G. Sanjeev vs The Union Of India

“(i)

Quash the order issued on F.No. 13011/11/2015/D(Vig-M&B)/250 dt. 08.03.2022 issued by the Respondent at Annexure: A8 with all the consequential benefits, in the interest of justice. and,

(ii)

Grant such other relief(s) to the applicant as this Hon’ble Tribunal deems fit to grant in the facts and circumstances of the case, in the interest of justice.”

“(i)

That, the Applicant has not committed the misconduct alleged in the memorandum of charge at Annexure: A-1 and hence, the impugned order at Annexure: A-8 is unjust and unsustainable in law.

(ii)

The impugned order of penalty suffers from arbitrariness in as much as the relevant facts have not been appreciated properly, due to non application of mind by the Respondent.

(iii)

The Applicant is innocent and has discharged his part of duties honestly, diligently and to the best of his knowledge.

(iv)

No allegation of malice, corruption or culpable negligence has been made against the Applicant in the Memorandum of charge at Annexure: A-1.

(v)

None of the ingredients constituting the misconduct has been established against the Applicant still the Applicant has been unjustly punished.

(vi)

There is no iota of evidence placed in the inquiry, finding Applicant as guilty. There is no iota of ingredients constituting misconduct as to the job which Applicant has discharged. Despite the Applicant has not committed any misconduct, he has been punished unjustly by the Respondent by non-application of mind to the entire circumstances of the case.

(vii)

Before imposing any punishment, the Respondent is expected to apply his mind fully to the entire facts and circumstances of the case in addition to the below mentioned attributes to the “misconduct” judicially & universally accepted. According to the Applicant, the Respondent has punished the Applicant arbitrarily, though the Applicant has not committed any misconduct.

“ Misconduct. A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in charecter, improper or wrong behavior, its synonyms are mis-demeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Term “misconduct” when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods. People v. Sigal, 249 C.A.2d 299, 57 Cal. Rptr. 541, 549. renders Misconduct, which discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer’s interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Wilson v. Brown, La.App., 147 So.2d 27, 29. See also Wanton misconduct.” [Black’s Law Dictionary-5th Edition].

(viii)

That, the impugned order dated 08.03.2022 at Annexure: A-8 is against the acceptable evidence placed on record and the said order is based on surmises and conjectures and hence arbitrary due to non-application of mind to the facts and circumstances of the case and hence, unsustainable in law. That the decisions taken by the Respondent are unsustainable in law, if one examines the evidence on record dispassionately.

(ix)

The I.O. has come to a perfect finding of facts. In respect of IV-Article of charge, his finding of facts is correct, but his decision that the charges are partly proved on the basis of mere placement of false and fabricated test certificates submitted by the Contractor is fallacious in absence of finding that the Applicant was aware of these test certificates as false & fabricated and still placed them on record. There was no chance on the part of the Applicant to doubt the genuineness of these certificates, since result recorded in these certificates matched with the test conducted in the field lab which was in-charge of AGE (I) working under the direct control & command of the Chief Engineer (AF).

(x)

Impugned order is arbitrary and is a no-speaking order and hence unsustainable in law.”

“ The Applicant was issued with a Memorandum of charges dated 09.02.2018 U/R 14 of the CCS (CCA) Rules, 1965 the Respondent (vide Annexure: A-1). The Applicant denies the charges by a reply dated 05.04.2018 (vide Annexure: A-2). I.O. after holding inquiry submits his report dated 07.12.2019 in two parts to the Respondent holding that the Articles of charges I, II & III are not proved and that the IV-Article of charges proved partly (vide Annexures: A-4 & A-5). Infact certain alleged facts are proved and the proved facts do not constitute commission of misconduct. The Respondent asks the Applicant to submit his representation by enclosing a disagreement note by a letter dated 13.09.2021 (vide Annexure: A-6). The Applicant submits his representation to the disagreement note by a letter dated 25.11.2021 (vide Annexure: A-7). The Respondent imposes penalty on the Applicant by an order dated 08.03.2022 (vide Annexure: A-8). The Applicant being aggrieved the said unjust order of penalty has filed the present O.A.

LIST OF DATES

09.02.2018	(i) Respondent issues Memorandum U/R 14 of the CCS (CCA) Rules, 1965 against the applicant frame in four Articles of Charges. (ii) Respondent orders to hold common disciplinary proceedings against 6 officers including the applicant.
05.04.2018	Applicant denies the alleged charges.
07.12.2019	I.O. submits his report in 2 parts to the Respondent.
13.09.2021	Respondent issues letter enclosing disagreement note seeking representation of the applicant, if any, on the disagreement note.
25.11.2021	Applicant submits his response to the disagreement note to the Respondent.
08.03.2022	The Respondent impose penalty on the applicant arbitrarily.

“5.

It should be the endeavour to ensure that executives deployed for the airfield works should have executed runway works before. Under no circumstances will work commence unless above requirement is fulfilled. All executives (GEs/AGEs/JEs) executive the runway construction/resurfacing works for the first time will visit at least one of the runway works in progress and also SEM Wing, CME for training.”

Answer for Q.No.1 (a) & (c) There is no correction/overwriting done by me in the column of “Quantity brought at site”, “Total (Cumulative) quantity brought at site” and “consumption in bags”. Last entry done by me is on 16 June 2010.

Answer for Q.No.1 (b) These arithmetical corrections would have been done by E-8 staff during technical check as confirmed by State witness MR. V K Mohanan in answer to question No. 2 of Daily Order Sheet No. 21 dated 29 June 2019 and answer to question No. 3 of Daily Order Sheet No. 23 dated 02 July 2019.

“3.

Instances have also come to notice where, though the decisions in Disciplinary / Appellate cases were taken by the competent Disciplinary /Appellate Authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the Disciplinary/Appellate / Reviewing Authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is therefore, essential that the decision taken by such authorities are communicated by the Competent Authority under their own signatures, and the order as issued should comply with the legal requirements as indicated in the preceding paragraphs. It is only in those cases where the President is the prescribed Disciplinary / Appellate / Reviewing Authority and where the Minister Discerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorized to authenticate orders in the name of the President.”

“ The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

“…….In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-"Law of the Constitution"-Tenth Edn., Introduction ex). "Law has reached its finest moments", stated Douglas, J. United States v. Wunderlick (1), "when it has freed man from he unlimited discretion of some ruler........ Where discretion; absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (2), "means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful." …..”

“19.

…….From a positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if is affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment." This view was approved by the Constitution Bench in Ajay Hasia case It thus appears well-settled that Art. 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of protection by law. The Constitution Bench pertinently observed in Ajay Hasia's case and put the matter beyond controversy when it said 'wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.' This view was further elaborated and affirmed in D.S. Nakara v. Union of India. In Maneka Gandhi v. Union of India it was observed that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Art. 14……

22.

Rule 4 bears the heading 'General'. Rule 5 bears in the heading 'misconduct'. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decrous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt ' to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area hot amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflages as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in M/s Glaxo Laboratories (I) Ltd. v. Presiding officer, Labour Court, Meerut & Others where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing or is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.' Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per as a misconduct in the sub-clauses of Rule 5 which specifies misconduct. It would therefore appear that even if the facts alleged in two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct.”

“10.

Having carefully gone through the entire judgment in the case of Kalra (supra) and applying the same in the facts of the instant case, I am unable to accept the contention of Mr. Chakraborthy. The observation of the Supreme Court in the case of Kalra (supra) that where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and, if necessary, define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct, is one of general application for, if that is not so done, a public servant may be exposed to vagaries of subjective evaluation as pointed out by the Supreme Court in that case. That the Bank is also conscious of the above proposition is evident from the fact that after framing Regulation 3 under the heading 'General', it has in Regulations 4 to 23, specified with precision and accuracy,duties and obligations of its officers, breach of which will amount to a misconduct under Regulation 24. From a careful perusal of the Regulations 4 to 23, it is evident that for breach of any of them, an inference can be legitimately drawn that an officer has not taken all possible steps to ensure and protect the interests of the Bank and/or has not discharged his duties with utmost integrity, honesty, devotion and diligence and/or had done something, which is unbecoming of a Bank Officer and thereby has committed a breach of Regulation 3(1) also For example; Regulation 4, which comes under the heading "Observance of Secrecy' provides, inter alia, that every Bank Officer shall maintain strictest secrecy regarding the Bank's affairs and, therefore, needless to say, breach of the above Regulation amounts to breach of all the three norms laid down under Regulation 3(1). To cite another example: Regulation 12 comes under the heading "Seeking to influence" and it says that no officer shall try to influence either politically or otherwise his superiors to further his own interest in respect of matter pertaining to his service under the Bank. By committing breach of the above provision, it can be certainly said that the concerned Officer has not acted with utmost integrity and/ or has displayed a conduct unbecoming of a Bank Officer, in two of the norms laid down in Regulation 3(1).

11.

From the above discussion, it follows therefore, that if Regulation 3(1) has to be treated as an independent provision, breach of which will amount to a 'misconduct' by the deeming provision of Regulation 24, there was no need to frame Regulations 4 to 23. That apart, if read in isolation, the above Regulation will suffer from the indefensible attack of laying down certain norms without laying down any objective criteria for its assessment or evaluation. I am, therefore, of the opinion that when Regulation 24 says "a breach of any of the provisions of these Regulations shall be deemed to constitute misconduct", it does not and cannot mean and include Regulation 3(1), and for that matter, any other clause of Regulation 3. In forming this opinion, I have drawn sustenance from, apart from the foregoing discussion, the nature of the contents of Clauses (2) and (3) of the Regulation 3, which have been earlier quoted. As has been noticed, Clause (3) of Regulation 3, asks the officer to act according to his best judgment except when acting under the direction of his official superior. Now, can an officer be said to have violated the above Regulation and thereby committed a 'misconduct' if the Disciplinary Authority in its 'judgment' feels that the concerned officer has made an error in his 'judgment'? The answer must be an emphatic no, for an error of judgment cannot be culpable.

12.

In my view any other interpretation would mean that an officer of the Bank may be departmentally proceeded against on the ground that he had acted in a manner unbecoming of a Bank Officer for dishonour of cheque issued by him in liquidation of personal debts, if the Disciplinary Authority feels that such a conduct of the concerned officer belies its moral and ethical expectation. Such an assessment would be purely subjective and would vary with individuals. While on this point, a reference, by way of illustration, may be made to Regulation 6(1) of the Conduct Regulations, which provides that no officer shall, except with the previous sanction of the Bank engage directly or indirectly in any trade or business or undertake other employment. Breach of the Regulation can be proved by objective standards only and there is no scope of subjective evaluation in deciding the same. It is of course true that if wilful dis-obediene of a lawful order amounts to misconduct, it can be objectively evaluated and assessed but then the authority concerned has not taken recourse to, nor referred to, any Regulation to indicate that it is a misconduct.”

“16.

'Misconduct' and 'negligence' are two different notions. According to Aiyer's Law of Lexicon, 'misconduct' implies a wrongful intention and not a mere error of justice. According to Stroud's Judicial Dictionary, 'misconduct' means misconduct arising from ill-motive. Act of negligence, error of judgment or innocent mistake, does not constitute such 'misconduct: The Supreme Court in Union of India v. J. Ahmed (AIR 1979 SC 1022: (1979 Lab IC 792) held that:-

"Lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high."

The Apex Court further held that:-

“ Gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.”

17.

In: M. Krishna Swami v. Union of India (JT 1992 (5) SC 92) the Supreme Court held that :-

“ Misconduct is said to be a vague and relative term. Literally it means a wrong conduct or improper conduct. It has to be construed with reference to the subject matter and the context wherein the term used having regard to the scope of the Act and the statute.”

The Apex Court further held that :-

" Every act or conduct or even error of judgment on negligent acts by higher judiciary per se does no amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the doer. Even administrative action or omissions too need accompaniment of mens rea."

18.

'Misconduct' is a violation of definite law, a forbidden act and it differs from carelessness or negligence. The expression 'misconduct' covers a large area of human conduct and the term has to be construed with reference to the subject and context in which it is used. Regulation 5 of the Regulations, 1962 provides that the punishment enumerated in the Regulations can be imposed for good and sufficient reasons to be recorded. The expression "good and sufficient reasons" used in this regulation clearly shows that each and every error does not constitute the ground for imposition of the punishment. The expression "good and sufficient reason" has to be read in a reasonable manner, for otherwise the words will become too vague and bereft of the guidelines. To fall within the scope of Regulation 5 the mere error of judgment or a bona fide mistake does not furnish a ground for punishment to be imposed. Error of judgment cannot be eliminated in all human affairs. Negligence in the performance of duty, error of judgment and an innocent mistake will not constitute misconduct unless it is actuated by ill-motive and a wilful act. A wilful and intentional disobedience of the instruction of the superior authority will amount to misconduct. If the decision taken by the officer reflects that it has been taken with ulterior corrupt motive then it will, also, constitute 'misconduct'. To fall within the definition of the 'misconduct' while doing something the doer must know that he is wrong. An inadvertent violation of certain instructions of the superiors without any ulterior motive, would not amount to 'misconduct' for which the penalty can be imposed unless the conduct is a calculated attempt to defy the order passed by the superiors or to violate the instructions.”

“12.

It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:

"11.

Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

" Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]

“15.

In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.

16.

The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17.

If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.

18.

Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

19.

In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

20.

In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.”

“13.

While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".”

“8.

The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.”

“27.

Now, in this state of the evidence, how can it be said that respondent even attempted to offer a bribe to Mr. Rajagopalan. Mr. Rajagopalan makes a definite statement that respondent did not offer him a bribe. He merely refers to the fact that respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee note double folded. Undoubtedly, Mr. Rajagopalan suspected the respondent's conduct, and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr. Rajagopalan is a straightforward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned AttorneyGeneral, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this connection and only incidentally that it may be relevant to add that the U.P.S.C. considered the matter twice and came to the firm decision that the main charge against the respondent had not been established.”

“20.

So far as charge no.6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the learned Single Judge has appreciated the evidence of all the witnesses examined in this regard and came to the conclusion that not a single person had deposed before the Enquiry Officer that the respondent employee had asked any person to pay 1% commission for making payment of their allowances. It was based on hearsay statements. All the witnesses stated that this could be the motive/reason for not making the payment.

21.

Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the concerned employee. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.”

“7.

…..Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Sh.R.A.Vashist, Ex. CVI/N.Rly., New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ex.P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct…….”

“ I fully appreciate the anxiety on the part of the Chairman of the Maharashtra Public Service Commission to root out corruption from his office but one should bear in mind that in carrying out such purpose a mere suspicion should not be allowed to take the place of proof even in the domestic enquiry.”

“14.

Indisputably, a departmental proceeding is a quasi-judicial proceeding. The Enquiry Officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

21.

Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC 88, this Court held:

"....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."”

“12.

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.

13.

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.

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 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.”

“The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986. The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.

Per Ramaswamy and Jeevan Reddy, JJ

Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.”

“In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.”

Conclusions

Findings of Authorities on various Charges:-

“5.

MES-604478 Shri G. Sanjeev, then JE (Civ):

Article-I

A. Tentative reasons of disagreement with the findings of Inquiry Authority were on following aspects:

(i)

Mismatch between quantity of cement as per Invoices' and Bitumen & Cement Consumption Register (BCCR).

(ii)

Shri G Sanjeev initialed/endorsed 215 invoices out of a total of 303 invoices, showing procurement of Cement purportedly from M/s Madras Cements Ltd., without physically verifying the consignments brought to site and put up the same to the Engineer-in-Charge, for his verification and defacing of the same, whereby facilitating the contractor.

(iii)

Causing wrongful gain to the contractor.

B. Brief of Defence of Shri G Sanjeev on disagreement note (Pg.668/c):

(i)

On the issue of entries in BCCR without any reference of invoices/MB entries, Shri Sanjeev has stated that he had entered the invoices of cement lots in Bitumen & Cement Consumption Register (BCCR) from Sl No. 01 to 349 and 349 to 473 mentioning lot numbers in column 3. The same lot numbers alongwith invoice number, date and quantity are reflected in MB No. 759 and Cement Supply and Acceptance Register.

Further, on the issue of 17600 bags entered in MB without mentioning invoice numbers, Shri Sanjeev has stated that he had entered the invoices of cement lots in MB No. 759 along with lot number, invoice number, date and quantity as per normal practice. A table in this regard is placed at Pg. 668/с.

On the issue of 12600 bags of cement not entered in MB but invoices are available, Shri Sanjeev stated that he had entered the invoices of cement lots in MB No. 759 alongwith lot number, invoice number, date and quantity for Lot 01 to 16 only and later on other JEs have entered the balance Cement voucher invoices.

(ii)

On the issue of endorsing of invoices without physical verification at site, Shri Sanjeev has stated that State witness No. 02 in his statement Exhibit S34A, states that "I identify the initials of respective JEs who had physically verified the materials as mentioned therein, which were brought to me" proves the fact that cement stock were physically checked at site by myself. On the issue of mismatch Shri Sanjeev has stated that when Presenting Officer (having more than 30 years) of experience makes wrong entry in his written brief (08 out of 23) and the same has also been acknowledge by the Inquiry Officer, than I as a fresher JE at the time of incident has mismatched (01 out of 92) which is ignorable mismatch and which was unintentional.

(iii)

On the issue of causing wrongful gain to contractor, Shri G Sanjeev has stated that on one hand Disciplinary Authority has agreed with the findings of IO that verification of purchase vouchers fall in the jurisdiction of Engineer-in-Charge and on the other hand DA stating the failure to ensure verification of invoices has caused wrongful gain to the contractor, is not agreed to.

C. View of Authority on Article-I:

On the first point of disagreement, Shri Sanjeev has simply stated that he had entered invoice reference in BCCR, however, he could not provide any documents in this regard. On the issue of 17600 bag of cement entered in MB without mentioning invoice references, he provided a table of cement bags entered by him. However, on the Appendix A1 of Annexure-I of the disagreement note (Pg. 626/c) which states the details of cement which were entered in MB but not available in list of invoices, he has not given any clarification. Therefore, Shri G Sanjeev is certainly responsible of not maintaining proper entries in BCCR and MB.

Further, on the issue of physical verification of cement stock at site, E-in-C Branch has also stated that as on date it is not exactly possible to prove that Shri G Sanjeev has signed the invoices after checking the stock at site or not. Therefore, this point of charge is not sustainable against Shri G Sanjeev.

On the issue of causing wrongful gain to contractor, it is submitted that verification of purchase voucher is fall under jurisdiction of Engineer-in-charge i.e Shri R Ramalingam. E-in-C Branch has stated that Shri G Sanjeev has failed to advice his Engineer-in-charge for verification of purchase vouchers, therefore he is responsible for this lapse. Though the verification of purchase vouchers does not falls under the charter of duties of JE but being an officer in same channel he cannot simply ignore the shortcomings occurred within same project. In view of the above, Article-I of charge against Shri G Sanjeev, then JE is "Partially proved".

Article-II

A. Tentative reasons of disagreement by the Disciplinary Authority on Article-II (pg.631/c):

On the Article-II of charge, 01 out of 04 point determined by the IO is disagreed and same is as follows:

(i)

Shri G Sanjeev was colluded with the contractor since he did not get the vouchers of bitumen verified from the manufacturer: The fact that invoices are fake/fabricated indicates that concerned parties i.e. seller as well as buyer have done tax evasion and may have supplied low/inferior quality of Bitumen and got benefited from it. Otherwise, there was no requirement of submitting fake invoices. So even if CO may not be hand in gloves with the contractor, but his failure to ensure verification of invoices has caused financial gain to the contractor and corresponding loss to state by way of saving of taxes/lower quality of supplied Bitumen.

On the abovementioned point Disciplinary Authority tentatively disagrees with the findings of IO. Since, 01 out of 04 points determined by the IO is disagreed, the Article-II of charge appears to be 'Partially Proved' against the Charged Officer.

B. Brief of Defence of Shri G Sanjeev on disagreement note on Article-II (Pg. 665/c):

On this point of disagreement, Shri G Sanjeev has stated that it is seen that DA agrees with 3 out of 4 IO's point of determination which all are based on charter of duties. But DA stating the failure to ensure verification of invoices of bitumen is contrary and not understood and also not agreed for the reasons below:

(i)

Nothing has been mentioned in the contract agreement regarding verification of Bitumen.

(ii)

Verification of purchase, vouchers is not assigned to JE, neither the responsibility of JE as per RMES Table M.

C. View of Authority on Article-II:

It this regard it is submitted that for the point of verification of purchase vouchers, it has been agreed that the same is not the responsibility of JE. It has also been agreed that in Contract Agreement there was no provision related to verification of Bitumen. Since, we have agreed with the findings of IO on other points of Bitumen because of no mention in Contract Agreement regarding provisions for Bitumen, we may also exempt Shri G Sanjeev from the charge of causing wrongful gain to the contractor by not getting the Bitumen vouchers verified from the manufacturer. Therefore, it is proposed that we may Agree with the findings of IO that Article-II of charge as "Not Proved".

Article-III

A. Tentative reasons of disagreement by the Disciplinary Authority on Article-III (pg.630/c)

On this article of charge, the Disciplinary Authority tentatively disagrees with the finding of 10 on the following reason:

(i)

Shri G Sanjeev, may not be aware about the subletting of the contract by M/s BR Arora & Associates Pvt Ltd to M/s JKS Construction Pvt Ltd, but he has failed to take suitable follow up action with his GE/Engineer-in-Charge at these occasions as given below:-

(a)

When he has observed that the most of T&P mentions M/s JKS Construction Pvt Ltd, he should have asked documents related to T&P including ownership/rental documents.

(b)

At the time of initiation of DO vide GE (AF) Sulur letter No. 8486/423/E8 dated 05.05.2010, the purchase order dated 11.12.2009 of M/s BR Arora & Asso (page 12/14, S-72, State Documents, Annexure-II) which was initialed by Shri G Sanjeev for defacing the same by Shri R Ramalingam, stipulates as "since we have given the work to M/s JKS Construction Pvt Ltd is back to back basis, the payment will be made by M/s JKS Construction Pvt Ltd". So at that time he should have taken up the matter with M/s BR Arora & Asso/GE (AF) Sulur to get the matter clarified. Since Shri G Sanjeev has failed to take any action on these two occasions, he is responsible for ignoring the letters/not taking requisite action i.e. relationship between M/s BR Arora & Asso and M/s JKS Construction. Hence, this shows that Shri G Sanjeev, has failed to carry out his duties meticulously with full dedication and devotion. In view of the above, Article-III of charge against CO appears to be Partially Proved.

B. Brief of Defence of Shri G Sanjeev on disagreement note on Article-III (Pg. 664/c):

On this point of disagreement Shri G Sanjeev has stated the following:

(i)

I have not given any statement stating that I have observed that the most of the T&P mentions M/s JK Construction Pvt Ltd.

(ii)

CA permits MoU for Plants/equipments. Contractor has to provide T&P as per contract agreement. In CA, we generally specify list of T&P which should be owned by the contractor.T&P other than that may be hired by the contractor.

(iii)

The CA clause does not mention that the registration of the vehicle should be in the name of M/s BR Arora & Associates.

(iv)

During execution of project, number of inspection/site visits were carried out by Senior Officers like CE, CWE.

(v)

Technical Examination by team of STE office was carried out during execution of the work and no points are outstanding.

(vi)

Regarding initiation of DO (Exhibit S-72 Sheet 1/14 to 11/14), I have not initialed or signed in this documents. Exhibit S-72, Sheet 13/14, this document is purely private correspondence between the contractor and third party and no copy is addressed to the department.

C. View of Authority on Article-III: Shri G Sanjeev has misconstrued the disagreement that he has made any statement that he has observed that the most of the T&P mentions M/s JK Construction Pvt Ltd. Rather, as a JE he is ought to observe such activities and report to higher authorities. Further, regarding initiation of DO (Exhibit S-72), Shri G Sanjeev has selectively quoted the Sheet No. 1/14 to 11/14 of Exhibit S-72, while he has not talked about Sheet No. 12/14 of Exhibit S-72 in which he has actually initialed (S-72, Link Folder-V). Therefore, it is well established that Shri G Sanjeev was aware of said DO letter and he ignored the subletting. Hence, this shows that Shri G Sanjeev, has failed to carry out his duties meticulously with full dedication and devotion. In view of the above, it is proposed that the Article-III of charge against Shri G Sanjeev, then JE, stands "Partially Proved”.”

“The President was under no legal obligation to record reasons in rejecting the respondent's representation against the adverse remarks. Consequently, the order of the president was not vitiated in law. The Central Administrative Tribunal committed error in quashing the order of the president as well as the order of the Ministry of Commerce dated 6.1.1986. Assuming that there was some defect in the order rejecting the respondent's representation, the Tribunal was not justified in holding that the adverse entries awarded to the respondent should be treated as having been expunged. We accordingly allow the appeal, set aside the order of the Tribunal dated 27.7.1987. There will be no order as to costs.”

“7.

……..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. As the departmental appeal was considered by the Board of Directors in the meeting held on 10.12.2005, the Board’s decision is communicated vide order dated 21.12.2005 in Ref. No.LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that orders impugned are devoid of reasons.”

ORDER