UNION OF INDIA & ORS. Vs. P.GUNASEKARAN
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), ----- of 2014, Judgment Date: Nov 19, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. /2014
[Arising out of S.L.P. (Civil) No. 23631 of 2008]
Union of India and others ... Appellant (s)
Versus
P. Gunasekaran ... Respondent (s)
J U D G M E N T
KURIAN, J.:
Leave granted.
Respondent, while working as Deputy Office Superintendent, Central Excise
Third Division, Coimbatore was arrested by Police in a criminal case
involving cheating and extortion of money. The police registered a criminal
case under Sections 143, 319 and 420 of the Indian Penal Code (45 of 1860)
(hereinafter referred to as 'IPC') against the respondent. Separate
departmental proceedings were also initiated against him under Central
Civil Services (Classification, Control and Appeal) Rules, 1965.
Following are the three articles of charge:
"ARTICLE-I
That the said Shri P. Gunasekaran, Deputy Office Superintendent (Level-II)
(under suspension of Central Excise, Headquarters Office, Coimbatore while
working in the Valuation Cell, Hqrs. Office, Coimbatore came to the office
on 23.11.1992, in the morning and signed the attendance register, in token
of having come to the office and left office without permission and came to
the office the next day, i.e., on the morning of 24.11.1992, and affixed
his initials in the departure column against the dated 23.11.1992 and
willfully falsified the official register. He has thereby committed gross
misconduct and failed to maintain absolute integrity and devotion to duty
and has behaved in a manner unbecoming of a Government servant, in
contravention of the provisions of Rule 3(1)(i), 3(1)(ii), 3(1)(iii) of
Central Civil Services (Conduct) Rules, 1964.
ARTICLE-II
That the said Shri P. Gunasekaran, being a ministerial Officer impersonated
himself as a Central Excise Executive Officer and on 23.11.1992 about 2.30
p.m. unauthorizedly conducted passenger checks in a public transport bus at
Ukkadam Bus Stand, by usurping the powers of Executive Officer and thereby
committed gross misconduct and failed to maintain absolute integrity and
devotion to duty and behaved in a manner unbecoming of a Government servant
in contravention of the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii)
of CCS (Conduct) Rules, 1964.
ARTICLE-III
That the said Shri P. Gunasekaran, on 23.11.1992 at about 2.30 P.M.,
abused his position unauthorisedly conducted passenger check, by usurping
the powers of Executive Officer, threatened a passenger bound for Kerala
and thereby committed gross misconduct and failed to maintain absolute
integrity and devotion to duty and behaved in a manner unbecoming of a
Government servant in contravention of the provisions of Rule 3(1)(i),
3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964."
In the disciplinary inquiry, all the charges were proved and, on due
procedure, the respondent was dismissed from service by order dated
10.06.1997. The said order of dismissal dated 10.06.1997 was challenged
before the Central Administrative Tribunal, Chennai Bench in O.A. No. 805
of 1997. During the pendency of the original application before the Central
Administrative Tribunal, in criminal appeal, the First Additional District
and Sessions Judge, Coimbatore acquitted the respondent.
The Central Administrative Tribunal, vide order dated 27.10.1999, took the
view that the respondent having been acquitted on identical set of charges,
he could not be proceeded against in respect of second and third articles
of charge in the disciplinary proceedings. However, on the first Charge,
the Tribunal held as follows:
"11. ... There is one another charge on which, the applicant has been
punished by the disciplinary authority, i.e., Article I which has been
extracted above. It cannot be said this charge is also part of the criminal
prosecution. On the evidence adduced, the inquiring authority has come to
the conclusion that Article I has been proved taking note of the
applicant's letter dated 11.11.1992 addressed to the Collector of Central
Excise when he was kept under remand. This finding given by the enquiry
officer has been accepted by the disciplinary authority. Considering all
the three charges as proved, the order of dismissal has been passed, but
since we have arrived at a conclusion that charges 2 and 3 cannot stand in
view of the acquittal by the criminal court, in our view, the quantum of
punishment has to be considered by the disciplinary authority. ... ... ...
So the impugned order is set aside, the matter is remitted back to the
disciplinary authority to consider the quantum punishment taking note of
our conclusions and observations made above. The disciplinary authority
shall consider the quantum of punishment and pass orders within a period of
8 weeks from the date of receipt of a copy of this order. ..."
The appellants herein challenged the order of the Administrative Tribunal
in Writ Petition No. 355 of 2000 before the Madras High Court. The said
writ petition was disposed of by judgment dated 12.01.2000. The High Court
declined to interfere with the order passed by the Administrative Tribunal.
However, in respect of Articles of Charge no.I which does not have any
relation to the criminal case, it was held at paragraph-6 as follows:
"6. ... Charge No. 1 relates to the unauthorized absence of the
respondent from the office. The tribunal was of the view that dismissal
from service was not warranted for the said charge. We do not think that
the view taken by the Tribunal either unreasonable or irrational which
could be interfered with by this court under Article 226 and 227 of the
Constitution of India. ..."
The disciplinary authority, accordingly, passed order dated 28.02.2000
which reads as follows:
"Whereas on consideration of the facts and records of the case with regard
to Article-I of the disciplinary proceedings against Shri P. Gunasekaran
and the observation made in Hon'ble Tribunal's order, the undersigned is
satisfied that good and sufficient reason exists for imposing upon him the
penalty herein after specified, in modification of penalty of 'dismissal
from service' ordered vide C.No.II/10A/92-Vig. Dated 10.6.97.
Now, therefore, I order under clause (vii) of Rule 11 of Central Civil
Services (CCA) Rules, 1965 that Shri P. Gunasekaran, dismissed as Deputy
Office Superintendent, be compulsorily retired from the date from which he
was dismissed from service."
Respondent challenged the order dated 28.02.2000 whereby he was
compulsorily retired from service from the original date of dismissal in
O.A. No. 521 of 2001 before the Central Administrative Tribunal, Chennai
Bench. Dismissing the O.A., it was held as follows:
"10. ... It is for the disciplinary authority to decide in what way the
punishment is to be imposed and this Tribunal cannot act as an appellate
court in such cases. With this in mind, if we read the Article-I of the
charge extracted above, it is clear that the applicant does not deserve any
sympathy because he manipulated the records. It is not a case of
unauthorized absence. The applicant after signing the attendance register
left the office and yet he made attempts to show that he was present in the
office for the whole day. It amounts to falsification of the records and
the conduct of the applicant shows that he was dishonest or he has not
maintained the integrity as a government officer. Falsification of records
is a criminal offence. Taking into consideration the gravity of charges, we
hold that the punishment imposed on the applicant is proper and the same is
not outrageous nor it shocks our conscience. The O.A. is dismissed. ..."
The said order dated 08.02.2001 was challenged by the respondent before the
High Court of Judicature at Madras which has lead to the impugned judgment
dated 18.09.2007 in Writ Petition No. 29757 of 2002.
The High Court set aside the order of the Central Administrative Tribunal,
interfered with even the finding of the enquiry officer, set aside the
punishment and directed reinstatement with backwages and all service
benefits. To quote:
"2. We have gone through the materials placed on record and also gone
through the letter of the petitioner dated 11.12.1992 on which the enquiry
officer has given his findings whereby he brought to the notice of the
Collector what was transpired on 23.11.1992, and there is no admission made
by the petitioner. Therefore, we hold that the enquiry officer has not
considered the letter in the proper perspective to arrive at the right
conclusion. Therefore, the letter dated 11.12.1992 cannot be taken as the
basis, on which, the punishment was imposed and therefore the impugned
order is liable to be set aside. Further, as rightly contended by the
learned Senior Counsel appearing for the petitioner while modifying the
order, the respondents should have fixed the date of compulsory retirement
from the date of issue of the order, instead of fixing the compulsory
retirement from the date of order of dismissal. Further, after going
through the contents of the letter, it seems the petitioner has not
admitted the charge. Therefore, as rightly contended by the learned Senior
Counsel appearing for the petitioner except the letter of the petitioner,
there is no other evidence and whatever evidence is required with regard to
charges 2 and 3, which were framed on the basis of the registration of the
criminal case against the petitioner, which ultimately ended in acquittal,
the punishment imposed on the basis of the above said criminal case has to
go. Therefore, the disciplinary authority has not properly understood the
order passed by the tribunal to reconsider the punishment as per the charge
memo. The enquiry officer's report is not based on any evidence except
based on the letter by the petitioner, which the petitioner has not
admitted of the charges. The petitioner was acquitted from the charges 2
and 3. Therefore, the only charge, which we find is not based on any
material or evidence. Therefore, the punishment of compulsory retirement
imposed on the petitioner is unsustainable and the petitioner is to be
reinstated. It is brought to the notice of this court that the petitioner
has attained the age of superannuation. Therefore, the salary payable to
the petitioner from the date of his compulsory retirement till the date of
his superannuation has to be treated the reinstatement with all backwages
and monetary benefits which shall be calculated and paid to him. The
terminal benefits and pension as applicable under the Rules shall be
calculated and paid to the petitioner."
Thus aggrieved, the Union of India and others are before this Court.
Heard Shri Ranjit Kumar, learned Solicitor General appearing for the
appellants and Shri Sumeer Kumar Shrivastava, learned counsel appearing for
the respondent.
Despite the well-settled position, it is painfully disturbing to note that
the High Court has acted as an appellate authority in the disciplinary
proceedings, re-appreciating even the evidence before the enquiry officer.
The finding on Charge no. I was accepted by the disciplinary authority and
was also endorsed by the Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a second court of
first appeal. The High Court, in exercise of its powers under Article
226/227 of the Constitution of India, shall not venture into re-
appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that
behalf;
c. there is violation of the principles of natural justice in conducting
the proceedings;
d. the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and merits of
the case;
e. the authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at such
conclusion;
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.
Under Article 226/227 of the Constitution of India, the High Court shall
not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has
been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be
based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its
conscience.
In one of the earliest decisions in State of Andhra Pradesh and others v.
S. Sree Rama Rao[1], many of the above principles have been discussed and
it has been concluded thus:
"7. ... 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 enquiry against a public servant: it 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 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 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 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 their
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 for a writ under Article 226 of the Constitution."
In State of Andhra Pradesh and others v. Chitra Venkata Rao[2], the
principles have been further discussed at paragraph-21 to 24, which read as
follows:
"21. The scope of Article 226 in dealing with departmental inquiries has
come up before this Court. Two propositions were laid down by this Court in
State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view
that in considering whether a public officer is guilty of misconduct
charged against him, the rule followed in criminal trials that[pic]an
offence is not established unless proved by evidence beyond reasonable
doubt to the satisfaction of the Court must be applied. If that rule be not
applied by a domestic tribunal of 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. Second,
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 to review the evidence and to arrive at an
independent finding on the evidence. The High Court may 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. The
departmental authorities are, if the enquiry is otherwise properly held,
the sole judges of facts and if there is some legal evidence on which their
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 for a writ under Article 226.
22. Again, this Court in Railway Board, representing the Union of India,
New Delhi v. Niranjan Singh said that the High Court does not interfere
with the conclusion of the disciplinary authority unless the finding is not
supported by any evidence or it can be said that no reasonable person could
have reached such a finding. In Niranjan Singh case this Court held that
the High Court exceeded its powers in interfering with the findings of the
disciplinary authority on the charge that the respondent was instrumental
in compelling the shut-down of an air compressor at about 8.15 a.m. on May
31, 1956. This Court said that the Enquiry Committee felt that the evidence
of two persons that the respondent led a group of strikers and compelled
them to close down their compressor could not be accepted at its face
value. The General Manager did not agree with the Enquiry Committee on that
point. The General Manager accepted the evidence. This Court said that it
was open to the General Manager to do so and he was not bound by the
conclusion reached by the committee. This Court held that the conclusion
reached by the disciplinary authority should prevail and the High Court
should not have interfered with the conclusion.[pic]
23. The jurisdiction to issue a writ of certiorari under Article 226 is a
supervisory jurisdiction. The Court exercises it not as an appellate court.
The findings of fact reached by an inferior court or tribunal as a result
of the appreciation of evidence are not 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 a tribunal, a writ
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. Again 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. A finding of fact recorded by the Tribunal cannot be challenged
on the ground that the relevant and material evidence adduced before the
Tribunal is insufficient or inadequate to sustain a 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. See Syed Yakoob v. K.S. Radhakrishnan.
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."
These principles have been succinctly summed-up by the living legend
and centenarian Justice V. R. Krishna Iyer in State of Haryana and another
v. Rattan Singh[3]. To quote the unparalled and inimitable expressions:
"4. .... in a domestic enquiry the strict and sophisticated rules of
evidence under the Indian Evidence Act may not apply. All materials which
are logically probative for a prudent mind are permissible. There is no
allergy to hearsay evidence provided it has reasonable nexus and
credibility. It is true that departmental authorities and Administrative
Tribunals must be careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under the Indian Evidence
Act. For this proposition it is not necessary to cite decisions nor text
books, although we have been taken through case-law and other authorities
by counsel on both sides. The essence of a judicial approach is
objectivity, exclusion of extraneous materials or considerations and
observance of rules of natural justice. Of course, fairplay is the basis
and if perversity or arbitrariness, bias or surrender of independence of
judgment vitiate the conclusions reached, such finding, even though of a
domestic tribunal, cannot be held good. ..."
In all the subsequent decisions of this Court upto the latest in Chennai
Water Supply and Sewarage Board v. T. T. Murali Babu[4], these principles
have been consistently followed adding practically nothing more or altering
anything.
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:
"Article-I was held as proved by the Inquiry authority after evaluating the
evidence adduced in the case. Under the circumstances of the case, the
evidence relied on viz., letter dated 11.12.92 written by Shri P.
Gunasekaran, provides a reasonable nexus to the charge framed against him
and he did not controvert the contents of the said letter dated 11.12.92
during the time of inquiry. Nor did he produce any defence witness during
the inquiry to support his claims including that on 23.11.92 he left the
office on permission. There is nothing to indicate that he was handicapped
in producing his defence witness. ..."
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 jurisdiction under Article
226/227 of the Constitution of India.
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.
The impugned conduct of the respondent working as Deputy Office
Superintendent in a sensitive department of Central Excise, according to
the disciplinary authority, reflected lack of integrity warranting
discontinuance in service. That view has been endorsed by the Central
Administrative Tribunal also. Thereafter, it is not open to the High Court
to go into the proportionality of punishment or substitute the same with a
lesser or different punishment. These aspects have been discussed at quite
length by this Court in several decisions including B.C. Chaturvedi v.
Union of India and others[5], Union of India and another v. G.
Ganayutham[6], Om Kumar and others v. Union of India[7], Coimbatore
District Central Cooperative Bank v. Coimbatore District Central
Cooperative Bank Employees Association and another[8], Chairman-cum-
Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri
and others[9] and the recent one in Chennai Metropolitan Water
Supply (supra).
All that apart, on the facts of the present case, it has to be seen that
in the first round of litigation before the Central Administrative Tribunal
in order dated 27.10.1999 in O.A. No. 805 of 1997, the Tribunal had entered
a finding that "on the evidence adduced, the inquiring authority has come
to the conclusion that Article I has been proved taking note of the
appellant's letter dated 11.11.92 addressed to the Collector of Central
Excise when he was kept under remand. This finding given by the inquiry
officer has been accepted by the disciplinary authority".
That order of the Central Administrative Tribunal was challenged by the
respondent in Writ Petition No. 226 of 2000 which was disposed of by
judgment dated 12.01.2000 wherein the High Court had also endorsed the said
finding which we have already referred to herein before.
Thus, the finding on Charge no. I has attained finality. It is the
punishment of dismissal on Charge no. I which was directed to be
reconsidered by the Central Administrative Tribunal and which view was
endorsed by the High Court. On that basis only, the dismissal was converted
to compulsory retirement. Such findings cannot be reopened in the
subsequent round of litigation at the instance of the respondent. It was
only the punishment aspect that was opened to challenge.
The Central Administrative Tribunal, in the order dated 01.02.2001 in O.A.
No. 521 of 2000, after elaborately discussing the factual as well as the
legal position, has come to the conclusion that the punishment of
compulsory retirement is not outrageous or shocking to its conscience, it
was not open to the High Court to interfere with the disciplinary
proceedings from stage one and direct reinstatement of the respondent with
backwages.
The last contention is with regard to date of effect of the punishment.
According to the respondent, even assuming that compulsory retirement is to
be imposed, it could be only with effect from the date of order, viz.,
28.02.2000. We are unable to appreciate the contention. The respondent
stood dismissed from service as per order dated 10.06.1997. It was that
punishment which was directed to be reconsidered. Consequent thereon only,
the punishment was altered/substituted to compulsory retirement.
Necessarily, it has to be from the date of dismissal from service, viz.,
10.06.1997.
The impugned judgment of the High Court is set aside. The order dated
28.02.2000 passed by the disciplinary authority and confirmed by the
Central Administrative Tribunal, Chennai Bench vide order dated 01.02.2001
in O.A. No. 521 of 2000 is restored.
The appeal is allowed as above. No costs.
........................... J.
(ANIL R. DAVE)
............................J.
(KURIAN JOSEPH)
New Delhi;
November 19, 2014.
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[1] AIR 1963 SC 1723
[2] (1975) 2 SCC 557
[3] (1977) 2 SCC 491
[4] (2014) 4 SCC 108
[5] (1995) 6 SCC 749
[6] (1997) 7 SCC 463
[7] (2001) 2 SCC 386
[8] (2007) 4 SCC 669
[9] (2009) 15 SCC 620
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