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10. On the question of punishment, learned Counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court -- or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court u/art. 226. The power u/art. 226 is one of judicial review. It "is not an appeal from a decision, but a review of the manner in which the decision was made." Per Lord Brightman in Chief Constable of the North Wales Police v. Evans [1982] 3 All.E.R. 141 : [1982] 1 W.L.R. 1155 and A.B. Gandhi v. M/s. Gopinath & Sons 1992 Suppl. (2) S.C.R. 312. In other words the power of judicial review is meant "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 authorised by law to decide for itself a conclusion which is correct in the eyes of the Court". (Per Lord Marylebone in Chief Constable v. Evans). In fact is service matters, it was held by this Court as far back as 1963 that: |
The High Court is not constituted u/art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent 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 enquiry 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 u/art. 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 enquiry 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 enquiry 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...u/art. 226 of the Constitution. (State of Andhra Pradesh and Ors. v. S. Sree Rama Rao : (1964)IILLJ150SC 1963 Indlaw SC 183 |
11. Now, coming to the power of the Court exercising Judicial Review to interfere on the question of penalty, it was held by a Constitution Bench in State of Orissa and Ors. v. Bidyabhushan Mohapatra (1963)ILLJ239SC 1962 Indlaw SC 87 thus: |
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 misdemeanor established. The reasons which induce the punishing authority, it there has been an enquiry 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 enquiry 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. |
12. This principle was reiterated in Railway Board, Delhi and Anr. v. Niranjan Singh (1969)IILLJ743SC 1969 Indlaw SC 44 |
13. The same view was reiterated by this Court in Union of India v. Parma Nanda (1989)IILLJ57SC 1989 Indlaw SC 20It was an appeal from the judgment and order of an Administrative Tribunal. K. Jagannatha Shetty, J. speaking for the Bench observed in the first instance that the jurisdiction of the Tribunal is similar to the jurisdiction of the High Court in a writ proceeding and then dealt with the power of the Tribunal to interfere with the penalty imposed by the Disciplinary authority. The learned Judge referred to holding in State of Orissa v. Vidya Bhushan Mohapatra 1962 Indlaw SC 87 (quoted by us hereinabovc) and after referring to several other judgments of this Court, concluded thus: |
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 inquiry 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 of legislature or rules made under the proviso to Art. 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 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. The adequacy of penalty unless it is mala fide, is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. |
14. It is significant to mention that the learned Judge also referred to the decision of this Court in Bhagat Ram v. State of Himachal Pradesh and Ors. (1983)IILLJ1SC 1983 Indlaw SC 9 and held, on a consideration of the facts and principle thereof, that "this decision is therefore no authority for the proposition that the High Court or the Tribunal has jurisdiction to impose any punishment to meet the end of justice". And then added significantly "it may be noted that this Court exercise the equitable jurisdiction u/art. 136 (in Bhagat Ram) and the High Court and Tribunal has no such power or jurisdiction". The learned Judge also quoted with approval the observations of Mathew J. in Union of India v. Sardar Bahadur (1972) ILLJ1SC 1971 Indlaw SC 45 to the following effect: |
Now it is settled by the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra (1963)ILLJ239SC 1962 Indlaw SC 87 that if the order of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved along would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour established. |
14. It would perhaps be appropriate to mention at this stage that there are certain observations in Union of India v. Tulsiram Patel (1985)IILLJ206SC 1985 Indlaw SC 401 which, at first look appear to say that the Court can interfere where the penalty imposed is "arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service". It must however be remembered that Tulsiram Patel dealt with cases arising under proviso (a) to Art. 311(2) of the Constitution. Tulsiram Patel overruled the earlier decision of this Court in Challappan (1976)ILLJ68SC 1975 Indlaw SC 386. While holding that no notice need be given before imposing the penalty in a case dealt with under the said proviso, the Court held that if a disproportionate or harsh punishment is imposed by the disciplinary authority, it can be corrected either by the Appellate Court or by the High Court. These observations are not relevant to cases of penalty imposed after regular Inquiry. Indeed this is how the said observations have been understood in Nanda referred to above . The same comment holds with respect to the decision in Shankar Das v. Union of India (1985) IILLJ184SC 1985 Indlaw SC 297 which too was a case arising the proviso (a) to Art. 311(2). |
16. Now coming to the facts of this case it would appear that the main charge against the respondent is putting forward a false claim for reimbursement of expenditure incurred for transporting his belongings from Phek to Amarpur. So far as charge No. 5 is concerned there is no finding that the account become irregular or that any loss was incurred by the bank on account of the irregularity committed by the respondent. In the circumstances it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the disciplinary authority or the Appellate authority should consider and not the High Court or the Administrative Tribunal. In our opinion, the proper course to be adopted in such situations would be to send the matter either to the Disciplinary authority or the Appellate authority to impose appropriate punishment. |
17. For the above reasons, the appeal is dismissed with an observation that the Appellate authority shall consider whether a lesser punishment is not called for in the facts and circumstances of the case. The Appellate authority shall pass orders in this behalf within four months of the receipt of the copy of this order. No costs. |
Appeal dismissed |