* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION No. 20487 OF 1998 % 05.06.2007 # Ch.Nagaraju ….. Petitioner Vs. $ The Board of Directors, Dredging Corporation of India, Visakhapatnam and 2 others ….Respondents. ! Counsel for the Petitioner: Sri M.P.Chandramouli ^ Counsel for the Respondent: Sri D.V.Sitaramamurthy, Learned Standing Counsel < Gist: >Head Note ? Citations: [1] 1964 (5) SCR 64 2 (2004) 3 SCC 682 3 (2006)5 SCC 173 4 (1964) 4 SCR 718 5 (1963 (1) LLJ 684 6 (1963) 3 SCR 767 7 (1965) 1 WLR 1320 at 1326 8 2006 TIGJ- 207 (Gujarat High Court) 9 1998(4) ALD 722 10 2003(3) SCC 583 11AIR 1963 SC 779 12AIR 1969 SC 966 13AIR 1996 SC 1561 141996(3) ALD 719 (DB) 152001(2) SCC 386 162001(9) SCC 592 172005(6) SCC 321 181999(1) SCC 759 192003(3) SCC 605 20(2005) 10 SCC 84 21 2006(3) SCC 690 222006(8) SCC 108 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 20487 OF 1998 ORDER: The order of the Chairman and Managing Director, Dredging Corporation of India Limited dated 04.10.1996, whereby the petitioner was imposed the penalty of removal from service, as confirmed in appeal, by the Board of Directors of Dredging Corporation of India Limited, in its order dated 13.06.1997, is under challenge in this writ petition on the ground that the findings of the enquiry officer, (which was accepted both by the disciplinary and appellate authority), are perverse, based on no evidence and that the punishment imposed is arbitrary, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. The jurisdiction, to issue a writ of certiorari and quash the order of punishment imposed on a delinquent employee, is supervisory and the Court exercising it does not act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal, as a result of appreciation of evidence, cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, it must always be borne in mind that a finding of fact recorded by the Tribunal cannot be challenged in certiorari proceedings on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a Writ Court. It is within these limits that the jurisdiction conferred under Article 226 to issue a writ of certiorari can be legitimately exercised. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. To be amenable to correction in certiorari jurisdiction, the error committed by the court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. (Syed Yakoob Vs. K.S. Radhakrishnan[1], Ranjeet Singh Vs. Ravi Prakash[2]). As to what would constitute an error of law, the Supreme Court, in Municipal Council, Sujanpur Vs. Surinder Kumar[3], observed:- “……The High Court’s jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action , IVth Edn., pp. 136-37, S.A. de Smith has summed up the position: “The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence………..” It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not the impugned error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case. (Syed Yakoob1). While Courts in judicial review will not normally interfere with assessment of fact in certain situations, however, they may do so: first, where the existence of a set of facts is a condition precedent to the exercise of a power and second, when the decision-maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends or where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact. Again, these decisions are best described as strictly “irrational”. (Judicial Review of Administrative Action: de smith, woolf & Jowell– Fifth Edition). The High Court, under Article 226 of the Constitution, has jurisdiction to enquire whether the conclusion of the disciplinary/appellate authority, on which the impugned order of punishment rests, is not supported by any evidence at all. The proceedings held against the delinquent employee under the rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and a writ of certiorari can be claimed by the delinquent employee if he is able to satisfy the High Court that the ultimate conclusion of the disciplinary/appellate authority in the said proceedings, which is the basis of the punishment imposed on him, is based on no evidence. (Union of India Vs. H.C. Goel[4]). If a finding of fact is made by the impugned order and it is shown that it is based on no evidence, that would be a point of law open to be urged under Article 226. (W.M. Agnani Vs. Badri Das[5]). The High Court would be justified in quashing the impugned order if it is satisfied that the said order is not based on any evidence at all. An order passed by a Tribunal, holding a quasi- judicial enquiry, which is not supported by any evidence is an order which is erroneous on the face of it and, as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under Article 226. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. (Board of High School & Intermediate Education Vs. Bagleshwar Prasad[6]). ‘No evidence’ does not mean total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding, or where, no tribunal could reasonably reach that conclusion on that evidence. This ‘no evidence’ principle has something in common with the principle that perverse or unreasonable action is unauthorized and ultravires. It also has some affinity with the substantial evidence rule which requires that findings be supported by substantial evidence on the record as a whole. Lord Denning MR, in Ashbridge Investments Ltd Vs. Minister of Housing and Local Government[7], put ‘no evidence’ at the head of the list of vitiating errors, saying:- “……The court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a decision to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law……” (Administrative Law: H.W.R. Wade & C.F. Forsyth Ninth Education) It is within this limited area that the facts of the present case and the contentions raised, both for and against the impugned order, are required to be examined. The petitioner joined the service of the Dredging Corporation of India Limited, as a Junior Officer (Survey) on 03.06.1977, and gradually rose up to the rank of Manager. The petitioner claims to have rendered 18 years of unblemished loyal and sincere service. The Dredging Corporation of India Limited was awarded the contract of dredging and removal of soil underneath the seventh Cargo Berth at Kandla Port and in turn sub-contracted the work to M/s. Jaisu Shipping Co. Pvt. Ltd. The petitioner, who was posted at Kandla in the year 1990 as the Project Manager, was issued a charge memo dated 17.09.1994 wherein eight charges were levelled against him. They are:- ARTICLE –I: While functioning as Head of the DCI Project Office at Kandla, during June, 92, Shri Ch. Nagaraju, Manager (P), B.NO. 0139 approved excess payment for about 308 Cu.Mtrs., amounting to Rs.44,352/- to M/s. Jaisu ShippingCo. (Pvt.) Ltd., against their bill No. JS/DCI/VII/D.3, dated 08.06.1992 for execution of work under the 7th Cargo Berth by them, and failed to take suitable action to recover the Corporation’s money, promptly. By the aforesaid act, the said Sri Nagaraju, Manager (P) displayed negligence in the performance of his official duties and acted in a manner prejudicial to the interests of the Corpn., and thus violated the provisions of Sub-rules (5) and (9) of Rule 5 of the Conduct, Discipline &Appeal Rules of the Corporation. ARTICLE II: While functioning in the aforesaid capacity, the said Sri Nagaraju approved payment of Rs.20,28,422.90 for a quantity of 14,086.27 cu.mtrs. to M/s. Jaisu Shipping Co., against their Bill No. JS/DCI/VII/D-3 dt: 08.06.1992, wherein the actual quantity dredged was inflated by the Contractor. By approving the said payment, Sri Nagaraju showed undue favour to the Contractor. By the aforesaid act, the said Sri Nagaraju failed to maintain absolute integrity, displayed lack of devotion to duty and negligence in the performance of his duties and thereby violated the provisions of Sub-rule 1(i) & (ii) of Rule 4 and Sub-rule 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corporation. ARTICLE III: While functioning in the aforesaid capacity, and as Engineering-in- Chief of the contract, the said Sri Nagaraju, by approving and releasing payment against the Bills of M/s. Jaisu Shipping Co. (Pvt.) Ltd., for dredging underneath 7th Cargo Berth of Kandla Port Trust, without deducting the quantities towards the volume of pillers and muffs/tie-beams underneath the berth from the measured quantity, as required by the contractual conditions, acted negligently and showed undue favour to the Contractor. By the aforesaid act, the said Sri Nagaraju, Manager (P), displayed lack of devotion to duty and negligence in the performance of his duties, acted in a manner prejudicial to the interests of the Corpn., and thereby violated the provisions of Sub-rule 1 (ii) of Rule 4 and Sub-rules 5 and 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corporation. ARTICLE IV: While functioning in the aforesaid capacity, as the Head of the Project Office, Kandla, the said Sri Nagaraju, Manager (P), kept the Work Boat idle, even when it was in working condition, instead of putting the same to gainful use as a routine boat, on regular basis, for the Dredgers and also failed to procure/cause to procure the sea water pump required for Workboat –I promptly, due to which the Work Boat was non-operational from 22.6.92 to 30.7.92. By the aforesaid acts, the said Sri Nagaraju, displayed lack of devotion to duty and negligence in the performance of the official duties and acted in a manner prejudicial to the interests of the Corpn., and thus violated the provisions of Sub-rule 1 (ii) of Rule 4 and Sub-rules 5 and 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corporation. ARTICLE V: While functioning in the aforesaid capacity, the said Sri Nagaraju, approved excess payment of Rs.6,400/- to M/s. Pritam Brothers, the Boat Contractors, vide PV No. 63, dated 22.4.92, and thereby caused financial loss to the Corpn. By the aforesaid act, the said Sri Nagaraju displayed negligence in the performance of his official duties and acted in a manner prejudicial to the interests of the Corpn., and thereby violated the provisions of Sub-rules 5 and 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corpn. ARTICLE VI: While Shri Nagaraju was functioning in the aforesaid capacity and when certain materials of DR-6 were required to be transported to Project Office, Bombay, during December, 1991, for the immediate use of Mandovi- II, he arranged dispatch of the same in violation of the prescribed procedure, whereby the consignment, whose cost was about Rs.1 lakh, was lost and he also failed to take follow-up action for restoration of the Corporation’s property on his own, for about 10 months after the loss of the property ;and till he was directed to do so by the Head Office. By the aforesaid acts, the said Sri Nagaraju displayed lack of devotion to duty and negligence in the performance of his official duties and acted in a manner prejudicial to the interests of the Corpn., and thus violated the provisions of Sub-rule 1 (ii) of Rule 4 and Sub-rules 5 and 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corpn. ARTICLE VII: While functioning as Head of the DCI Project Office at Paradip, during June, 93, Sri Ch. Nagaraju, Manager (Projects), awarded the contract for supply of a diesel-driven car to one Sri Nabaghan Rout, who was not the lowest party and in deviation of the contractual conditions, and showed undue favour to the contractor. By the aforesaid act, the said Sri Nagaraju displayed lack of devotion to duty and negligence in the performance of his official duties, acted in a manner prejudicial to the interests of the Corpn., and thereby violated the provisions of Sub-rule 1 (ii) of Rule 4 and Sub-rules 5 and 9 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corpn. ARTICLE VIII: While under suspension from 5.7.93, Sri Ch. Nagaraju left his Headquarters, i.e., Paradip, and visited Cuttack and Bhubaneswar on 7.7.93 and 9.7.93 respectively, un-authorisedly and in violation of the instructions of the CMD as stipulated in the suspension order and also unauthorisedly used the Taxi engaged by the Project Office, for traveling from Paradip to Cuttack and back on 7.7.93. By the aforesaid acts, Sri Nagaraju violated the orders of the CMD, committed an act subversive of discipline and good behaviour and also unauthorisedly used the Corporation’s vehicle at Corporation’s expenses, and, thereby, violated the provisions of Sub-rules 6, 20 and 37 of Rule 5 of the Conduct, Discipline & Appeal Rules of the Corpn. The petitioner submitted his explanation denying the charges. Not being satisfied with the petitioner’s explanation, a departmental enquiry was ordered, an enquiry officer appointed and, on completion of the enquiry, the enquiry officer submitted his report on 25.01.1996. The petitioner was called upon, vide letter dated 01.02.1996, to submit his representation to the findings in the enquiry report and, pursuant to the representation submitted by the petitioner on 23.02.1996, the second respondent passed an order on 04.10.1996 imposing on him the punishment of removal from service. Aggrieved thereby the petitioner preferred an appeal to the first respondent on 14.10.1996 under Rule 34 of the Conduct, Discipline and Appeal Rules and the said Appeal was dismissed by order dated 13.06.1997. Sri M.P. Chandramouli, learned Counsel for the petitioner, would seek to have the order of punishment of removal from service quashed mainly on the ground that the charges held established in the enquiry, and the findings of the enquiry officer in this regard, are based on no evidence. Learned Counsel would contend that the disciplinary authority mechanically, and without application of mind, had approved the findings of the enquiry officer though these findings were based merely on surmises and conjectures and, while the petitioner had raised several contentions in appeal, the appellate authority had failed to consider them and had, without proper application of mind, mechanically rejected the appeal preferred by the petitioner. Learned Counsel would contend that even if this Court were to come to the conclusion that some of, and not all, the charges leveled against the petitioner were established, since the charges do not relate to misappropriation of company’s properties and, at best, amount to lack of proper supervision on his part and negligence in the discharge of duties on the part of his subordinates, the punishment of removal from service is grossly disproportionate. Learned Counsel would point out that the petitioner has crossed the age of superannuation and, even if this Court were to set aside the punishment, the only benefit which can be extended to the petitioner is payment of back wages as compensation. Learned Counsel would contend that, since the matter has been pending on the file of this Court, for the past more than a decade, no useful purpose would now be served in remanding the matter back either to the appellate authority or to the disciplinary authority and, with a view to give a quietus to the entire dispute, this Court should, itself, substitute the punishment imposed by the disciplinary authority with a lesser punishment. Learned Counsel would rely on Cholpadi Jagannath Kamath Vs. P.S.V. Mallya[8]. Sri D.V. Sitaramamurthy, learned Standing Counsel for the respondent corporation, on the other hand, would submit that the evidence on record is sufficient to hold the charges levelled against the petitioner to be established. Learned Counsel would submit that this Court, in proceedings under Article 226 of the Constitution of India, would neither sit in appeal over the findings recorded in a domestic enquiry nor would it re-appreciate the evidence on record or substitute its views for that of the enquiry officer. Learned Counsel would contend that, even if two equally plausible views could be arrived at on the evidence adduced in the enquiry, this Court would exercise restraint as otherwise it would amount to this Court sitting in judgment over the findings of the enquiry officer. Learned Counsel would contend that the charges held established in the departmental enquiry are grave and serious in nature and that, for the charges held proved, the punishment of removal from service was justified. Learned Counsel would submit that, since the nature and extent of punishment to be imposed were in the employer’s realm it was not for this Court to substitute the punishment imposed by the second respondent with another. Learned Counsel would contend that, since the charges held established include showing undue favour to the contractor and failure to maintain absolute integrity, the punishment imposed can neither be said to be grossly disproportionate nor is it one which shocks the conscience of this Court and, therefore, no interference was called for. Learned Counsel would contend that, even in cases where the punishment is found to be shockingly disproportionate, it was not for this Court to substitute the punishment imposed by the employer with another. He would rely on K.S.S.N. Sarma Vs. State Bank of India[9] and Lalit Popli Vs. Canara Bank[10]. Since the contentions urged on behalf of the petitioner, to have the order of punishment quashed, is mainly that the charges held established are based on surmises and conjectures, no evidence and that the findings are perverse, it is necessary to examine, to this limited extent, the evidence on record. As noted above “no evidence” does not mean total dearth of evidence. It only means that the evidence on record is such on the basis of which no reasonable man would come to the conclusion that the charges levelled against the delinquent employee are established. The ultimate test is whether, on the evidence adduced in the enquiry, a reasonable man would come to the conclusion that the charges leveled against a delinquent employee are held established in the departmental enquiry and it is the Court which dons the robes of the “reasonable man”. While the first Article of charge has been held, by the enquiry officer himself, as not to have been established, Sri M.P. Chandramouli, learned Counsel for the petitioner, would place emphasis on the fact that both Articles 1 and 2 are based on the very same set of facts and, having held that Article No.1 was not established, the findings of the enquiry officer, that Article No.2 was established, is perverse. As noted above, the first charge against the petitioner was that he had approved excess payment of 308 cu.mtrs amounting to Rs. 44,352/- to the sub-contractor M/s. Jaisu Shipping Co. Pvt. Ltd against their bill dated 08.06.1992 for execution of the work under the seventh Cargo Berth at Kandla Port and that he had failed to take suitable action to recover the corporation’s money promptly. The imputations of misconduct with respect to Article No.1 is that, while the sub-contractor had raised the bill dated 08.06.1992 and was paid for the total progressive quantity of Rs.24,572.37 cu.mtrs., the Kandla Port Trust had paid, the Dredging Corporation of India Limited, for a progressive quantity of Rs.24,263.92 cu.mtrs, and that excess payment was made to the contractor at Rs.144/- per cu.mtrs and, while payment was made on 15.06.1992, the petitioner had failed to seek refund from the contractor promptly or to deduct the excess amount from the security deposit of the contractor. The enquiry officer relied on the statement of Sri K. Kumar, Assistant Manager (Survey) (S-5) despite the petitioner’s objection that, since he was not afforded an opportunity to examine Sri K. Kumar, the said statement should not be taken into account. The Enquiry Officer held that since the petitioner had himself relied upon the statement of Sri K. Kumar (Ex.S-5) in his defence brief, there was no reason why the statement should not be relied upon for its evidentiary value. While noting that, in the said statement (Ex.S-5) in the remarks column it was shown that a quantity of 308.45 cu.mtrs was shown to have been paid in excess to the contractor, the enquiry officer held that nowhere in the two statements of the Assistant Manager (Survey) was it recorded by him that the reduction in quantity, by the Kandla Port Trust, was due to an arithmetical mistake. While noting that excess payment of 308 cu.mtrs was made, the enquiry officer expressed his disinclination to agree with the management’s stand that undue favour was shown to the contractor by allowing excess payment since, at the time of approving the payment against the relevant bill of the contractor, the petitioner was not aware that it would result in excess payment and it was only