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1. Present petition is filed by the petitioner under Article 226 of the Constitution of India for the following reliefs.

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2. Facts of the present case, in nutshell, are that the petitioner was appointed as Assistant Manager in the Central Workshop and Transport Section and he was assigned certain duties of handling MACT cases and purchase of petrol and diesel for the Corporation and one Shri B. M. Upadhyay was assigned the same duties and he was also given duties with regard to MACT Cases for this entire period except one year beginning from 01.05.1999 to 11.06.2000, which the petitioner was In- charge of such cases. That due to negligence, a charge-sheet came to be issued to the petitioner with respect to handling MACT cases and petrol diesel work during the period from 05.02.1996 to 27.06.2001 whereby eight charges were levelled against the petitioner, which revolves non-compliance of directions of the then Joint Director Mr.J. S. Makwana and in the entire charge-sheet, no allegation of any financial loss was averred against the petitioner. It is the case of the petitioner that after completion of departmental inquiry, the Inquiry Officer has submitted a report mainly on the basis of the deposition of Mr.J. S. Makwana and Inquiry Officer has not considered the fact that the petitioner was not In-charge of MACT cases during the entire Page 3 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined five years period, but he was only In-charge of one year and the petrol diesel duties were jointly shared by him and several other officers including one Mr.B. M. Upadhyaya, however, only the petitioner found guilty of five charges out of eight charges. It is the case of the petitioner that the final show-cause notice issued to the petitioner along with the report of the Inquiry Officer, which came to be replied by the petitioner and the case was heard by the then Labour Officer along with Mr.D. B. Makwana and after considering the relevant documents, the Disciplinary Authority held that the petitioner was not guilty of any charges and after retirement of Mr.D. B. Makwana, without hearing the petitioner, another report was prepared by the Labour Officer and next Deputy Commissioner held that the petitioner was guilty for five charges similar to inquiry report, which was placed before the Municipal Commissioner, who passed the order imposing penalty of Rs.2,76,000/- and stoppage of five increments. The petitioner preferred appeal, which was not entertained on the ground of lack of jurisdiction and, thereafter, review application came to be filed by the petitioner, which was rejected on the ground that no such case for review was made Page 4 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined out.

3. Being aggrieved and dissatisfied with the impugned order and consequential deduction of salary of the petitioner, the present petition is filed.

4. Heard Mr.Meet Kakadia, learned counsel appearing for the petitioner and Mr.H. S. Munshaw, learned counsel appearing for the respondent.

5. Mr.Meet Kakadia, learned counsel appearing for the petitioner would submit that the charges leveled against the petitioners are not proved and no any evidence led by the department to prove the charges against the petitioner. He would submit that out of eight witnesses, seven witnesses did not know anything about the charges. He would submit that the petitioner having duties for a period of only one year and the charges with regard to the MACT cases are of the year 1995- 1996 and upto 2000. He would submit that before inflicting the punishment, the department has to give notice for proposed punishment, which was not done and even the inquiry was not properly conducted and no charges were proved and the whole Page 5 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined inquiry report is without proof of such documents. He would submit that the entire report of the Inquiry Officer and acceptance the same by the authority is illegal and not sustainable in the eye of law. He would submit that there was no notice or mention with regard to financial loss or proposed punishment, in the initial charge-sheet or during the proceedings on the basis of the vague calculation, penalty of Rs.2,76,000/- is imposed. He would submit that the respondent authority has not considered the reply filed by the petitioner and not considered the fact that he was not appointed as MACT case handler for the entire time during which he has been penalized and one Mr.Upadhyay and other workers jointly responsible for petrol diesel work, who were not penalized and the entire inquiry was one sided affair without adequate consideration of the say of the petitioner. He would submit that though the petitioner was permitted to cross-examine the witnesses, only one witness deposed against him and no opportunity was given to lead evidence and, therefore, there is clear breach of violation of principles of natural justice. He would submit that the final show- cause notice and the final order both are completely different to Page 6 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined each other and punishment inflicted upon the petitioner is disproportionate to the charge levelled against him. He would submit that there is clear discriminatory treatment since one Mr.Upadhyay who is at fault was let off with a penalty of Rs.1,000/- and the petitioner was imposed much higher punishment. He would also submit that the entire basis of the calculation of penalty is absolutely vague as it is based on assumption and such calculation cannot be tenable in the eyes of law. He has submitted that there is a gross violation of the principles of natural justice and the hearing of the case of the petitioner was done by one Mr.D. B. Makwana and the final report and order was passed by another. Over-and-above, the oral submissions, learned counsel of the petitioner has also submitted the written submissions. He would submit that considering over all facts of the case, the present petition may be allowed.

5.2 In support of his case, Mr.Kapadia, learned counsel has referred to relied upon the following decisions.

6. Mr.H. S. Munshaw, learned counsel appearing for the respondent would oppose the present petition and submit that the department has caused financial loss on account of negligence on the part of the petitioner. He would submit that the charge-sheet was issued to the petitioner on 18.08.2001 and the final order is passed on 04.04.2009 and during this inquiry period, the petitioner was given opportunities to defend himself and all submissions made and the submissions of the petitioner have been taken into consideration by the Inquiry Officer, which is evident from perusal of the report of the Inquiry Officer. He Page 8 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined would submit that the Inquiry Officer has given the report after proper appreciation of evidence on record and after giving fair hearing to the petitioner and the inquiry report is a reasoned one and each and every issue which is framed in the charge-sheet has been properly and correctly dealt with. He would submit that the petitioner was in charge of MACT cases as he was in Central Workshop during 1996 to 2001 and after the evidence of the witnesses, the Presiding Officer has made written submissions in support of the charges and come to the conclusion that the charges levelled against the petitioner are proved and the department has given sufficient opportunity to the petitioner to prove his case. He would submit that the decisions referred to and relied upon on behalf of the petitioner are not applicable to the present case. He would submit that the petition being meritless deserves to be dismissed.

7. In the case of Allahabad Bank (supra), the Hon'ble Supreme Court has held and observed in para-7, 8 and 9 as under:-

8. In the case of Anil Kumar (supra), the Hon'ble Supreme Court has held and observed in para 5 and 6 as under:-

9. In the case of Shankar Dass (supra), the Hon'ble Supreme Court has held and observed in para-7 as under:-

10. The questions raised in the present petition as to whether the Court can interfere in the order passed by the Disciplinary Page 13 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined Authority after evaluating the evidence while exercising the power under Articles 226 and 227 of the Constitution of India or not and whether the punishment imposed upon the petitioner is disproportionate the charges levelled against the petitioner or not.

11. This Court has considered the facts of the case and submissions canvassed on behalf of both the sides. This Court has also perused the affidavit-in-reply, affidavit-in-rejoinder and further affidavit filed on behalf of the respective parties and the decisions cited at the Bar. It appears from the material on record that the petitioner was appointed as Assistant Manager and he was assigned work of handling MACT cases and purchase of petrol and diesel for the Corporation and due to negligence, a charge-sheet came to be issued and eight charges were levelled against him and an inquiry was initiated against the petitioner and submitted the report and on the basis of the report, the respondent imposed penalty and stoppage of five increments. It also appears that the petitioner preferred appeal which was not entertained on the ground of lack of jurisdiction and, thereafter, he filed review application, which came to be rejected. Page 14 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024

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12. After appreciating the contentions and the defence raised by the petitioner during the course of the inquiry, the inquiry officer has submitted a report to the Disciplinary Authority. The delinquent was given full opportunity to raise his defence and after considering the reply and the defence, the Disciplinary Authority has come to the conclusion that the charges levelled against the petitioner are proved and thus, the impugned order of punishment imposed is just and proper as per the law laid down by the Hon'ble Supreme Court as well as this Court time and again.

13. It is well settled law that the burden of proof in the departmental proceedings lies upon the delinquent/s, who is challenging the impugned action of the respondent more particularly the order passed by the Disciplinary Authority. Now, it is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Orissa Mining Corporation Limited Vs. Ananda Chandra Prusty reported in (1996) 11 SCC 600 wherein the Hon'ble Supreme court has decided the question of burden of proof in disciplinary proceedings. In the said decision , Page 15 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined the Hon'ble Supreme Court has held and observed in para-6 as under:-

14. The Hon'ble Supreme has reiterated that the burden of proof in the departmental proceedings lies upon the delinquent if he wants to examine the witnesses in support of his defence, thereby he has to establish his innocence. Here in the present case, the petitioner has failed to establish his defence by examining the witnesses.

15. So far as the scope of interference, while exercising the powers under Articles 226 and 227 of the Constitution of India in Page 16 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined the departmental proceedings is concerned, the Hon'ble Supreme Court has time and again declared that once findings of fact, based on appreciation of evidence are recorded, normally the High Court may not 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.

16. It is also worthwhile to refer to the decision of this Court in the case of C S. Amin Vs. Assistant General Manager SBI, Region III & 2 reported in 2016 LawSuit (Guj) 1916 and Bhikhubhai Kamabhai Dabhi Vs. Surat Municipal Corporation and 2 reported in 2017 LawSuit (Guj) 9 where in this Court has decided similar issue as involved in the present petition.

17. In the case of C. S. Amin (supra), this Court has held and observed in paras - 29, 30 and 31 as under:-

(1) To judge the validity of any administrative order or statutory discretion normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgement on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Page 18 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms."

In Apparel Export Promotion Council Vs. A.K. Chopra - (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-

In Om Kumar Vs. Union of India - AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham 's case (supra), noticed the decision of the House of Lords in R. Vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced below:

In Regional Manager U.P. SRTC V. Hoti Lal (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted Page 22 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

30 The above noted decision of this Court gives a clear idea of the limited scope of judicial review of the discretion Page 23 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

31. For determination of the question whether the punishment imposed by the disciplinary authority is grossly or shockingly disproportionate, the Court has to take into consideration all the relevant factors including the nature of charges proved, the past conduct of the employee, the punishment if any imposed earlier, the nature of duties assigned to the employee having due regard to their sensitiveness, performance norms if any laid down by the employer and above all the paramount requirement of maintaining discipline in the service."

18. In the case of Bhikhubhai Kamabhai Dabhi (supra), this Court has held and observed in paras - 17, 18 and 21 as under:-

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(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i). the finding of fact is based on no evidence. 13 Under Article 226/227 of the Constitution of India, the High Court shall not:

14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao1 , many of the above principles have been discussed and it has been concluded thus:

15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do." 16 These principles have been succinctly summedup by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything. 18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its Page 30 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined jurisdiction under Article 226/227 of the Constitution of India. 20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

19. So far as the quantum of punishment is concerned, the Court would not interfere in the order of the Disciplinary authority passed on the basis of the departmental inquiry by evaluating the evidence and by recording the findings based upon the evidence led before the Disciplinary Authority.

20. It is worthwhile to refer to and relied upon the decisions of the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board Vs. T. T. Murali Babu reported in (2014) 4 SCC 108 and in the case of State Bank of Indai V. A.G.D. Reddy reported ni 2023 (11) Scale 530.

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21. In the case of Chennai Metropolitan Water Supply and Sewerage Board (supra), the Hon'ble Supreme Court has held and observed in paras - 18 and 30 as under:-

22. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. A. G. D. Reddy wherein the Hon'ble Supreme Court has held and observed in para-32 as under:-

23. The above-mentioned decisions of this Court gives a clear idea of the limited scope of judicial review of the discretion Page 33 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined exercised by the employer to impose the particular penalty on the delinquent employee. The Supreme Court has repeatedly emphasised that the High Courts cannot exercise appellate jurisdiction in such matters and substitute their opinion for the one formed by the disciplinary authority. It has been held that the punishment imposed by the competent authority cannot be modified / substituted with a lesser penalty unless the Court is satisfied that the same is grossly or shockingly disproprtionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

24. On perusal of the aforesaid aspects, this Court is of the opinion that the findings recorded by the Disciplinary Authority based upon the inquiry report, the prayer sought for by the petitioner that during the course of inquiry and departmental proceedings there is breach of principles of natural justice as the petitioner was not given an proper opportunity is against the facts of the present case. In fact, the petitioner ought to have examined the witnesses in his favour and by leading cogent evidence, he could have established his defence before the Page 34 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined Disciplinary Authority, however, he has not examined any witnesses except the witness who has referred to and relied upon by the otherside. It is settled legal position that for proving the guilty not to examine number of witnesses but only one witness is sufficient to prove the guilt. In the present case, one of the witnesses who have deposed against the petitioner. It is not the case of the petitioner that he has some animosity with the petitioner and, therefore, he deposed against the petitioner. Considering the facts of the case, this Court is of the opinion that this Court is not sitting in appeal over the disciplinary proceedings and therefore this Court is not evaluated or dwelled into the evidence by the Disciplinary Authority.

25. Considering the totality of facts, this Court is of opinion that the authority has rightly arrived at the conclusion that the petitioner was guilty of misconduct, which was sufficient to impose punishment upon. This Court finds no reasons to interfere with the same either.

26. Considering overall facts and circumstances of the case and the decisions of this Court as well as Hon'ble Supreme Court, Page 35 of 36 Downloaded on : Fri Mar 22 21:37:13 IST 2024 NEUTRAL CITATION C/SCA/4808/2010 JUDGMENT DATED: 21/03/2024 undefined this Court is of the opinion that the respondent - authority has recorded its findings after perusing and going through the materials on record and, therefore, the respondent - authority has not committed any error in passing the impugned order and hence, the present petition is devoid of merits and the same deserves to be dismissed.

27. For the foregoing reasons, this petition fails and is hereby dismissed. Rule is discharged. Interim relief, if any, shall stand vacated. There shall be no order as to costs.

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