2024 INSC 592
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8546-8549 OF 2024
[ @ SPECIAL LEAVE PETITION (CIVIL) NOS.12773-76 OF 2021]
THE STATE OF RAJASTHAN & ORS. … APPELLANTS
A1: THE STATE OF RAJASTHAN
A2: DEPUTY SECRETARY, DEPARTMENT OF PERSONNEL
A3: REGISTRAR, COOPERATIVE SOCIETIES, JAIPUR
VERSUS
BHUPENDRA SINGH …RESPONDENT
J U D G M E N T
AHSANUDDIN AMANULLAH, J.
Heard learned counsel for the parties.
2. Leave granted.
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3. The present appeals are directed against the common Final
Judgment and Order dated 28.01.2021 (hereinafter referred to as the
“Impugned Judgment”) passed by the Division Bench of the High Court
of Judicature for Rajasthan, Jaipur Bench (hereinafter referred to as
the “High Court”) by which D.B. Special Appeal Writs No.1695/2008,
14/2009, 15/2009 and 65/2009 were dismissed.
BRIEF FACTUAL OVERVIEW:
4. The sole respondent was appointed as Inspector (Executive) in
the year 1960 and later appointed as Assistant Registrar on 05.04.1973
on selection by the Rajasthan Public Service Commission (hereinafter
referred to as the “RPSC”). On 29.04.1976, the respondent granted
permission for construction of godown of Sadulshahar Jamidara Co-operative Marketing Society Ltd. despite the Registrar having issued a direction to consult the Public Works Department to obtain a technical
opinion. The respondent, further, appointed two persons on 04.01.1977,
despite order to get the permission from the Registrar. On 06.05.1977,
the respondent was reverted to the post of Inspector and also directed
to handover charge to Mr. Amar Chand Dhaka but he did not comply
with the same and allegedly obstructed the other person from duty.
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5. On 18.05.1977, the respondent issued an order nominating himself as Administrator of the Bharat Bus Transport Cooperative Society
Limited though he was reverted from that post and charge was taken
over from him by another person. During such period, the respondent
sold 9 shops without adopting the procedure of auction at very low
prices compared to the market value of the said shops. He is further
said to have made irregular payments on 30.05.1977. On 21.06.1977,
he withdrew an amount of Rs.9,025/- (Rupees Nine Thousand TwentyFive) from the account of the Bharat Bus Transport Cooperative Society
Limited as expenses incurred for purchase of stamps though the same
were recovered from the shop-buyers and thus, illegally kept by him.
On 01.08.1977, the Collector of the district asked the respondent to
hand over charge of Administrator of Hanumangarh Society but he did
not hand over the charge and cash balance etc. till 19.08.1977.
6. On 04.10.1979, he was placed under suspension in contemplation of departmental enquiry for having committed various irregularities.
As per the seniority list published on 05.10.1979, the respondent was at
Sl. No.39 as on 01.07.1978. On 07.02.1980, Appeal No.361/79 was
filed by the respondent seeking promotion which was dismissed on the
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ground that there were adverse entries in his Annual Confidential Records (hereinafter referred to as “ACRs”) for the years 1975-1976,
1976-1977 and 1977-1978. However, it was observed that if the said
adverse entries were expunged, the respondent would have a case for
reconsideration.
7. On 03.10.1980, charge sheet under Rule 16 of the Rajasthan
Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the “1958 Rules”) was issued against the respondent levelling 16 charges including sub-charges. The preliminary statement of the respondent was recorded on 23.05.1983 in connection with
the said enquiry. Examination of witnesses took place on various dates.
In the meantime, on 28.11.1983, in Appeal No.237/82, adverse entries
in the ACR were expunged. On 05.03.1984 and 04.06.1984, detailed
statement of the respondent was also recorded. Finally, the enquiry report was submitted on 19.04.1984. Thereafter, the Departmental Promotion Committee (hereinafter referred to as the “DPC”) in its meeting
held on 21.11.1984 did not find the respondent fit for promotion as he
was under suspension on that day. The respondent had moved the
High Court in Single Bench Civil Writ Petition No.590/1983, wherein
suspension order dated 04.10.1979 against the respondent was pro-
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spectively stayed by the learned Single Judge. The respondent filed Appeal No.358/85 for consideration of his promotion to the posts of
Deputy Registrar with effect from 23.02.1979 and Joint Registrar with
effect from 06.04.1985.
8. After completion of the enquiry and the charges having been
proved, the respondent was removed from service by order dated
25.09.1985. Appeal No.358/85 preferred by the Respondent was partially allowed, by order dated 21.08.1991, directing the appellant to convene the DPC for the vacancies of the year 1984-1985 and review the
case of the respondent for promotion to the post of Deputy Registrar.
The respondent had also moved against his order of removal before the
High Court in Single Bench Civil Writ Petition No.793/1986 wherein
vide order dated 18.12.1991, the order of removal was quashed granting liberty to the appellants to conduct enquiry and proceed after giving
the respondent a copy of the enquiry report and the opinion of the
RPSC. Compliance of the said order was made on 07.04.1992. The respondent submitted written representations on 25.05.1992 and
10.06.1992 denying all the charges levelled against him. On
11.09.1992, the DPC found the respondent suitable for 1980-81 but not
for 1979-80 for which the recommendation was kept in a sealed cover
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in view of pendency of the departmental enquiry. In the challenge to the
decision of the DPC by the respondent in Contempt Petition
No.358/1985, by order dated 08.04.1993, the High Court upheld the decision of the DPC. On 28.09.1993, after affording an opportunity of
hearing to the respondent, an order for his removal was passed. Being
aggrieved, the respondent preferred a contempt petition in the High
Court which was dismissed and the D.B. Special Appeal No.36/94 filed
against the same was also rejected on 04.04.1994.
9. The respondent then filed four writ petitions being SBCWP
Nos.6486/1993; 5651/1994; 5752/1994, and; 846/1995 in the High
Court which were decided by a common judgment dated 22.02.2008,
wherein SBCWP Nos.6486/1993 and 5651/1994 were allowed, while
SBCWP Nos.5752/1994 and 846/1995 were partly allowed, and directions were issued to reconsider the respondent’s case for promotion.
Aggrieved thereby, the appellants preferred D.B. Special Appeal Writs
No.1695/2008, 14/2009, 15/2009 and 65/2009 whereas the respondent
also filed D.B. Special Appeal Writ No.24/2009. The appeal filed by the
respondent was related to his claim for costs. Vide common Final Judgment and Order dated 28.01.2021, all these writ appeals were dis-
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missed, which has given rise to the present four appeals at the instance
of the appellants.
SUBMISSIONS BY THE APPELLANTS:
10. Learned counsel for the appellants submitted that the respondent had a chequered history and proved himself unfit for being retained
in service. It was submitted that even during probation, the respondent
was found unsuitable and was reverted/asked to handover charge to
Mr. Amar Chand Dhaka by order dated 06.05.1977 but he disobeyed
and obstructed him from assuming charge of his office. It was submitted that even earlier, when the Registrar had issued directions to the respondent to consult the PWD for technical opinion with regard to permission for construction of godown of Sadulshahar Jamidara Co-operative Marketing Society Ltd., without doing so, he himself had given
such permission and had even appointed Mr. Dharam Chand and Mr.
Birbal on 04.01.1977 on his own, without permission from the Registrar.
Further, it was submitted that on 18.05.1977, the respondent had issued Order No.995-98 nominating himself as the Administrator of the
Bharat Bus Transport Cooperative Society Ltd. while he was reverted
from that post and charge was taken from him by Mr. Amar Chand
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Dhaka. It was contended that during the said period, the respondent
sold 9 shops at a much lower price than the market price without following the due prescribed procedure. He submitted that on 30.05.1977
also, the respondent made irregular payments and on 21.06.1977, he
embezzled Rs.9025/- by withdrawing the said amount from the account
of the society on the head of expenses of stamps which were recovered
from shopkeepers and the amount was illegally kept with him.
11. Further, it was argued by learned counsel for the appellants that
on 05.07.1977, the respondent prepared a bill of Rs.4,600/- against rent
without obtaining clearance of the Collector and on 06.05.1977, he resumed the post from which he was reverted without authority of law.
Even the said amount of Rs.4,600/- was not paid by the respondent to
the landlord. He submitted that on 21.07.1977, the respondent embezzled Rs.4,000/- by making fake entry of returning deposit of the said
amount to Smt. Ganga Bai in the Cash Book, but kept the amount
without any authority. Similarly, it was submitted that on 25.07.1977, he
received Rs.7,766.83/- and kept it with him, which he returned only at
the time of inspection under compulsion. Further, on 30.07.1977,
learned counsel submitted that the respondent made irregular and
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doubtful entries relating to payments made by him during the period for
which he stood demoted to the post of Inspector. It was submitted that
another glaring example of the respondent committing insubordination
was that despite the order of the Collector, Sh. Ganganagar dated
01.08.1977, directing the respondent to handover charge of Administrator, Hanumangarh Society, he did not handover the cash balance
and other charge till 19.08.1977.
12. Further contention was that the respondent temporarily embezzled an amount of Rs.4,764.36/- of the Bharat Bus Transport Cooperative Society Ltd. and the amount was returned only after the respondent got transferred to Bhilwara. It was submitted that even the
said amount which was due on 18.08.1977 itself was sent by the respondent in the shape of Demand Drafts of Rs.3,000/- on 07.02.1979,
Rs. 764.36/- on 09.02.1979 and Rs.1,000/- on 20.02.1979 i.e., after one
and a half years. He submitted that on 04.10.1978, the respondent took
advance of Rs.2,000/- to purchase material for godown while working
as Administrator of Ravla Sale-purchase Co-operative Society Ltd. but
did not deposit the same and in the meantime, he was transferred to
Bhilwara and upon repeated reminders and correspondence he sent
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the amount under Demand Draft No.738095 on 20.03.1979. Another irregularity pointed out was that the respondent did not take any steps for
new appointment on 28% posts reserved for Scheduled Castes/Scheduled Tribes candidates on the one hand, while on the other hand he appointed one Rajkumar against reserved post on 07.10.1978 as a junior
clerk in violation of the order.
13. Learned counsel submitted that in the background of such conduct, the respondent was placed under suspension in contemplation of
departmental enquiry by order dated 04.10.1979.
14. Learned counsel submitted that on 03.10.1980, a Charge Sheet
under Rule 16 of the 1958 Rules was issued levelling 16 charges
against the respondent, inclusive of sub-charges. During the enquiry,
10 witnesses were examined, who deposed against the respondent,
whereafter, on 05.03.1984 and 04.06.1984, detailed statement(s) of the
respondent was also recorded. The enquiry report was finally submitted
on 19.04.1984. It was contended that, rightly, the DPC in its meeting
held on 21.11.1984 did not find the respondent suitable, on the ground
that he was under suspension at that time. It was submitted that though
on 22.02.1985 the learned Single Judge of the High Court in SBCWP
11
No.590/1983 stayed the operation of the order of suspension dated
04.10.1979 against the appellant, but the same was with prospective
effect and Appeal No.358/85 filed by the respondent for considering his
promotion to the post of Deputy Registrar w.e.f. 23.02.1979 and Joint
Registrar w.e.f. 06.04.1985, was partly allowed with the direction to
convene the DPC for the vacancies for the year 1984-85 to review the
case of the respondent for promotion to the post of Deputy Registrar. In
the meantime, during the departmental proceeding against the respondent, charges were proved and by order dated 25.09.1985, he was
removed from service.
15. It was submitted that though the High Court by order dated
18.12.1991 in Single Bench Civil Writ Petition No.793/1986 quashed
the removal order against the respondent, liberty was granted to the appellants to conduct an enquiry after giving him a copy of the enquiry report and the opinion of the RPSC. In compliance of the said order, in
the departmental proceedings, the respondent submitted his written
representation denying all charges and was also heard on his representation. However, learned counsel submitted that on 11.09.1992, the
DPC found him suitable for 1980-1981 but not for 1979-1980, with the
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recommendation kept under sealed cover in view of the pending departmental enquiry. It was submitted that in Contempt Petition
No.358/1985, preferred by the respondent, by order dated 08.04.1993,
the decision of the DPC was found to be proper.
16. Learned counsel submitted that after following all due procedure
under the law and after affording the respondent full opportunity of being heard, the removal order was passed on 28.09.1993, holding that in
light of the serious nature of the charges and partly/fully five charges
having been found to be proved by the enquiry officer, there were sufficient grounds for punishment. The Contempt Petition filed by the respondent was dismissed and Special Appeal No.36/94 before the Division Bench was also rejected.
17. It was submitted that in this background, when the respondent
filed four writ petitions challenging the removal order dated 28.09.1993,
the High Court quashed the removal order on the ground of violation of
principles of natural justice observing that though there was a reference
to the representation filed by the respondent but there was no discussion in the order. Further, as a consequence, the suspension order was
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also quashed holding the respondent entitled for the remaining salary
from the date of his suspension till the date of fresh removal and stating
that the entire period will also be counted for the purpose of pension.
Moreover, the respondent having been found fit for promotion in 1980-
1981 but denied the same on the ground of pendency of departmental
enquiry by keeping the result in a sealed cover, the suspension as well
as the removal order having been quashed, the respondent was held
entitled for consideration for promotion to the post of Deputy Registrar
in the year 1979-1980 and 1980-1981 and all consequential benefits, in
the event he was so promoted.
18. Learned counsel for the appellants submitted that there has
been gross miscarriage of justice since despite five charges having
been proved documentarily, still, on hyper-technicality, the High Court
interfered. Further, it was contended that the view taken by the authorities cannot be said to be perverse as it was also a plausible view. It was
urged that in such matters, the settled law is that where two views are
possible, the one taken by the authorities ought not to be interfered
with, only because there can be another view. Learned counsel submitted that the act of the respondent stood admitted with regard to his conduct of financial irregularity(ies) and insubordination by not obeying or-
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ders relating to his transfer, other directions given for permission of construction granted to a Cooperative society as also acting beyond jurisdiction of assuming power, both in appointing persons as well as appointing himself as an Administrator of a Co-operative Society. It was
submitted that the Division Bench totally erred in not appreciating the
points, both legal and factual, raised by the appellants. It was further
submitted that the Division Bench erroneously held that the enquiry proceedings were vitiated as they were based on no evidence and were
perverse, which finding, learned counsel contended, was itself perverse, as there were documents to prove the charges, which the respondent had not challenged as being forged and/or fabricated. Hence,
it was prayed that these appeals may be allowed.
SUBMISSIONS BY THE RESPONDENT:
19. Per contra, learned counsel for the respondent submitted that
both the learned Single Judge and the Division Bench have concurrently held that the enquiry was vitiated, and it was a case of no evid-
15
ence. Thus, this Court may also not interfere in the matter. It was submitted that both the learned Single Judge and the Division Bench
found that the charge relating to temporary embezzlement is illegal as
the same was not proved but still he has been found guilty. Moreover, it
was pointed out that though Charge 1-GA is with regard to embezzlement of Rs.9,025/- of the sale of shops, the Appellate Authority had exonerated the respondent and the Enquiry Officer did not find the respondent guilty of the said charge of embezzlement, but found sale of
those shops irregular which was not even the charge.
20. Similarly, it was pointed out that the learned Single Judge on the
issue of competence of the respondent to sell the shop at a lower price
held that despite the finding of the Enquiry Officer that no loss was
proved, still the charge has been found proved, which is improper and
there cannot be any dispute on this account. He submitted that the order of the learned Single Judge, which has been upheld by the Division
Bench, does not require interference. He, therefore, impressed upon us
that the appeals deserved dismissal.
ANALYSIS, REASONING AND CONCLUSION:
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21. Having considered the matter, the Court finds that the Impugned
Judgment cannot be sustained. On a prefatory note, we would begin by
quoting what the Division Bench has noted on page No.7:
‘It is well settled preposition (sic) of law that
courts will not act as an Appellate Court and re-assess
the evidence led in domestic enquiry, nor interfere on
the ground that another view was possible on the
material on record. If the enquiry has been fairly and
properly held and findings are based on evidence, the
question of adequacy of evidence or reliable nature of
the evidence will be no ground for interfering with the
finding in departmental enquiry. However, when the
finding of fact recorded in departmental enquiry is
based on no evidence or where it is clearly perverse
then it will invite the intervention of the court.’
22. The learned Single Judge held that the findings returned in the
enquiry were without evidence, contrary to the record, and as the
Removal Order based on the same was not reasoned, proceeded to
quash the same. This course of action adopted by the learned Single
Judge has been affirmed by the Division Bench. Surprisingly, despite
noticing the aforesaid position in law relating to non-interference by the
Appellate Court to re-assess the evidence led in an enquiry or to
interfere on the ground that another view was possible on the material
on record, the Division Bench went on to record that the learned Single
Judge had rightly held that the enquiry proceedings were vitiated as
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they were based on no evidence and were perverse, without giving any
reasons of its own as to how the learned Single Judge had arrived at
such a conclusion, namely, that the enquiry was based on no evidence
and the findings rendered therein were perverse. Upon detailed
assistance from both sides on the factual prism, coupled with the
materials on record, we are of the considered opinion that the
judgments delivered by the learned Single Judge and the Division
Bench are unsustainable.
23. The scope of examination and interference under Article 226 of
the Constitution of India (hereinafter referred to as the ‘Constitution’) in
a case of the present nature, is no longer res integra. In State of
Andhra Pradesh v S Sree Rama Rao, AIR 1963 SC 1723, a 3-Judge
Bench stated:
‘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
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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.’
(emphasis supplied)
24 The above was reiterated by a Bench of equal strength in State
Bank of India v Ram Lal Bhaskar, (2011) 10 SCC 249. Three learned
Judges of this Court stated as under in State of Andhra Pradesh v
Chitra Venkata Rao, (1975) 2 SCC 557:
‘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 [AIR 1963 SC 1723:
(1964) 3 SCR 25: (1964) 2 LLJ 150]. First, there is no
warrant for the view that in considering whether a
public officer is guilty of misconduct charged against
19
him, the rule followed in criminal trials that 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.
20
xxx
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 [AIR 1964 SC 477: (1964) 5
SCR 64].
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
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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.
xxx
26. For these reasons we are of opinion that the
High Court was wrong in setting aside the dismissal
order by reviewing and reassessing the evidence. The
appeal is accepted. The judgment of the High Court is
set aside. Parties will pay and bear their own costs.’
(emphasis supplied)
25. In State Bank of India v S K Sharma, (1996) 3 SCC 364, two
learned Judges of this Court held:
‘28. The decisions cited above make one thing
clear, viz., principles of natural justice cannot be
reduced to any hard and fast formulae. As said
in Russell v. Duke of Norfolk [(1949) 1 All ER 109: 65
TLR 225] way back in 1949, these principles cannot be
put in a strait-jacket. Their applicability depends upon
the context and the facts and circumstances of each
case. (See Mohinder Singh Gill v. Chief Election
Commr. [(1978) 1 SCC 405: (1978) 2 SCR 272]) The
objective is to ensure a fair hearing, a fair deal, to the
person whose rights are going to be affected.
(See A.K. Roy v. Union of India [(1982) 1 SCC 271:
1982 SCC (Cri) 152] and Swadeshi Cotton
Mills v. Union of India [(1981) 1 SCC 664].) As
pointed out by this Court in A.K. Kraipak v. Union of
India [(1969) 2 SCC 262] , the dividing line between
quasi-judicial function and administrative function
(affecting the rights of a party) has become quite thin
and almost indistinguishable — a fact also emphasised
by House of Lords in Council of Civil Service
Unions v. Minister for the Civil Service [(1984) 3 All
ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL] where
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the principles of natural justice and a fair hearing were
treated as synonymous. Whichever the case, it is from
the standpoint of fair hearing — applying the test of
prejudice, as it may be called — that any and every
complaint of violation of the rule of audi alteram partem
should be examined. Indeed, there may be situations
where observance of the requirement of prior
notice/hearing may defeat the very proceeding —
which may result in grave prejudice to public interest. It
is for this reason that the rule of post-decisional hearing
as a sufficient compliance with natural justice was
evolved in some of the cases, e.g., Liberty Oil
Mills v. Union of India [(1984) 3 SCC 465]. There may
also be cases where the public interest or the interests
of the security of State or other similar considerations
may make it inadvisable to observe the rule of audi
alteram partem altogether [as in the case of situations
contemplated by clauses (b) and (c) of the proviso to
Article 311(2)] or to disclose the material on which a
particular action is being taken. There may indeed be
any number of varying situations which it is not
possible for anyone to foresee. In our respectful
opinion, the principles emerging from the decided
cases can be stated in the following terms in relation to
the disciplinary orders and enquiries: a distinction
ought to be made between violation of the principle of
natural justice, audi alteram partem, as
such and violation of a facet of the said principle. In
other words, distinction is between “no notice”/“no
hearing” and “no adequate hearing” or to put it in
different words, “no opportunity” and
“no adequate opportunity”. To illustrate — take a case
where the person is dismissed from service without
hearing him altogether (as in Ridge v. Baldwin [1964
AC 40: (1963) 2 All ER 66: (1963) 2 WLR 935]). It
would be a case falling under the first category and the
order of dismissal would be invalid — or void, if one
chooses to use that expression (Calvin v. Carr [1980
AC 574: (1979) 2 All ER 440: (1979) 2 WLR 755, PC]).
But where the person is dismissed from service, say,
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without supplying him a copy of the enquiry officer's
report (Managing Director, ECIL v. B.
Karunakar [(1993) 4 SCC 727: 1993 SCC (L&S) 1184:
(1993) 25 ATC 704]) or without affording him a due
opportunity of cross-examining a witness (K.L.
Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] ) it
would be a case falling in the latter category —
violation of a facet of the said rule of natural justice —
in which case, the validity of the order has to be tested
on the touchstone of prejudice, i.e., whether, all in all,
the person concerned did or did not have a fair hearing.
It would not be correct — in the light of the above
decisions to say that for any and every violation of a
facet of natural justice or of a rule incorporating such
facet, the order passed is altogether void and ought to
be set aside without further enquiry. In our opinion, the
approach and test adopted in B. Karunakar [(1993) 4
SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]
should govern all cases where the complaint is not that
there was no hearing (no notice, no opportunity and no
hearing) but one of not affording a proper hearing (i.e.,
adequate or a full hearing) or of violation of a
procedural rule or requirement governing the enquiry;
the complaint should be examined on the touchstone of
prejudice as aforesaid.’
26. In Union of India v K G Soni, (2006) 6 SCC 794, it was opined:
‘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 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 case [Associated
Provincial Picture Houses Ltd. v. Wednesbury
Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] the
24
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 the decision-making process and not
the decision.
15. To put it differently, unless the punishment
imposed by the disciplinary authority or the Appellate
Authority shocks the conscience of the court/tribunal,
there is no scope for interference. Further, to shorten
litigations it may, in exceptional and rare cases, impose
appropriate punishment by recording cogent reasons in
support thereof. In the normal course if the punishment
imposed is shockingly disproportionate, it would be
appropriate to direct the disciplinary authority or the
Appellate Authority to reconsider the penalty imposed.’
(emphasis supplied)
27. The legal position was restated by two learned Judges in State
of Uttar Pradesh v Man Mohan Nath Sinha, (2009) 8 SCC 310:
‘15. The legal position is well settled that the
power of judicial review is not directed against the
decision but is confined to the decision-making
process. The court does not sit in judgment on merits
of the decision. It is not open to the High Court to
reappreciate and reappraise the evidence led before
the inquiry officer and examine the findings recorded by
the inquiry officer as a court of appeal and reach its
own conclusions. In the instant case, the High Court fell
into grave error in scanning the evidence as if it was a
court of appeal. The approach of the High Court in
consideration of the matter suffers from manifest error
and, in our thoughtful consideration, the matter requires
fresh consideration by the High Court in accordance
with law. On this short ground, we send the matter back
to the High Court.’
25
28. Turning our gaze back to the facts herein, we find that the
learned Single Judge and the Division Bench acted as Courts of Appeal
and went on to re-appreciate the evidence, which the aboveenumerated authorities caution against. The present coram, in Bharti
Airtel Limited v A S Raghavendra, (2024) 6 SCC 418, has laid down:
‘29. As regards the power of the High Court to
reappraise the facts, it cannot be said that the same is
completely impermissible under Articles 226 and 227 of
the Constitution. However, there must be a level of
infirmity greater than ordinary in a tribunal's order,
which is facing judicial scrutiny before the High Court,
to justify interference. We do not think such a situation
prevailed in the present facts. Further, the ratio of the
judgments relied upon by the respondent in support of
his contentions, would not apply in the facts at hand.’
(emphasis supplied)
29. Evidently, while reappraisal of facts and evidence is not
impermissible by the High Court, the infirmity in the underlying order
has to be greater than ordinary. It is not the respondent’s case that due
to omissions by the appellants in substantive and/or procedural
compliances, prejudice has ensued to him. Let us examine the aspect
independently too. The facts reveal that an earlier removal order was
quashed, and a copy of the Enquiry Report alongwith the RPSC’s
opinion was supplied to the respondent. The respondent, thereafter,
received an opportunity to submit a written representation, which he
26
availed of. Further, he was afforded an opportunity of hearing as well. In
this view, we are unable to find any violation of the principles of natural
justice.
30. Before the Enquiry Officer, 13 witnesses and 75 documents were
exhibited on behalf of the Authority. 3 witnesses deposed in defence of
the delinquent employee-respondent. Considering the evidence on
record, the Enquiry Officer by his report held certain charges levelled
against the respondent to have been proved in full/part. Subsequently,
a fresh Removal Order was passed, agreeing with the conclusions
drawn by the enquiry officer. This Removal Order cannot be said to be
based on ‘no evidence’. On perusal thereof, we find that the Removal
Order is reasoned as on the aspects where the Disciplinary Authority
disagreed with the Enquiry Officer’s report, reasons therefor have been
assigned. On the areas of agreement, the Removal Order bears
discussion on the relevant evidence.
31. It is well-settled that if the Disciplinary Authority accepts findings
recorded by the Enquiry Officer and proceeds to impose punishment
basis the same, no elaborate reasons are required, as explained by
27
three learned Judges of this Court vide Boloram Bordoloi v Lakhimi
Gaolia Bank, (2021) 3 SCC 806:
‘11. ... Further, it is well settled that if the
disciplinary authority accepts the findings recorded by
the enquiry officer and passes an order, no detailed
reasons are required to be recorded in the order
imposing punishment. The punishment is imposed
based on the findings recorded in the enquiry report, as
such, no further elaborate reasons are required to be
given by the disciplinary authority. …’
32. The Removal Order makes it clear that the Disciplinary Authority
has considered the whole material before it and was satisfied to impose
punishment on the respondent.
33. The observation on page 7 by the Division Bench makes it
apparent that it was conscious of the proposition of law but still tried to
make a distinction, which we do not find just and proper. It runs
contrary to the record. Though arguments have been addressed by the
appellants with regard to each and every charge, we would not go
individually into the same as we are not re-appreciating the evidence.
Suffice it would be to say that broadly, the charges were proved based
on the factual position, which, in turn, was based on official
documentation, which at no point of time, the respondent has
28
controverted or denied. The respondent has not alleged that the
documents were non-existent/false/fabricated.
34. The learned Single Judge had also reasoned that there was no
difference between the earlier order of removal and the Removal Order
passed subsequently. The learned Single Judge was of the view that
simple reference to the respondent’s representation had been made,
but without discussion thereon, as such, the Removal Order was
passed mechanically and without reasons. Even though this ground has
not been taken by the respondent qua the Impugned Judgment, we
deem it fit to deal therewith. Upon a comparative overview of both the
orders of removal, the similarities between the two are inescapable.
35. Having said so, we may point out that the respondentemployee’s representation has been considered in the fresh Removal
Order, albeit not in as many words. Going forward, wherever and
whenever the Disciplinary Authorities concerned impose a major
punishment, it will be appropriate for their orders to better engage with
the representations/submissions of the delinquent employees
concerned. However, in the instant case, in view of the evidentiary
material and the process by which a fair opportunity was given to the
29
respondent to present his version, we are dissuaded from upholding the
Impugned Judgment on account of minor deficiency/ies in the process.
As noted hereinbefore, the same have not caused prejudice to the
respondent to the extent warranting judicial interdiction.
36. At this juncture, it would be relevant to point out that on a
specific query to the learned counsel for the respondent apropos the
charges pertaining to non-handing over of full charge at the relevant
point of time; appointing persons without permission from the
Collector/Registrar; as also, returning the money after one and a half
years by the respondent, learned counsel could not controvert the
factual position and only relied upon the judgment rendered by the
learned Single Judge and the Impugned Judgment. Moreover, looking
to the respondent’s conduct, we do not find any arbitrariness or
perversity in the punishment awarded to him.
37. Accordingly, for the reasons recorded above, the Impugned
Judgment is quashed and set aside, and the Removal Order dated
28.09.1993 passed by the Disciplinary Authority is restored.
Consequences in law to follow. However, by way of extraordinary
indulgence, keeping in mind the fact that the respondent has retired
30
and is aged, payments, if any, already made to him in the interregnum,
shall not be recovered by the appellants. The appeals are disposed of
in the above terms. No order as to costs.
………………..........................J.
[HIMA KOHLI]
…………………..................…..J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
AUGUST 08, 2024
