Chandu Venkateswarlu v. Union of India

(x) Thereafter, Second Stage Advice from the CVC was sought. On 29.01.2007, the CVC rendered its advice in the matter to the effect that there ought to be imposition of Major Penalty upon the Petitioner. Consequently, on 13.04.2007 vídé Memorandum No.221/11/2002-AVD-II, the Petitioner was supplied with a copy of the Enquiry Report dated 29.05.2006 along with a copy of the Second (2nd ) Stage Advice of the CVC dated 29.01.2007. The Petitioner submitted his Representation dated 21.05.2007 in response to the same. Thereafter, the matter was again referred to the CVC to reconsider the matter on the ground that the Notings by the CBI (dated 14.12.2007, 07.03.2008, and 12.03.2008) found that the charges against the Petitioner were unsubstantiated; and, that there were specific instances in the Enquiry Report demonstrating that the Enquiry Officer had proceeded merely on assumptions and conjectures. However, by way of its advice dated 16.05.2008, the CVC reiterated its earlier advice (Second Stage Advice dated 29.01.2007), and the matter was therefore referred to the Union Public Service Commission (UPSC) for Statutory Advice. Vídé its advice dated 18.03.2009, the UPSC also concurred with the findings of the Enquiry Officer and the CVC. Consequent thereupon, the Disciplinary Authority vídé its order dated 22.02.2010, imposed the penalty of compulsory retirement on the Petitioner.

(xi) The Petitioner challenged the said penalty order dated

22.02.2010 passed by the Disciplinary Authority, by way of the O.A. No.2566 of 2010 before the learned Tribunal. The learned Tribunal vídé its order dated 19.12.2011 allowed the said O.A. and set aside the Penalty order dated 22.02.2010 on the ground that there had been a violation of the principles of natural justice. The learned Tribunal also remanded back the matter to the Disciplinary Authority to cure the defects in the Enquiry occurring from the stage of receipt of the UPSC Advice dated 18.03.2009. The learned Tribunal also directed the Disciplinary Authority to hear the Petitioner and decide the matter afresh without being biased by its earlier decision.

(xii) Thereafter, in view of the order dated 19.12.2011 passed by the learned Tribunal in O.A. No.2566 of 2010, the Petitioner was supplied with a copy of the UPSC Advice. In response to the same, the Petitioner filed a detailed representation dated 06.06.2012. Subsequently, vídé its order dated 19.12.2012, the Disciplinary Authority again imposed the penalty of compulsory retirement on the Petitioner.

(xiii) The Petitioner thus was once again constrained to institute O.A. No.192 of 2013 before the learned Tribunal, impugning the order dated 19.12.2012, passed by the Disciplinary Authority. The learned Tribunal has vídé its impugned order dated 17.02.2014 rejected the said O.A. and accordingly upheld the order dated 19.12.2012 passed by the Disciplinary Authority imposing penalty of compulsory retirement on the Petitioner.

3. A perusal of the order dated 17.02.2014 passed by the learned Tribunal in O.A. No.192 of 2013 would reveal that the learned Tribunal found that there had been no violation of the principles of natural justice; and that the procedural deficiency of non-supply of the CVC’s Second Stage Advice was cured in pursuance to the order dated 19.12.2011 passed by the learned Tribunal in O.A. No.2566 of

2010. It was further found by the learned Tribunal that the Rules of the CCS (CCA) have been complied with, and that it cannot be said that the Disciplinary Authority did not apply its own independent mind and acted merely on the dictation of the CVC/UPSC. In this regard, whilst placing reliance on the decision of the Hon’ble supreme Court in Ram Kumar v. State of Haryana, reported as 1986 (Supp) SCC 582, it was observed by the learned Tribunal that, since the Disciplinary Authority concurred with the decision of the Enquiry Officer, it was not necessary for the former to either repeat and record reasons in its order; or to discuss the evidence again to arrive at the same findings. Lastly, the learned Tribunal observed that it could not go into the proportionality of the penalty since this was not a case where there was no evidence, and that, in fact, all procedural requirements were fulfilled therein.

4. Aggrieved by the impugned order dated 17.02.2014, passed by the learned Tribunal in O.A. No.192 of 2013; whereby order dated 19.12.2012 passed by the Disciplinary Authority was upheld, the Petitioner has approached this Court seeking the following reliefs: “ (i) Issue a writ of certiorari or any other appropriate writ/ order/direction for quashing/setting aside the impugned Order dated 17.02.2014 passed by the Ld. CAT (PB) New Delhi in OA No. 192/2013;

(ii) Issue a writ of certiorari or any other appropriate writ/ order/direction to grant to the petitioner all consequential benefits arising from the setting aside the order of punishment along with all consequential benefits like reinstatement in service with accrued back wages, promotions from back date etc.;

(iii) Direct the respondents to produce the complete records and file pertaining to the present case;

(iv) Direct the respondents to pay the cost of the present proceeding to the petitioner;

(v) Pass any other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

5. At the outset it is observed that admittedly, there were only three charges framed against the Petitioner by the Respondents. Firstly, that he accepted undue hospitality of the NGO, whose investigation he was entrusted with; Secondly, that a bill of the hotel the Petitioner stayed at, was signed by one of the Directors of the said NGO; and, thirdly, that he got a hotel bill made, jointly, in his name as well as the name of the Constable who accompanied him during the tour for investigation, in order to claim fraudulently from the Government and hide his stay at the other hotel where he allegedly accepted hospitality of the party being investigated (the NGO).

6. It is the case of the Petitioner that he has had an immaculate record of service throughout his entire career in the CBI and that the same would be clearly demonstrated an established through his ACRs. Further, it is the case of the Petitioner that whilst he was posted in the Economic Offences Wing of the CBI at Chennai, he was entrusted with an investigation against the NGO, in relation to an alleged misappropriation of foreign donation. During the course of the investigation, the Petitioner had visited Vishakhapatnam between 23.05.2001 to 26.05.2001. The Petitioner stayed at Hotel Dolphin and the stay was arranged for by the Petitioner’s wife’s uncle (Mr. P. Rambabu). The stay of Constable Mohd. Aslam, who accompanied the Petitioner during the visit, was also booked by the Petitioner’s wife’s uncle at Hotel Prince. After the conclusion of his investigation at Vishakhapatnam, the Petitioner visited Rajahmundry, where he had arranged for the accommodation himself. During the investigation, there was ample material found by the Petitioner against the NGO and the NGO was accordingly prosecuted under the law. It has been strongly urged on behalf of the Petitioner that, in the present case, the charges levelled against him are axiomatically not made out and there is overwhelming evidence pointing towards his innocence, which is elaborated as follows: -

(i) The Directors of the NGO have unequivocally deposed that the Petitioner has not accepted any hospitality from them.

(ii) Mr. K. Ravi Kumar, a Director of the NGO, has specifically stated in his testimony that he has not paid anything towards the boarding and lodging of the Petitioner in Hotel Dolphin at Vishakhapatnam or at any other hotel.

(iii) Mr. K. Ravi Kumar also stated that he only signed the

Bill No.2647 dated 26.05.2001 for the amount of Rs.3,584/- as he was asked to do so at the Reception of Hotel Dolphin, since the Petitioner was getting late to catch a train. Mr. K. Ravi Kumar also stated that he did not pay anything whatsoever for the Petitioner and further that he merely collected the said Bill and handed it over to the Petitioner.

(iv) Mr. K. Ravi Kumar in his testimony furthermore stated that he had merely written some amounts in the Surya Note Book (3584, 3200, 6784) to help the Petitioner in calculation.

(v) Mr. K. Ravi Kumar has also testified that he had written the train details of the Petitioner only to inform the same at the Reception.

(vi) Mr. K. Ravi Kumar categorically deposed that when the Inspector of CBI, Mr. D.S. Chauhan had taken him before the Cashier of Hotel Dolpihin to establish the identity of the person who had made payment, the Cashier of the hotel during the said Test Identification did not identify him as the person who had made payment to the hotel.

(vii) The treasurer of the NGO (Mr. K. Satyanarayana) has in his examination in chief itself categorically stated and confirmed that, as per the books of accounts, the NGO has not paid any amount towards the hotel accommodation of the Petitioner. Further, the same witness in his cross-examination clearly stated that he did not spend any money from his pocket on the Petitioner’s lodging and boarding.

(viii) Another director of the NGO (Mr. M. Murli Krishna) also stated in his cross-examination that he did not arrange nor make any payment for any accommodation for the Petitioner at Rajahmundry.

(ix) Testimony of the Inspector who conducted the

Preliminary Enquiry against the Petitioner, read in conjunction with the testimony of the Senior Assistant of Hotel Dolphin (Mr. G. Suresh) and that of Mr. P. Rambabu, would bring to light the fact that Petitioner’s wife’s uncle (Mr. P. Rambabu) made all the payments towards the accommodation of the Petitioner.

(x) Statements of Constable Mohd. Aslam, Mr. P.

Rambabu and Mr. K. Ravi Kumar would bring home the fact that the payment for Hotel Prince where Constable Mohd. Aslam was staying was not made by the NGO and was in fact made by Mr. P. Rambabu.

(xi) Evidence would also reveal that there were two bookings in Hotel Dolphin. One in the name of “V. Chandu” and the other in the name of “Chandu Venkateshwarlu”; and only one of them was extended for three more days under the name of Mr. P. Rambabu and Mr. A.V. Krishna Rao, which establishes beyond any doubt that the Petitioner availed the room booking that was done by his wife’s uncle (Mr. P. Rambabu).

(xii) Statements of the Directors of the NGO would also reveal that booking for the Petitioner had already been made at Hotel Dolphin. This has further been corroborated by the testimony of Mr. P. Rambabu.

7. The following submissions have been made on behalf of the Petitioner in support of his case: -

(i) It has been vehemently contended that the entire proceedings were conducted in violation of the principles of natural justice since the Petitioner was not supplied with the First Stage Advice of the CVC, the recommendation by the CBI etc. In this regard, the decisions in The Chairman, Central Board of Trustees v. M. Vijayaraj, reported as (2011) 185 DLT 688; and State Bank of India v. D.C. Aggarwal, reported as (1993) 1 SCC 13 have been relied upon.

(ii) It has also been contended that the Departmental

Enquiry was initiated on non-existent grounds. It has been submitted in this regard that the Petitioner had never made any T.A. bill claim for his stay and for the stay of Constable Mohd. Aslam at Vishakhapatnam; and that this factual position has been admitted by the Respondents as well. In this regard the learned Counsel for the Petitioner have placed reliance upon the decisions in Indian Nut Products v. Union of India, reported as (1994) 4 SCC 269; and Indian Railway Construction Co. Ltd. v. Ajay Kumar, reported as

(iii) It has been contended that since the Respondents acted in violation of Rule 14(5) whilst appointing an Enquiry Officer simultaneous with the issuance of the Charge Memo without awaiting/considering the written statement of the Petitioner, the Enquiry stands vitiated. To buttress this submission, reliance has been placed on the decision in Union of India v. B.V. Gopinath, reported as (2014) 1 SCC 351.

(iv) With regard to the findings of the Enquiry Officer, it has been argued that there is in fact no evidence against the Petitioner and that the Enquiry Officer has proceeded against him merely on the basis of assumptions and suspicion. It has further been pointed out that the same has been admitted by Respondent No.1 itself that none of the witnesses have stated that they paid anything towards the booking of the room for the Petitioner. And, in fact, there is clear and corroborated testimony stating that the payment for the hotel rooms at Vishakhapatnam and Rajahmundry were in fact made by the Petitioner’s wife’s uncle and by the Petitioner. Further, the findings of the Enquiry Officer are perverse, inasmuch as, it is evident that the Enquiry Officer has ignored the specific pieces of evidence on record, including the testimony of PW-12, Mr. V. Rajendra Prasad, General Manager, Hotel Dolphin; and PW-8, Mr. G. Suresh, Senior Assistant, Hotel Dolphin. The Enquiry Officer has further baselessly and without any cogent reason rejected the testimony of K. Ravi Kumar and P. Rambabu (uncle of the Petitioner’s wife). It has also been submitted that it was completely illogical and incorrect for the Enquiry Officer to conclude that the accommodation for the Petitioner was not booked by his wife’s uncle on the grounds that the latter neither visited the Petitioner whilst he left the Hotel Dolphin, nor did he receive him at the time of check-in. It has been incorrectly concluded that merely signing a bill would amount to also making payment when the relevant witnesses themselves have categorically denied making any payments. It has been submitted that the findings and decision of the authorities are in the teeth of the settled law in relation to circumstantial evidence. Reliance has been placed on the following decisions in this behalf: (a) Central Bank of India v. Prakash Chand Jain, reported as AIR 1969 SC 983; (b) Kuldeep Singh v. Commissioner of Police, reported as 1999 2 SCC 10;

(c) Rajinder Kumar Kindra v. Delhi

(d) Cholan Roadways Ltd. v. G.

Thirugnanasambandam, reported as (2005) 3 SCC 241; and (e) Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, reported as (1991) 2 SCC 716.

(v) It has also been submitted that whilst rendering his report, the Enquiry Officer has completely ignored the written brief of the Presenting Officer which clearly, categorically and unequivocally states that the charges against the Petitioner have not been conclusively established since the evidence in this behalf “is weakened”; and further that it cannot be conclusively attributed that the Petitioner availed the hospitality of the accused party; and has also completely ignored the written statement of defence by the Petitioner. The Enquiry Officer has merely mechanically noted the same and not considered them in any manner whilst making the report against the Petitioner. It has, therefore, been vehemently argued on behalf of the Petitioner that, the findings of the Enquiry Officer are perverse, illegal and ought to be set aside. In this regard, the Petitioner has relied upon the decision in Rajinder Kumar Kindra v. Delhi Administration, reported as (1984) 4 SCC 10.

(vi) It has been further submitted that the Disciplinary

Authority ought to draw the substance of imputation of misconduct or misbehavior into definite and distinct article of charges in accordance with Rule 145(3)(i). In this regard it has been pointed out that the Enquiry Officer has, in contravention of the law, traveled way beyond the three charges framed; to erroneously conclude that the Petitioner has obtained financial benefit by way of payment made by the Directors of the NGO for his stay at Vishakhapatnam: (a) Availing undue hospitality; (b) Getting accommodation booked at Hotel Dolphin at Vishakhapatnam and at Hotel Apsara at Rajahmundry;

(c) Obtaining false bill in order to claim fraudulently from the government to hide his stay at Hotel Dolphin. In this regard, reliance has been placed upon the decision in Narinder Mohan Arya v. United India Insurance Company, reported as 2006 (4) SCC 713. It has further been argued that the UPSC was misdirected in law as it traveled beyond the charges framed as well, insofar as it without reason cause or occasion and beyond the scope of its jurisdiction, casually and erroneously observed in its Report that, the Petitioner has failed to explain why he chose to arrange for an accommodation in a costly hotel that was much beyond his entitlement.

(vii) It has been contended on behalf of the Petitioner that the order imposing the punishment is vitiated by nonapplication of mind by the Disciplinary Authority. In this regard, it has been submitted that the order imposing penalty upon the Petitioner has been passed on mere dictation by another authority, inasmuch as, the Disciplinary Authority relied solely on the bald and uninformed advice of the CVC and the UPSC. It has been argued that although the Disciplinary Authority itself did not agree with the Second Stage Advice of the CVC and sought a reconsideration of the same, yet the Disciplinary Authority followed the same advice and admittedly imposed penalty upon the Petitioner without independently applying its own mind to the facts, circumstances, and evidence in the matter. The Disciplinary Authority has not drawn any findings in respect of the charges as is mandated by Rule 15(3) and (4) of the CCS (CCA) Rules. In order to buttress this submission, reliance has sought to be placed upon the following decisions of the Hon’ble Supreme Court: - (a) Nagaraj Shivarao Karjagi v. Syndicate Bank, reported as (1991) 3 SCC 219; (b) Commissioner of Police, Bombay v. Gordhandas Bhanji, reported as AIR 1952 SC 16.

(viii) It has been canvassed on behalf of the Petitioner that the punishment that has been awarded to the Petitioner is inarguably excessive and illegal, since the Disciplinary Authority ought to have acted on its own independent judgment rather than by placing reliance on the statutory advice or otherwise of any other authority/body. Further, the Disciplinary Authority has not weighed or considered the clean service record of the Petitioner, lack of any cogent or actionable evidence against him, and the fact that initially only minor penalty proceedings were recommended against him, whilst deciding the quantum of punishment to be imposed upon the Petitioner. It has further been submitted that the punishment awarded to the Petitioner is discriminatory to the extent that the CVC had recommended major penalty proceedings to Constable Mohd. Aslam as well. However, he was let off by the Respondents merely with the minor penalty of censure. In this regard reliance has sought to be placed on the following decisions: (a) S.R. Tewari v. Union of India, reported as

(ix) It has also been submitted that the officials of the

NGO, in order to scuttle the proceedings and investigation by the CBI, were making repeated calls and bookings on behalf of the Petitioner as they were aware of the schedule of the Petitioner at Vishakhapatnam.

(x) It has been submitted that admittedly, there were two bookings made in Hotel Dolphin and as such, it goes against logic and natural human conduct for someone to make two bookings in the same hotel for himself. Therefore, it has been submitted that the booking made at the behest of the Petitioner was without an iota of doubt done by his wife’s uncle, Mr. P. Rambabu; whereas, the other booking purportedly by the NGO was not made at the behest of the Petitioner, and was, in fact, maliciously made by the NGO.

(xi) Furthermore, it has been argued that the Enquiry

Officer made completely wrong inferences from the call records in the matter. It has been stated that phone records showing calls between the NGO and the CBI, Chennai, Hotel Dolphin and Hotel Prince, seen in conjunction with the testimony of Mr. P. V. Ramanna, Director of the NGO that the Petitioner had informed them of the date of investigation, would in no way be stretched so as to indicate that the Petitioner obtained any pecuniary advantage from the NGO and none of the charges against him can in law be made out from the same.

(xii) It has lastly been submitted that the order imposing compulsory retirement suffers from illegality, irrationality and procedural impropriety and therefore, liable to be set aside.

8. Per contra, it is argued by the official Respondents that the guilt of the Petitioner has been conclusively proved by the following oral and documentary evidence: a. Testimony of PW-1, Mr. P.V. Ramana, Director of the NGO, where he has stated that he was asked by the Petitioner to confirm accommodation; b. Testimony of PW-2, Mr. K. Ravi Kumar, Director of the NGO, where the witness deposed that he continuously and constantly present at Vishakhapatnam to facilitate the investigation by the Petitioner; c. Telephone bill of the telephone installed at the Hyderabad office of the NGO indicating that the Petitioner had informed the Hyderabad office of the NGO about his original tour program for investigation from 18.05.2001 as well as revised tour program; d. Reservation Register of Hotel Dolphin (PD-5) demonstrating that the room at which the Petitioner stayed from 23.05.2001 to 26.05.2001 was booked in the name of “Chandu V”. The Bill No.2647 dated 26.05.2001 issued by Hotel Dolphin (PD-2) in the name of “Chandu V” was collected by PW-2 (Mr. K. Ravi Kumar, Director of the NGO) by putting his signature at the place of “guest signature”; e. The Bill of the Hotel Prince was issued in the joint name of the Petitioner and Mohd. Aslam, even though the Petitioner was not staying at Hotel Prince; f. It is evident that from the “Surya Notebook” (PD-3), that the balance bill of the amount Rs.3,584/- is also mentioned in the notebook of PW-2 (Mr. K. Ravi Kumar, Director of the NGO) and not just the amount of Rs.3,200/- which was paid on 26.05.2001 towards extending the booking for the same room in Hotel Dolphin in the name of “Chandu V”; and g. From the document PD-2, it is evident that telephone calls were made from the Hyderabad office of the NGO to Hotel Apsara at Rajahmundry where the Petitioner had stayed from 04.06.2001 to 07.06.2001; and that an advance of Rs.1,000/- was paid on 01.06.2001 in the name of “Chandu V” even though the Petitioner was not present at Hotel Apsara on 01.06.2001 as he in fact checked-in Hotel Apsara on 07.06.2001.

9. The arguments advanced and submissions made on behalf of the Respondents are encapsulated hereinbelow: -

(i) It has been canvassed on behalf of the Respondents that since the learned Tribunal had gone into the procedural aspects of the case at hand and by way of its order dated 17.02.2014 opined that all procedures were followed in the enquiry, the grievance of the Petitioner, that he was not supplied with a copy of the First Stage of CVC advice and other documents, holds no water. It has been further submitted in this regard that no prejudice has been caused to the Petitioner due to the non-supply of the copy of the First Stage of CVC advice, and that the Petitioner has been heard and the enquiry against him has been conducted in accordance with the Rules and the principles of natural justice. It has further been submitted in this regard that since the procedural issues were gone into and considered by the learned Tribunal twice, firstly, in O.A. No.2566 of 2010; and secondly, in O.A. No.192 of 2013, the contention of the Petitioner that, the enquiry vitiated due to the non-supply of First Stage Advice of the CVC and thus a violation of the principles of natural justice, holds no merit.

(ii) It has further been submitted on behalf of the

Respondents that, as opposed to what has been contented on behalf of the Petitioner in this regard, on account of the CVC’s advice to initiate major penalty proceedings in both, first as well as the second stage, it is not open for the Petitioner to place reliance on the recommendation made by the CBI to the effect that the proceedings be initiated for minor penalty under Rule

16.

(iii) With respect to the reliance placed by the Petitioner upon the Written Brief by the Presenting Officer to the effect that charges against the Petitioner have not been fully proved, it has been contended on behalf of the Respondents that, the Written Brief by the Presenting Officer is a mere submission, which is subject to consideration of the Enquiry Authority; and further that, the said submissions are of no relevance particularly when the Enquiry Report concludes that the charges have been fully proved against the Petitioner.

(iv) It has been submitted on behalf of the Respondents that the findings of the Enquiry Report have been supported by the Statement of Witnesses and the Documents on Record in the Enquiry. Further, that based on the evidence in the case, the Article of Charges has been proved by the Enquiry Officer vídé Enquiry Report dated 29.05.2006, which has been agreed to by the CVC and the UPSC. Moreover, it is upon accepting the advice of the UPSC and the Enquiry Report, that the Penalty Order dated 19.12.2012 has been passed by the Disciplinary Authority against the Petitioner.

(v) It has been vehemently contended on behalf of the

Respondents that the Penalty Order has been passed by the Disciplinary Authority after duly considering all the aspects of the matter as well as the representation made by the Petitioner against the advice of the UPSC.

(vi) Further, it has been submitted on behalf of the

Respondents that Inquiring Authority was appointed on 06.05.2004 by way of order No.221/11/2002-APCA, and not on the same date on which the Memorandum of Charge was issued i.e., 27.01.2004 as has been urged on behalf of the Petitioner.

(vii) In order to controvert the submissions made on behalf of the Petitioner, it has also been stated on behalf of the Respondents that the fact that the Petitioner and Mohd. Aslam did not claim the TA Bill was of no relevance, since the case of the Respondents is that the Petitioner availed hospitality from the NGO it was investigating at the time.

(viii) It has been contended that the Enquiry Officer has proceeded on cogent evidence and not on mere suspicion and/or assumption as has been urged on behalf of the Petitioner. It has also been submitted in this regard that whilst giving his findings in the Enquiry Report dated 29.05.2006, the Enquiry Officer has considered all the aspects of the case, pleadings, statements of witnesses and documents on record. To controvert the contention of the Petitioner that the initiation of the Departmental Enquiry was baseless and misconceived, it has been urged that it is only after a Preliminary Enquiry was conducted and the CVC was consulted, that the Memorandum of Charge dated 27.01.2004 was issued against the Petitioner.

(ix) Further, it has been submitted on behalf of the

Respondents that, the charge against the Petitioner that he availed hospitality from the NGO cannot be construed in a narrow sense; and therefore, the finding of the Enquiry Officer, that the payment of bill was made by the NGO, cannot be said to have gone beyond the charge. In this regard, it has also been submitted that even otherwise, if the findings of the Enquiry Officer in paragraph No.73 of its order were not taken into consideration, the Enquiry Officer found the Petitioner guilty as has been stated in paragraph Nos. 67 and 72 of the said order.

(x) It has also been submitted on behalf of the Respondents that, as opposed to what has been argued on behalf of the Petitioner, the punishment imposed upon the Petitioner is not excessive/disproportionate; and that his role in the investigation against the NGO as well as his status as the DSP, CBI is not comparable to Mohd. Aslam, who was not an investigating officer.

10. We have heard the submissions of the parties at length and perused the record.

11. At the outset, it would be pertinent to discuss the powers of this Court under Articles 226 and 227 of the Constitution of Inia whilst going into the decision of Disciplinary Authority and/or Tribunals. The limits of the jurisdiction of this Court in issuing a writ of certiorari under Article 226 has been frequently considered by the Hon’ble Supreme Court and the legal position in this regard is no longer res integra.

12. In State of A.P. v. S. Sree Rama Rao reported as AIR 1963 SC 1723 it was observed by the Hon’ble Supreme Court as follows: -

13. In Syed Syed Yakoob v. K.S. Radhakrishnan, reported as AIR 1964 SC 477, the Hon’ble Apex Court, on the question of the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226, observed inter alia that “…The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.” The Hon’ble Supreme Court in Syed Syed Yakoob (supra) has also observed that a Court exercising Writ Jurisdiction can correct an error of law by way of a writ of certiorari, and that such an error of law would inter alia also mean and include an event where a finding of fact is based on no evidence. It has however been cautioned that in cases of such nature, the Court must bear in mind that “… A finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned 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, and the said points cannot be agitated before a writ Court.” The Hon’ble Apex Court has placed reliance on the decisions in Hari Vishnu Kamath v. Syed Ahmad Ishaque reported as (1955) 1 SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam reported as (1958) SCR 1240, and Kaushalya Devi v. Bachittar Singh reported as AIR 1960 SC 1168 whilst rendering the above observations.

14. The same principle that, the High Court ought not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or when it can be said that no reasonable person could have reached such a finding, has been followed by the Hon’ble Supreme Court in State of A.P. v. Chitra Venkata Rao, reported as (1975) 2 SCC 557; Railway Board v. Niranjan Singh, reported as (1969) 1 SCC 502; and B.C. Chaturvedi v. Union of India, reported as (1995) 6 SCC 749.

15. In this regard, Hon’ble Mr. Justice V.R. Krishna Iyer, J. in State of Haryana v. Rattan Singh reported as (1977) 2 SCC 491 has also observed as follows: -

16. The Hon’ble Apex Court crystallized the principles in relation to the scope of power of the High Courts, whilst exercising writ jurisdiction in such cases in Union of India v. P. Gunasekaran, reported as (2015) 2 SCC 610 and the same have been reproduced hereinbelow:

17. In Om Kumar v. Union of India, reported as (2001) 2 SCC 386, the Hon’ble Supreme Court discussed the Wednesbury Test/Principles, the oldest test/principle laid down on the subject, whilst opining on the powers of the Writ Courts under Articles 226/227 of the Constitution of India in relation to Departmental Inquiries. The relevant portion of the judgment is reproduced below: - “Lord Greene said in 1948 in the Wednesbury case [(1948) 1 KB 223: (1947) 2 All ER 680 (CA)] that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [(1984) 3 WLR 1174: 1985 AC 374: (1984) 3 All ER 935 at 950j] (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality.”

18. We may also refer to the relevant portions of the decision of the House of Lords in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn reported as (1948) 1 KB 223. The same is extracted and reproduced hereinbelow: - “… It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. … In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another. **** **** **** … it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. … The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.”

19. Another guiding principle for considering the present petition would be one advocated by Lord Cooke. A simpler test than the Wednesbury Principle, as suggested by Lord Cooke, to ascertain whether the High Court in writ jurisdiction should interfere with the decision of the Tribunal/Authority is, “was the decision one which a reasonable authority could reach?”.

20. In light of the above decisions of the Hon’ble Supreme Court, the Wednesbury Principle as well as the test advocated by Lord Cooke of the House of Lords, it is abundantly clear that this Court cannot sit in appeal over the decision of the learned Tribunal and that of the Disciplinary Authority. Further, it would be borne out from the decisions cited hereinabove that this Court cannot go into the insufficiency or adequacy of evidence in exercise of its writ jurisdiction. This Court ought to only interfere with the decision of a Tribunal/Authority in the event that there was no evidence, or that the conclusion of the Tribunal/Authority was one which cannot be supported by any evidence and the same could not have been arrived at by any reasonable person/authority in the given set of facts and circumstances.

21. Thus, the principal question that arises for our consideration is whether the decisions of the Disciplinary Authority as well as that of the learned Tribunal vídé its order dated 17.02.2014, are reasonable, logical and based on cogent evidence that supports the charge against the Petitioner.

22. Ex facie, upon a plain reading of the evidence recorded of the 16 witnesses examined in support of the charges against the Petitioner it is manifest that, the entire case of the Respondents, that the Petitioner availed undue hospitality, is unfounded inasmuch as, all the Directors of the NGO denied having paid any money whatsoever towards the booking of the room for the Petitioner during the investigation. Further, the testimony of the Petitioner’s wife’s uncle, who stated that he booked and paid for Petitioner’s stay during the tour/investigation, has been further corroborated by the testimony of the subject witnesses. Further, the explanation offered by one of the Directors of the NGO, who signed the hotel bill in no uncertain terms establishes that he denied making any payments for the Petitioner in any manner whatsoever. This testimony has also been inarguably corroborated by the testimony of other witnesses including the Cashier of the subject hotel; in complete consonance with the stand maintained throughout by the Petitioner.

23. It seems that the Respondents have pre-determined desired outcome to the disciplinary/penalty proceedings i.e., the guilt of the Petitioner and thereafter proceeded to completely and erroneously disregard any evidence that establishes otherwise. No reasonable person/authority, having applied their mind to the charges to be established, could have concluded in the manner as has been done in the present case. Even a cursory glance into the matter clearly demonstrates that, in the facts and circumstances of the case and in view of the clear cut evidence on record, there is nothing present to show that the Petitioner was guilty beyond the preponderance of probability of any of the three charges framed against him in the subject enquiry. The material on record shows that the said charges were a fortiori, as submitted by the Presenting Officer himself, not conclusively established owing to the weaknesses in the testimony of official witnesses and further that it could not be attributed that the Petitioner availed the hospitality of the accused party. There is no evidence on the record, direct/indirect or circumstantial, to bring home the charges against the Petitioner. The Enquiry Officer’s report is replete with presumptions and conjectures and premised on suspicion surmises and unsubstantiated assumptions, completely contrary and in abject ignorance to the testimony of the witnesses.

24. In view of the foregoing, it is apparent that the Disciplinary Authority seems to have arrived at a decision against the Petitioner that is completely in defiance of any logic and unsupported by even an iota of evidence. The present is not a case where the Disciplinary Authority could have taken one of two views. Had that been the case, this Court would have to exercise restraint in recording its reasonable view as against that of the Disciplinary Authority. Therefore, unfortunately, in the present case, ex facie, one and only one logical conclusion can be drawn from the facts and circumstances of the case. And, that conclusion undoubtedly points towards the fact that none of the charges have been made out against the Petitioner; as well as the considered opinion that the findings arrived at are perverse and not based on any legal evidence. In addition they suffer from the additional infirmity and vice of total non-application of mind. Any findings of misconduct based on total absence of evidence, must necessarily fail.

25. It would also not be out of place to state that the learned Tribunal completely glossed over the crux of the matter at hand, and was only impressed by the fact that the principles of natural justice were met and that the Petitioner was given an opportunity to be heard. The learned Tribunal ought to have tested the decision of the Disciplinary Authority to discover whether or not there was any legal evidence which would support, in any manner whatsoever, the charges against the Petitioner. The learned Tribunal was axiomatically in error in declining to examine the contention that the findings were perverse on the cryptic, short, specious and wholly untenable finding---without any due consideration---and their ipse dixit that, it would be difficult to hold that the Enquiry Officer’s findings fell in the category of ‘no evidence’.

26. The Hon’ble Supreme Court, in B.C. Chaturvedi (supra), has observed that “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 enquiry 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.”

27. In keeping with the above dictum of the Hon’ble Supreme Court, we are of the considered view that the interference of this Court in the present case is clearly and eminently warranted.

28. In view of the foregoing discussion, the findings and conclusions arrived at by the learned Tribunal in the impugned order dated 17.02.2014, as well as, those made in the order dated 19.12.2012 passed by the Disciplinary Authority are not sustainable in law. Consequently, the impugned order dated 17.02.2014 passed by the learned Tribunal and the order dated 19.12.2012 passed by the Disciplinary Authority imposing penalty are set aside and quashed. In the result, the Petitioner is directed to be reinstated in service and he shall further be entitled for all increments and promotions, including back wages, till the date of his superannuation, in accordance with law.

29. The present writ petition is allowed, and is disposed of on the above terms. The pending application also stands disposed of.

30. There shall be no order as to costs.

SIDDHARTH MRIDUL (JUDGE)

TALWANT SINGH (JUDGE) AUGUST 18, 2021 Click here to check corrigendum, if any