniency has been ruthlessly turned down. Learned counsel has tried to draw support for the punishment, as mentioned above, from the earlier actions of 1994, 1997 and 1999 but, in my opinion, this attempt to supplement the reasons, ex-post facto, is not permissible. No doubt the petitioner was guilty of disorderly conduct, but in the facts and circumstances as brought out above, he cannot be considered as the devil incarnate. When confronted with these findings during hearing, learned counsel for the respondents submitted that courts have very limited jurisdiction to interfere in disciplinary proceedings, especially 3 LPA No.46 of 2009 where, as in the present case, a regular inquiry was held with which the petitioner did not associate voluntarily. Xx xx xx xx In my opinion, the punishment in this case is grossly disproportionate. The petitioner has been out of job for eight years at a time when a man’s responsibilities are peaking. Learned senior counsel for the petitioner has urged that the petitioner has learnt a lesson and prays for reinstatement. The petitioner has also filed an affidavit dated 21.11.2008 undertaking that if he is involved in any mis-demeanor large or small, the impugned punishment order may be revived. The said affidavit is taken on record. In other words, the petitioner has offered himself to be on probation. Xx xx xx xx In consequence of what has been held above, and in view of the parameters laid down by the Hon’ble Supreme Court in J.K.Synthetics Limited case (supra), I am of the opinion that the ends of justice would be met if the impugned punishment order is set aside, the petitioner is reinstated into service and the next lower punishment of reduction of pay by two stages is imposed upon him.” 4 LPA No.46 of 2009 4. We have heard learned counsel for the parties. 5. Learned counsel for the appellants submitted that misconduct of the respondent having been established, his reinstatement was not called for. The Bank being a service oriented organization in financial sector requires employees who bear good conduct. The misconduct which stands established is clearly covered by para 19.5 of the Bipartite Settlement, which contains the service conditions. The respondent has also not taken alternative remedy of raising an industrial dispute which should have been a ground not to entertain the writ petition. It has been submitted that the finding of the disciplinary authority and the appellate authority was not liable to be interfered with by reappreciating the evidence nor discretion to impose appropriate punishment could be interfered with. Reliance has been placed on judgment of the Hon’ble Supreme Court in Damoh Panna Sagar Rural Regional Bank and another v. Munna Lal Jain, AIR 2005 SC 584, wherein after referring to earlier decisions, it was concluded in para 14 as under:- “14. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or 5 LPA No.46 of 2009 was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.” It was also submitted that previous conduct of the respondent has also not been above board. He was given warning in the year 1994 and punishment of reduction of pay by one stage was imposed vide order dated 13.3.1997 and again vide order dated 10.3.1999, which facts, though noticed in the impugned order of the learned Single Judge, have not been given due weightage. 6. Learned counsel for the respondent supported the findings and observations of the learned Single Judge and submitted that the petitioner is left with about three years of service and has given an undertaking that if he is involved in any mis-demeanor, the punishment will be revived and thus, he will be on probation. 6 LPA No.46 of 2009 7. The law of interference in exercise of judicial review of an order of disciplinary authority is well settled. A finding of disciplinary authority about the misconduct of an employee can be interfered with only if the same is malafide or based on no evidence or is otherwise perverse. While exercising power of judicial review, this Court does not sit in appeal over the finding as an appellate authority. Similarly, interference with the order of punishment may be permissible on the principle of proportionality as the punishment is shockingly disproportionate to the charges proved. Reference may be made to judgment of the Hon’ble Supreme Court in Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625, wherein it was observed:- “17. The High Court appears to have over- looked the 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 re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation 7 LPA No.46 of 2009 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. Both the learned single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though 8 LPA No.46 of 2009 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. Lord Haltom in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, observed: "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court." 9 LPA No.46 of 2009 18. 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. 19. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur (1972) 4 SCC 618 : (1972 Lab IC 627 at Pp. 630-31): "Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the 10 LPA No.46 of 2009 materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court." 20. After a detailed review of the law on the subject, this Court while dealing with the jurisdiction of the High Court or Tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda (1989) 2 SCC 177 : (AIR 1989 SC 1185) opined (at P. 1192 of AIR) : "We must unequivocally State that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Enquiry Officer or Competent Authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act 11 LPA No.46 of 2009 of Legislature or Rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter of exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority." 21. In B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 : (1995 AIR SCW 4374), this Court opined (at P. 4379 of AIR SCW): "The disciplinary authority is the sole Judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a Disciplinary Enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal." 12 LPA No.46 of 2009 Further it was held (at P. 4380 of AIR SCW): "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 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." 13 LPA No.46 of 2009 22. Again in Government of Tamil Nadu v. A. Rajapandian (1995) 1 SCC 216 : (1994 AIR SCW 4833) this Court opined (at P. 4834 of AIR): "It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a Court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the inquiring authority.” 14 LPA No.46 of 2009 8. In the present case, the respondent has been found to be guilty of repeatedly slapping the co-employee while on duty. The said finding has been arrived at by taking into account the evidence produced before the Enquiry Officer and the finding was accepted by the disciplinary authority after giving due opportunity. The same was affirmed by the appellate authority. There is, thus, no scope of interfering with the said finding. 9. As regards punishment, having regard to the behaviour of the respondent, there is no justification for directing reinstatement. The view taken by the learned Single Judge cannot, thus, be sustained. However, we find that the respondent had already served for 24 years prior to the occurrence in question and he should not be deprived of any monetary benefits, which have fallen due. On being asked, learned counsel for the appellants fairly stated that the Bank will pass a fresh order of compulsory retirement in substitution of earlier order. 10. Accordingly, while allowing this appeal and setting aside judgment of learned Single Judge, we direct the Bank to pass a fresh order of compulsory retirement so that the respondent does not suffer any prejudice for the terminal 15 LPA No.46 of 2009 benefits. The order will be operative from the date of original order of removal. The order will be passed and all dues of the respondent paid within one month from the date of receipt of a copy of this order. 11. The appeal is disposed of accordingly. (Adarsh Kumar Goel) Judge January 29, 2009 (Jitendra Chauhan) ‘gs’ Judge 16