Judgment:
ORDER
1. The petitioner joined the service of the respondent-bank as Clerk-cum-Godown Keepar in the year 1960. He was promoted as an Officer and posted to Chetpet Branch on April 15, 1972. He was subsequently transferred as acting Accountant to Thousand Lights Branch at Madras and later transferred to Pondicherry. He was promoted as Manager in the month of September 1975. In December 1979, one T. K. Subramaniam was posted as Branch Manager, Pondicherry and the petitioner was served with an order of transfer as Manager, Chengalpattu Branch during February 1980. Subsequently the order of transfer was cancelled and the petitioner was served with an order of suspension dated March 24, 1980. Certain allegations were set out in the order of suspension and it was stated that if proved they would constitute misconduct. A Memorandum of Articles of Charge dated February 24, 1982 was issued to the petitioner. It was alleged that he was guilty of misconduct under Regulations 3(1), 14(1) and 15(1) of the Indian Bank Officer Employees (Conduct) Regulations, 1976. He was also charged with misconduct punishable under Regulation 4 of the Indian Bank Officer Employees (Discipline & Appeal) Regulations, 1976. A statement of allegations of misconduct, on the basis of which charges were framed, was appended to the Memorandum. With reference to Regulation 3(1), ten instances were set out wherein he had acted beyond his powers and violated the prescribed norms and procedures, thereby contravening Regulation 3(1). They were grouped together under charge No. 1. Similarly, Charge No. IV was with reference to grant of temporary overdrafts to a particular constituent, whose accounts had already been irregular. That was also brought under Regulation 3(1). Charge No. II was under Regulation 14(1) while Charge No. III was under regulation 15(1).
2. The petitioner sent a reply dated March 13, 1982 containing his explanations. After setting out in the beginning that during his tenure as Manager of the Branch firm September 1975 to March 1980, the discharged his duties with integrity, honesty, devotion and diligence he stated that he had strained for the growth and expansion of deposits as well as the business of the branch. He furnished certain statistics to show that the business of the branch had grown considerably because of his efforts. Before proceeding to give his explanations with regard to the specific instances, he stated as follows :-
'It is most respectfully submitted that during the course of my tenure as Manager, I worked hard to develop and expand the potentialities of the Branch. In the course of normal discharge of my duties, no doubt, there were occasions to deviate from Head Office guidelines; but such deviation were on account of the enthusiasm I had to help the customers of the bank expecting that they in turn would expand their connections with the bank. On account of this enthusiasm and hard work the business of the Branch did expand and develop both deposits and advanceswise as mentioned above and as a sequel thereof the Profit also trebled comparatively between 1976 and 1979.
Procedural lapses, no doubt, were there in some instances. These lapses were mainly on account of this paucity coupled with additional work in connection with the lead bank work as lead bankers in the State and all these factors compounded for such procedural lapses. But I wish to most respectfully submit that the advances granted by me were for bona fide and genuine reasons and parties were bona fide parties and while granting such advances the interest of the Bank was fully secured by proper documentation and against acceptable form of securities.'
Thereafter, he explained each and every act of alleged misconduct. The substance of his explanation was that he had acted bona fide on the basis of the trustworthiness of the parties and he had informed the Head Office then and there.
He concluded his reply with the following words :-
'Lastly, I wish to most respectfully submit that the Conduct Regulations for Bank Officers although unilaterally passed in our Board, the Regulations as such have been challenged by many officer organisations in the country. No doubt, ignorance of law is no excuse. However, having come to know that borrowing by an officer is prohibited in the Banks rules I immediately repaid the loans. This will evidence that I have been honest in understanding and rectifying my conduct when once I have been found by superiors as wrong. As represented earlier that there have also been procedural lapses and over-enthusiasm exhibited by me in order to build deposit potential of Pondicherry Branch. The development of the Branch and growth of its position has already been submitted by me earlier. In the light of the above I would most respectfully submit that a lenient view may be taken about my procedural lapses and revoke my suspension to enable me to join duty to prove that I am always at the service of our Bank and in all its activities. I would further submit that I have been subjected to untold sufferings for the past two years. Kindly, may I repeat and request to take a lenient view of the matter and enable me to join duty at the earliest.'
3. A communication was sent to him on March 24, 1982 to the effect that there was a mistake in the dates set out in Charge No. II and it was substituted by the Charge set out in that communication. He was called upon to submit his explanation in defence of Charge No. II within 15 days from the date of receipt of the communication. By reply dated April 4, 1982, the petitioner informed the Disciplinary Authority that he had nothing more to add than what he had already started in his reply dated March 13, 1982. The respondents were not satisfied with the explanations offered and an Enquiry Officer was appointed to conduct an enquiry. An Officer of the Vigilance Department of the Bank was also appointed as Presenting Officer. On May 25, 1982 a Memorandum of Additional Charges was issued to which the petitioner sent a reply on June 18, 1982. On November 2, 1982 the petitioner was informed about the change of the Enquiry Officer. He was informed by letter dated November 10, 1982 that the enquiry would commence on December 6, 1982.
4. On December 6, 1982, the petitioner represented to the Enquiry Officer that his defence would continue to be his reply dated March 16, 1982. The minutes of the Enquiry Officer dated December 6, 1982 contained the following statement :-
'.......... Shri Kasi also admits that he had given excess advances beyond his discretionary powers as given in the statement of allegations. Shri Kasi was also given a copy of the list of the documents and list of witnesses in support of the charges. He was also given copies of the statement of witnesses recorded during the investigation.'
The Enquiry Officer observed that in the light of the submissions made by the petitioner before his and in the light of his reply dated March 13, 1982, the Presenting Officer will decide whether he will examine the listed witnesses or not. The Presenting Officer was directed to allow inspection of the listed documents to the petitioner at Madras from 14th to 18th of that month. The petitioner was also allowed time till December 24, to submit the list of defence documents and defence witnesses. The further hearing was fixed to take place at Madras on December 28, 1982.
5. On December 28, 1982, the Presenting Officer filed a representation before the Enquiry Officer containing the following :-
'As directed at the prehearing at Delhi on December 6, 1982 in the above case, Shri Kasi inspected the listed documents.
As pleaded by him at the P. H. he said he was not insisting our charges in S. No. of imputations relating to S. Nos. 1(i) to (x) and IV as he is accepting these charges and wanted to inspect out of the listed documents only Nos. 38 to 48 and No. 50 relating to charges S. No. of imputations II & III. This he had completed and given a certificate to this effect.
As he is not able to participate in the hearing today on account of his mother's death the regular hearing may now he fixed at a convenient date.'
Along with the representation, a letter written by the petitioner on December 18, 1982 addressed to the Enquiry Officer and handed over to the Presenting Officer was also filed. The contents thereof are as follows :-
'As directed by you on December 6, 1982, I have this day completed inspection of the following documents as per the list submitted to me :
38 to 48 and 50.'
6. The enquiry was adjourned to suit the convenience of the petitioner and witnesses were examined on March 14, 1983. The respondents examined two witnesses on their side and marked 47 documents as exhibits. The petitioner did not file any document; nor did he examine anybody as his witness. The petitioner cross-examined the witnesses examined by the respondents. It is not in dispute that the cross-examination was confined to Charge I Item (iv). It should be noted that even when inspecting the documents, the petitioner confined his inspection to documents relating to Charges II and III, which were documents Nos. 38 to 48 and 50 and he did not want to inspect the other documents. On March 15, 1983, the Enquiry Officer put three questions to the petitioner and he answered the same. The questions and answers were also recorded. The following minute was entered by the Enquiry Officer on March 15, 1983 :-
'Shri Kasi submitted that he would be submitting statement of defence only in the form of written brief and he has no statement as such to submit right now.
A few questions were put to Shri Kasi and his replies thereto were recorded. Both the sides wanted to submit written brief. P.O. also submitted that he has to attend an inquiry at Trivandrum the next week. In view of this he was allowed time till March 31, 1983 to submit his written brief to me. He may please ensure that a copy of his brief is sent to the Defence Assistant of Shri Kasi as desired by Shri Kasi, positively by March 31, 1983. Shri Kasi was allowed time upto April 10, 1983 to submit his written brief.'
7. The Presenting Officer filed a written brief on March 8, 1983 and the petitioner filed his written brief. The Enquiry Officer forwarded his report dated April 28, 1983 to the Disciplinary Officer. After setting out the charges and the defence in brief, the Enquiry Officer referred to the evidence in detail. He found that there was no evidence supporting the version of the petitioner that he had informed the Head Office about his granting overdrafts in excess of his discretionary powers. Reference was also made in the report to the absence of cross-examination on that point by the petitioner of the first witness for the management. The Enquiry Officer held that the petitioner was guilty of Charges I(i), (ii), (v), (vi), (vii), (viii) and (ix). He did not give any finding on Charge I(iii), He held that Charge No. (iv) and I(x) were not proved. The following passages in the report are relevant :-
'25. The above discussion will show that Shri Kasi while functioning as Manager, Pondicherry Branch of Indian Bank, had given TOD and Open Cash Credit accommodation beyond his powers and failed to charge interest on some accounts maintained in the Branch. In the process Bank's interests have become jeopardised. It has also been found that TODs have been allowed by Shri Kasi rather indiscriminately and without any justifiable grounds. It would appear that TODs have been granted to some parties who on their own merits did not deserve this and amounts of TODs as allowed by Shri Kasi happen to be much more than his discretionary powers. Shri Kasi failed to produce evidence to show that he had allowed overdrafts with prior permission of his Controlling Authority and had reported exceeding discretionary powers of TODs to his Controlling Authority.
.... .... ....
33. The foregoing discussion would show that Shri Kasi while functioning as Manager, Pondicherry Branch of Indian Bank apart from granting TODs beyond his discretionary powers to some parties without consideration of merit, apart from accommodating the party in OCCA beyond the authorised limit also accepted hospitality from one of the constituents and also had borrowed money and placed himself under pecuniary benefits to persons having dealings with the Bank.'
8. Accepting the report of the Enquiry Officer, the Disciplinary Authority, i.e., the Deputy General Manager of the Bank passed an order on December 30, 1983 imposing the punishment of removal from service with immediate effect in terms of Regulation 4 of the Indian Bank Officer Employees (Discipline and Appeal) Regulations, 1976. The period of suspension from March 24, 1980 till that date was directed to be treated as one of suspension. The order was communicated along with the copy of the findings of the Inquiry Authority. The petitioner preferred an appeal to the second respondent. By order dated July 23, 1984, the second respondent dismissed the appeal concurring with the decision of the Disciplinary Authority. The petitioner has filed this writ petition on December 20, 1984 for issue of a Certiorari calling for the records and to quash the orders of the Disciplinary Authority and the second respondent. The respondents have filed a counter affidavit.
9. At the outset it is argued by learned counsel for the petitioner that even if the findings of fact arrived at by the Enquiry Officer are accepted, they do not make out a case of misconduct on the part of the petitioner. According to him, the facts prove only procedural lapses due to bona fide errors in judgment and not out of any ill-motive of the petitioner. It is contended that the petitioner is not guilty of mala fide and the record of his service proves that he has always acted in the best interests of the Bank for the growth and expansion of the business of the Bank. It is also the complaint of the counsel that the explanations offered by the petitioner in his reply dated March 13, 1982 in the first instance and the written brief filed at the close of the enquiry have not at all been considered by the Enquiry Officer or by the Disciplinary Authority. Learned counsel invites my attention to the ruling of the Supreme Court in Union of India v. J. Ahmed 1979-II-LLJ-14. The apex Court dealt with the definition of 'misconduct' and observed that failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence, would not constitute misconduct or indicate lack of devotion to duty.
In that case, the High Court was of the opinion that misconduct in the context of disciplinary proceeding meant misbehavior involving some form of guilty mind or means res. The Supreme Court found it difficult to subscribe to that view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings. Learned counsel submits that in the present case, what is proved is only a technical violation of the instructions of the Head Office in the matter of grant of advances and overdrafts which could only amount to error of judgment owing to the enthusiasm on the part of the petitioner to work up for the growth and expansion of the business of the Bank.
10. My attention is drawn to the judgment of a Division Bench of this Court in R. Srinivasan v. Union of India and another : (1982)IILLJ135Mad , in which it was held that an innocent indiscreet act on the part of the appellant therein in not paying the rent in the hope that he could pay the same as soon as the monthly rent was fixed, could not be characterised as conduct unbecoming of a Government servant.
11. Reliance is placed on the judgment in A. L. Kalra v. The Project and Equipment Corporation of India Ltd. : (1984)IILLJ186SC . It was held in that case that the rule of a Public Sector Company providing for maintaining absolute integrity and to do nothing which is unbecoming of a public servant was 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. It was observed that in a given context that would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation and failure to keep to high standard of moral, ethical or decorous behaviour befitting an officer of a company by itself cannot constitute misconduct, unless the specific conduct falls in any of the misconducts, specifically enumerated in the conduct and discipline rules. On the facts of that case, it was held that the rules framed for granting house building advance contained provisions as to the action to be taken in the event of failure to return the advance within the stipulated time and, therefore, there was no ground for initiating disciplinary enquiry, as the breach of the rules did not constitute misconduct.
12. Reliance is also placed on the judgment in Rajinder Kumar Kindra v. Delhi Administration : (1984)IILLJ517SC , in which the apex Court held that an employee, who is merely negligent and who is no a participant in a conspiracy with a co-workman who was guilty of misappropriation of the employer's money, was not guilty of misconduct. That case is also cited in support of the contention that if the conclusion of a Tribunal are based on surmises and conjectures unrelated to evidence and disclose total non-application of mind, they would be perverse and could be interfered with by the Court.
13. Learned counsel also relies on the judgment in Bhagwati Prasad Dubey v. The Food Corporation of India : (1988)ILLJ231SC . In that case, the appellant was removed from service on ground of misconduct. The Enquiry Officer held that a charge of misconduct was proved inasmuch as the appellant had paid higher rates to a certain firm for purchasing certain goods, although another firm was prepared to supply the same at a lesser rate. The Court held that the finding of the Enquiry Officer was based on no evidence and without proper appreciation of the background and circumstance in which the appellant had to function at the relevant time, because there were circumstances in which the Officer was constrained to purchase a huge quantity of the goods and the firm which offered at a lesser rate was a small-scale supplier and it had subsequently withdrawn its offer to supply the goods at the same rate. Hence, it was held that the order of removal from service was liable to be set aside. The judgment of the Court turned on the facts and circumstances of the case.
14. The question to be decided is, whether the petitioner is guilty of misconduct within the Regulations of the Bank and whether the findings of the Enquiry Officer are supported by evidence on record. Incidentally, it has to be seen whether the explanations offered by the petitioner have been considered by the Enquiry Officer and the Disciplinary Authority. The following are the relevant regulations for the purpose of this case :-
'3(1) Every officer employee shall, at all times, take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank officer.
14(1) Save as otherwise provided in these regulations no officer employee shall accept or permit any member of his family or any person any member of his family or any person acting on his behalf to accept any gift.
Explanation : The expression 'gift' shall include free transport, boarding, lodging or other service or any other pecuniary advantage when provided by any person other than a near relative or a personal friend having no official dealings with the officer employee.
Note. 1 : A casual meal, lift or other social hospitality shall not be deemed to be gift.
Note 2 : An officer employee shall avoid acceptance of lavish or frequent hospitality from any individual or concern having official dealings with him.
15. No officer employ shall, in his individual capacity -
(i) borrow or permit any member of his family to borrow or otherwise place himself or a member of his family under a pecuniary obligation to a broker or a money lender or a subordinate employee of the bank or any person, association of persons, firm, company or institution, whether incorporated or not, having dealings with the bank.
24. A breach of any of the provisions of these regulations shall be deemed to constitute a misconduct punishable under the Indian Bank (Discipline and Appeal) Regulations, 1976.'
15. Under the Regulations, if there is a violation of any of the provisions thereof, it shall be deemed to constitute misconduct. I have already referred to the admission made by the petitioner before the Enquiry Officer on December 6, 1982 that he had given excess advances beyond his discretionary powers set out in the statement of allegations. I have also referred to the fact that the witnesses examined by the respondents were cross-examined to a limited extent with reference to Charge II(iv) only. There was no cross-examination with reference to the other charges and in particular Charges I(i), II and III. Charge I(i) is to the effect that the petitioner sanctioned temporary overdrafts indiscriminately between July 9, 1976 to October 26, 1977 totalling to Rs. 25,586,908 to the firm M/s. Coastal Line Company of which Shri K. Panju and Shri G. P. Murthy were partners, after the petitioner obtained a loan from Shri Panju against a promissory note dated May 25, 1976. It is needless to say that the Charge is in effect one that the petitioner sanctioned the temporary overdrafts as a quid pro quo to his personal benefit from Shri Panaju. Charge I(ii) is that the same persons viz., Shri Panju and Shri Murthy along with two others started another firm M/s. O. K. Exports and the petitioner granted indiscriminately open cash credit advance to extent of Rs. 3,14,163.87 between June 8, 1978 and February 9, 1980 in the current account opened on December 14, 1977 far exceeding his discretionary limit of Rs. 25,000/-. Charge No. II is that on account of his close contact with Shri K. Panju, the petitioner allowed himself to be entertained by him at Hotel Continental at Pondicherry and also his boarding and lodging expenses to be met by him when he visited Madras and stayed in Hotel Woodlands, Royapettah, Madras, on March 4, 1978, March 5, 1978, February 9, 1980 including the admissions of the petitioner. It is, therefore, futile to contend that there is a bona fide error of judgment on the part of the petitioner and that the findings, even if accepted on facts, do not make out a case of misconduct. The judgment of the Supreme Court cited by the petitioner's counsel himself, viz., Union of India v. Ahmed : (1979)IILLJ14SC (supra) is against the petitioner. The relevant passage in the judgment reads thus (pp. 18-19) :
10. Code of conduct as set out of the Conduct Rules clearly indicates and conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct.
If a servant conduct himself if in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearos v. Foster (1886) 27 QBD 536 (at p. 542). A disregard of an essential condition misconduct (see Laws v. London Chronicle (Indicator Newspapers) (1959) I WLR 489. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway Nagpur Divn., Nagpur, : AIR1961Bom150 and Satubhe K. Vaghele v. Moosa Raza, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stround'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.'
In industrial jurisdiction amongst others, habitual or gross negligence constitute misconduct but in Management Utkal Machinery Ltd. v. Miss Shanti Patnaik : (1966)ILLJ398SC in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India : (1967)IILLJ219SC the manner in which a member of the service discharged his quasi-judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta : (1963)ILLJ679SC wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto 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 irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more similar (examples) instances of which (are) a railway cabin man signalling in a train on the same track where there is a stationary train causing headlong collision; anurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd. : (1979)ILLJ60Guj . But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an interference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.'
16. There is no substance in the argument that the explanation offered by the petitioner and the circumstances in which he granted advances in excess of the discretionary powers have not been considered by the Enquiry Officer or the Disciplinary Authority. A perusal of the report of the Enquiry Officer and the order of the Disciplinary Authority proves beyond doubt that the explanations of the petitioner and the relevant evidence on record have been fully considered and duly weighed by the Officers. No exception can be taken to the conclusions arrived at by the Officers, as they are supported by the evidence on record. It is not necessary for me to repeat here the discussion of the evidence.
17. It should be remembered that this Court is not sitting in appeal over the disciplinary authorities of the bank and the scope of the jurisdiction under Article 226 of the Constitution of India is confined to the determination as to whether the enquiry is held by a competent authority, whether it is according to the procedure prescribed in that behalf, and whether the rules of natural justice are violated. Where there is some evidence which the enquiry authority has accepted and which evidence may reasonably support the conclusion of the said authority, it is not the function of this Court to review the evidence and to arrive at an independent finding on the evidence. Of course, if the authorities have disabled themselves on reaching a fair decision, by considerations extraneous to the evidence and the merits of the case, or where the conclusion on the face of them are so wholly arbitrary and capricious that no reasonable person could ever have arrived at those conclusions, the Court can interfere. Giving a ruling to that effect, the Supreme Court observed in State of Andhra Pradesh and others v. S. Sree Rama Rao : (1964)IILLJ150SC as follows :
'But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.'
18. In a later case viz., State of Andhra Pradesh and others v. Chitra Venkata Rao : (1976)ILLJ21SC the proposition was reiterated by the apex Court and it was observed (p. 26)
'24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, re-assessed the evidence and then rejected the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.'
19. On the facts of this case, I am convinced that the enquiry has been held in the proper manner in accordance with rules and the principle of natural justice. The findings arrived at by the enquiry authority are based on ample evidence on record and they do not call for any interference under Article 226 of the Constitution of India.
20. It is next argued that Regulations 7 (3) and 17 of the Indian Bank Officer Employees (Discipline and Appeal) Regulations are violated, as there is a total non-application of mind by the Disciplinary Authority as well as the Appellate Authority. The said Regulations read as follows :-
'7 (3) If the Disciplinary Authority, having regard to its findings on all any of the articles of charge, is of the opinion that any of the penalties specified in Regulation (4) would be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation (8), make an order imposing such penalty.'
'17. Appeal
(i) An officer employee may appeal against an order imposing upon him any of the penalties specified in Regulation (4) or against the order of suspension referred to in Regulation (12). The appeal shall lie to the Appellate Authority.
(ii) An Appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted through the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case :
(i) if the enhanced penalty which the Appellate Authority proposed to impose is a major penalty specified in clauses (e), (f), (g) and (h) of Regulation (4) and an inquiry as provided in Regulation (6) has not already been held in the case, the Appellate Authority shall direct that such an enquiry be held in accordance with the provisions of Regulation (6) and thereafter consider the record of the enquiry and pass such order as it may deem proper.
(ii) If the Appellate Authority decides to enhance the punishment but an enquiry has already been held as provided in Regulation (6), the Appellate Authority shall give a show cause notice to the Officer employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation if any, submitted by the officer employee.'
It is argued that the Disciplinary Authority is enjoined by Regulation 7(3) to give his findings on all or any of the Article of Charge. According to learned counsel, in the present case, the order passed by the Disciplinary Authority contains inherent evidence to show that the he has not applied his mind at all to the matter. Learned counsel refers to that part of the order of the Disciplinary Authority in which he has made a reference to the purchase of foreign bills for the firm O. K. Exports, which formed the content of Charge No. I(iv). According to learned counsel, the Enquiry Officer had exonerated the petitioner from the Charge and there is no necessity for the Disciplinary Authority to refer to the same, The relevant paragraph in the order of the Disciplinary Authority reads thus;
'For the firm of O. K. Exports you had purchased Foreign Bills for a total amount of Rs. 385581/- without observing the norms of obtaining credit report on the drawees, and calling for the submission of the relevant confirmed contracts and also not obtaining ECGC cover for the exports. As these Foreign Bills had been routed through Head Office and as Head Office had not taken any exception to these Foreign Bills, the Inquiring Authority has held that there was no irregularity in the purchase of these bills. Moreover stated that you have obtained the title deeds of property to secure this advance.'
I do not agree with learned counsel that the said paragraph indicates non-application of mind on the part of the Disciplinary Authority. As Disciplinary Authority, he is bound to refer to all the charges and give his findings thereon, even according to the arguments of the petitioner's counsel. Thus, he had referred to the Charge and accepted the finding of the Enquiry Officer that the same had not been proved. A reading of the paragraph only shows that the Disciplinary Authority has applied his mind to the matter in question. Similarly, my attention is drawn to another paragraph in which reference is made to the temporary overdraft advance to Murugan Tailor industry and contended that the same proves non-application of mind on the part of the Officer. I do not agree. The Disciplinary Authority has referred to the substance of the Charge and accepted the findings of the Enquiry Officer against the petitioner.
21. After referring to the Charges and accepting the findings, it is observed by the Disciplinary Authority as follows :-
'Thus it has been found that you had, while functioning as Manager of our Pondicherry Branch, granted TODs far beyond your discretionary powers indiscriminately without taking into consideration the merits of the parties and similarly you had exceeded the OCC limits. You had also accepted the hospitality from one of the constituents and placed yourself under pecuniary obligation to persons having dealings with the bank.'
There is no doubt whatever that the Disciplinary Authority applied his mind to the record and came to a conclusion.
22. Learned Counsel for the petitioner invited my attention to the judgment of this Court in State of Madras v. H. Kandaswamy (1972) I M.L.J. 374 and the following passage therein :-
'Adequacy or inadequacy of evidence to support a finding is not within the jurisdiction of the High Court under Article 226; but when a complaint is made that there is no acceptable evidence at all to support the impugned conclusion of the Tribunal or that no Tribunal with a duty to weigh thee evidence could possibly have come to that conclusion, it is the duty of this Court under Article 226 to find out whether the complaint so made is justified or not. The entire evidence adduced both for prosecution and for the delinquent officer has to be assessed by the Tribunal in coming to its conclusion, and if it is fails to do so and its conclusion is based merely on surmises and not on acceptable evidence, which conclusion no Tribunal with a judicial frame of mind could come to, the High Court is justified under Article 226 to examine the evidence to satisfy itself whether the conclusion of the Tribunal is correct. The finding of fact recorded by a Tribunal is entitled to respect only in so far as it is established that the finding has been reached after a consideration of all the relevant evidence and the surrounding circumstances and the setting in which the evidence is adduced. We are of opinion that the Tribunal cannot raise a barrier against scrutiny of its conclusion by the assertion that it believes a witness when the facts spoken to by the witness are exceedingly improbable.'
23. Learned counsel contends that the question of probability has not been considered by the Authorities and this Court is entitled to consider the same. Reliance is also placed on the judgment dated March 17, 1992 of a division Bench of this Court in The Management of Indian Overseas Bank rep. by its Managing Director and others v. T. N. Govindarajan (W.A. No. 267 of 1992). On the facts of the case it was held that the Disciplinary Authority and the Appellate Authority did not apply their minds to the evidence on record before arriving at the findings, with the result their conclusion were set aside. The Disciplinary Authority to prosecute the action from the stage of passing an order by the Disciplinary Authority.
24. I am of the view that neither of the judgments referred to above helps the petitioner in this case. I have already referred to the relevant portions of the order of the Disciplinary Authority to show that he has applied his mind to the matter fully. Similarly, the order of the Appellate Authority also discloses that he had in turn considered the matter when it was brought to him by the petitioner. The Appellate Authority had dealt with everyone of the grounds urged by the petitioner in his memorandum of appeal. With regard to Charge No. II, the petitioner produced a new document purporting to be a receipt issued by Shri Panju that he had received from the petitioner the proportionate amount of the paid to Hotel Woodlands at Madras. The Appellate Authority considered the said document and held that the same did not help the petitioner to prove his version. The following passages in the order of the Appellate Authority prove that he had applied his mind to the record :
'I have gone through the entire records. Sri Kasi's contentions are unacceptable. In his reply dated March 13, 1982 to the charge sheet Sri Kasi had admitted indirected that he had exceeded his powers. Further when the powers of Managers were reduced, Sri Kasi had not taken any steps to recover the excesses and bring the balance within the permissible limit.
...... ...... .....
Sri Kasi had enclosed a receipt from Sri. K. Panju wherein Sri Panju has stated that he had received from Sri Kasi the proportionate amount of the bill paid to Hotel Woodlands relating to his stay on March 4, 1978, March 5, 1978, February 9, 1980 and February 10, 1980. No amount is specifically mentioned. Sri Kasi did not produce any such receipt during the Enquiry proceedings. The receipt is dated February 1, 1984 (i.e. after the date of imposition of punishment).
As regards the loan he took from sri Panju, Sri Kasi has contended that while he took the loan in May 1976 when a different set of Conduct Regulations were in force, the Indian Bank Officer Employees (Discipline & Appeal) Regulations 1976 came with effect in October 1976 and the Bank has no legal sanction to charge him under the regulations that had come into effect much later. This contention of Kasi is untenable.
Sri Kasi was charged under Regulation 15 (1) of IBOE (Conduct) Regulations, 1976 for placing himself under pecuniary obligations to the constitutes of the Bank by obtaining loans from them. The Regulations came into effect on October 1, 1976. The Regulations which were in force in May 1976 was 'Rules Governing Service of Officers' 1963. Rule No. 25 (1) of the above rules states 'An Officer shall not borrow from or in any way place himself under pecuniary obligation to a broker or money lender or a subordinate employee of the bank or any firm or person having dealings with the Bank'. The Rule Nos. 14 to 34 relating to Conduct (Discipline & Appeal) of 'Rules Governing Service of Officers (1963)' have been repealed and replaced by Indian Bank Officer Employee (Conduct) Regulations 1976 and Indian Bank Officer Employees (Discipline & Appeal) Regulations 1976, which came into force from October 1, 1976. Hence, Sri Kasi's contention is unacceptable.
Sri Kasi has not adduced any fresh facts or information which may go to mitigate the gravity of offences committed by him and warrant imposition of a penalty less than the one already imposed on him. Hence I concur with the decision of the Disciplinary Authority and the appeal is rejected as without merit.'
25. In Tara Chand v. Delhi Municipality : (1977)ILLJ331SC it was held that an order could not be held to be a non-speaking order simply because it is brief and not elaborate. The law is stated thus : (p. 339) :
'In this connection we would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order it is differs from the conclusion arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case, we think, has to be judged in the light of its own facts and circumstances.'
The ruling of the Supreme Court was followed by Ratnam, J. in K. Sarboji v. State of Tamil Nadu and another : (1986)ILLJ395Mad .
26. the next contention urged by learned counsel for the petitioner is that a copy of the Enquiry Officer's report was not furnished to the petitioner before the Disciplinary Authority considered the same. According to learned counsel, the failure to give an opportunity to the petitioner to make his representations against the findings arrived at by the Enquiry Officer would constitute a violation of the principles of natural justice. Reliance is placed on the judgment of the Supreme Court in Union of India v. Mohd., Ramzan Khan : (1991)IILLJ29Mad . The relevant passages read thus :
'13. Several pronouncements of this Court dealings with Art. 311(2) of the Constitution have laid down the test of natural justice in the matter of meetings the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Art. 311(2) prior to the 42nd Amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi-judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case : [1970]1SCR251 the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of material to assist the Enquiry Officer to come to his conclusions. In case his conclusion are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as too punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.
...... ........ ...... ..... .......
15. Deletion of the second opportunity from the schemed of Art. 311(2) of the Constitution of India has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter to imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding complete by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceeding and the series of pronouncement of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position'.
27. It is rightly pointed out by learned counsel for the respondents that the Supreme Court has in that decision clearly stated that the law laid down thereby shall have prospective application only and no punishment imposed already shall be open to challenge on the ground that a copy of the enquiry report was not furnished to the delinquent officer. In paragraph 17, the Court has observed thus : (P. 34)
'17. There have been several decisions in different High Court which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgment in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-Judge Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.'
28. The position is reiterated in S. P. Viswanathan v. Union of India and Ors. : (1992)IILLJ32SC , in which the Supreme Court has held that the decision in Mohd. Ramzan Khan's case (supra) is given a prospective effect and it will not affect the orders passed prior to the date of rendering of that judgment, viz., November 29, 1990.
29. Learned counsel for the respondents points out that under Regulation 7(3) of the Indian Bank Officer Employees (Discipline and Appeal) Regulations, there is no provision for furnishing copy of the enquiry report before the Disciplinary Authority passes an order imposing penalty. Regulation 9 thereof provides that orders made by the Disciplinary Authority under Regulation 7 or Regulation 8 shall be communicated to the officer employee concerned, who shall also be supplied with a copy of the report of inquiry, if any. Thus the Regulations contemplate the supply of the copy of the inquiry report only along with the order of the Disciplinary Authority and not before.
30. Learned counsel for the respondents invites my attention to the law as laid down in Union of India v. Tulsiram Patel 1985- II LLJ 206. He submits that a Constitution Bench of the Supreme Court consisting of five Judges considered the matter in detail and ruled that there was no violation of principles of natural justice if the report of the enquiry officer was not furnished to the delinquent officer and unless the relevant rules of the institution in question contained a provision for furnishing a copy of such report, there was no necessity for the authorities to do so. He has drawn my attention to several paragraphs in the judgment and contends that the ruling in Mohd. Ramzan Khan's case (supra) runs counter to that of the Constitution Bench in Tulsiram Patel's case (supra).
31. In W. P. No. 6247 of 1989 S. Kannan v. Member of the Local Board, state Bank of India, Madras and another : (1990)IILLJ487Mad , I rendered a judgment on November 28, 1989, discussing in detail the law as it stood after the pronouncement of the judgment in Tulsiram Patel's case (supra). After extracting paragraphs 89 and 90 of the judgment in Tulsiram Patel's case (supra), I referred to a later judgment of the Supreme Court in Ram Chander v. Union of India : (1986)IILLJ334SC , in which it was observed as follows (p. 343) :
'It is not necessary for our purpose to go into the vexed question whether a post-decisional hearing is substitute of the denial of a right of having at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case (supra) unequivocally lays down that the only stage at which a government servant gets 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him' i.e., an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved against him are not of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing a departmental appeal.'
I proceeded to refer to the judgment in the Secretary, Central Board of Excise and Customs and other v. K. S. Mahalingam 1986 II LLJ 34 in which the Court held that supplying of a copy of the Enquiry Officer's report to the employee after his dismissal was sufficient compliance with the principles of natural justice. I had also referred to the reiteration of the proposition in Kailash Chander v. State of U. P. : (1988)IILLJ219SC The said judgment of mine was challenged in appeal before Division Bench in W. A No. 1011 of 1989. By judgment dated December 7, 1989, the Division Bench affirmed my order and dismissed the appeal.
32. It is not necessary, however, to go into the question whether the ruling of the Supreme Court in Mohd. Ramzan Khan's case (supra) runs counter to the law laid down in Tulsiram Patel's case (supra) by a Constitution Bench. In so far as this case is concerned, the rule in Mohd. Ramzan Khan's case (supra) does not apply. Hence, there is no substance in the contention that there was failure on the part of the respondents to furnish the petitioner with a copy of the Enquiry Officer's report before the Disciplinary Authority considered the same.
33. The next contention urged by learned counsel for the petitioner is that the petitioner was not permitted to have the assistance of a lawyer during the enquiry. There is no merit in this contention, as it is admitted that the petitioner did not make any request for permitting him to have a lawyer to help him. There is no rule that the respondents should of their own accord direct the petitioner to have the assistance of a lawyer during the enquiry.
34. The last contention put forward is that the punishment of removal from service awarded to the petitioner is wholly disproportionate to the misconduct. It is argued that the petitioner had put in 23 years of meritorious service without any blemish and he had always acted in the interest of the bank. It is contended that the authorities should have taken into account all the circumstances of the case and decided whether it was fair to award the punishment of removal from service.
35. Reliance is placed on the judgment in Bhagat Ram v. State of Himachal Pradesh and others 1983 III LLJ 1. It was held in that case that the finding of the Enquiry Officer was utterly perverse and the penalty of dismissal imposed on such finding was liable to be set aside. It was held that it was open to the Court in such circumstances to give any direction which would not permit a fresh enquiry to be held and the Court could itself impose an appropriate penalty without prolonging the matter.
36. Reliance is placed on the decision in Ranjit Thakur v. Union of India and others : 1988CriLJ158 . Following the ruling in Bhagat Ram's case (supra) it was observed as follows (p. 262) :
'Judicial review generally speaking is not directed against a decision, but is directed against the 'decision making process'. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune form correction. Irrationality and perversity are recognised grounds of judicial review,'
37. In Ashok Kumar v. Union of India and another : (1988)IILLJ344SC , the Supreme Court held that the punishment of termination of service was grossly disproportionate to the charge that the appellant therein had absented himself from duty for three days without leave and accordingly set aside the order of the Central Administrative Tribunal and restored the decree made by the Munsif.
38. in D. V. Kapoor v. Union of India : [1990]3SCR697 , the Court held that the absence of a finding that the delinquent officer committed grave misconduct or guilty of negligence in the discharge of his duty while in office, the imposition of penalty of withholding pension as a measure of punishment either in whole or in part was not sustainable.
39. In Ex. Naik Sardar Singh v. Union of India and others : (1992)IILLJ155SC , it was held that punishment of three months' rigorous imprisonment and dismissal from service of an Army Jawan, who was found to have extra seven bottles of rum within the area under prohibition while going to home town when he had valid permit to carry five bottles from Army Canteen on a chit given by higher authority, was servere, arbitrary and violative of the relevant Section of the Army Act and liable to be set aside.
40. The above rulings do not help the petitioner in the present case. Having regard to the gravity of the charges against the petitioner which are found to be proved, I am of the view that the punishment of removal from service is commensurate to the charges and is in no way disproportionate. In particular when a high official in. Nationalised Bank is found to act in violation of the Rules and Regulations and grant indiscriminately overdrafts and other advances to parties without verifying their capacity to repay and in return for personal favours received by him and puts himself under a personal obligation to such parties by taking loans from them, the interests of the public, whose money is being dealt with by the bank, will be in great jeopardy and such delinquent officials should not be allowed to continue in service. No exception can be taken to the view of the Disciplinary Authority in this case, as the facts and circumstances of the case warrant a severe punishment.
41. In The Management of Sakhigopal Regional Coconut Growers' Co-operative Society Limited v. Choudhury Nilakantha Das and others : (1975)ILLJ259Ori , a Division Bench of the Orissa High Court held that both the parties viz., the employer and the employee had lost trust and confidence in each other and it could be neither for the good of the Society nor for the employee that they should continue as master and servant in the atmosphere of mutual distrust and suspicion. Hence, the Bench refused to sustain the order of reinstatement, while upholding the finding that the employee was discharged without enquiry in violation of the principles of natural justice. The Supreme Court has, however, administered a note of caution in L. Michael and another v. M/s. Johnson Pumps India Ltd. : (1975)ILLJ262SC that the doctrine of loss of confidence can be invoked only if objective test is satisfied and the subjective satisfaction of the employer is not enough. The norms for applying the objective test are laid down in the said case.
42. But, the present case is not of removal from service on the basis of loss of confidence, but on account of clear findings on charges of misconduct against the employee.
43. In O. P. Bhandari v. Indian Tourism Development Corpn. Ltd. and others : (1986)IILLJ509SC the apex Court held that persons holding high level managerial posts constitute a class distinct from other employees and if such persons were considered to be unsuitable because of lack of integrity or unsatisfactory performance, rule for termination of their service on that ground may be followed and it would not offend Articles 14 and 16 of the constitution of India.
44. In Union of India. Parma Nanda : (1989)IILLJ57SC , it has been held that the Administrative Tribunal functioning under the Administrative Tribunals Act is only a substitute to the Civil Court and High Court and it can exercise only such powers which the Courts would have exercised by way of judicial review. Dealing with the question of interfering with the penalty awarded, it is held that the adequacy of a penalty is not a matter for the Tribunal to concern with, unless it is mala fide. The Court also distinguished the ruling in Bhagat Ram's case (supra). The relevant passages in the judgment are as follows (pp. 61-65) :
'18. Form an analysis of Secs. 14, 15, 16, 27, 28 and 29, it becomes apparent that in the case of proceedings transferred to the Tribunal from a Civil Court or High Court, the Tribunal has the jurisdiction to exercise all the powers which the Civil Court could in a suit or the High Court in a writ proceeding could have respectively exercised. In an original proceeding instituted before the Tribunal under Sec, 19, the Tribunal can exercise any of the powers of a Civil Court, or High Court. the Tribunal thus could exercise only such powers which the Civil Court of the High Court could have exercised by way of judicial review. It is neither less nor more. Because, the Tribunal is just a substitute to the Civil Court and High Court. That has been put beyond the pale if controversy by this Court while upholding Constitutional validity of the Act in S. P. Sampat Kumar v. Union of India : (1987)ILLJ128SC .
19. In this backdrop, we consider the main question that we have set out at the begining of the judgment. Mr. Mahajan, learned counself for the Central Government, urged that the Tribunal has no powers to interfere with the punishment imposed by the disciplinary authority on the ground that it is disproportionate to the proved misdemeanour. He also urged that if the proved misdemeanour. He also urged that if the enquiry held against the delinquent officer was proper with the findings supported by evidence then the Tribunal cannot substitute its own judgment to modify the punishment awarded. Mr. Ashri, learned counsel for the respondent, however, justified the discretion exercised by the Tribunal in awarding the lesser punishment. We do not think that we could accept so bold a submission made for the respondent, nor can it be sustained by other consideration. Indeed, the contention for the respondent is unsustainable in view of the decisions of this Court.
20. In state of Orissa v. Bidyabhushan, : (1963)ILLJ239SC the enquiry was conducted against the petitioner on several charges and eventually he was dismissed from service. The Orissa High Court found that the findings on two of the charges were bad being in violation of the principles of natural justice. The findings on the remaining charge were, however, found to be justified. The High Court remitted the matter to the Government for fresh consideration for awarding a proper punishment. The High Court observed :
'That the finding in respect of charges 1(a) and 1(e) should be set aside as being opposed to the rules of natural justice, but the findings in respect of charges 1(c) and 1(d) and charge 2 need not be disturbed. It will be then left to Government to decide whether, on the basis of these charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice.' 21. The Supreme Court reversed this order on the ground that if the dismissal could be supported any finding as to substantial misdemeanour for which the punishment could lawfully be imposed, it was not for the Court to consider whether that ground alone would have weighed with the authority dismissing the public servant. Shah, J. observed (at 248) :
'..... In our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The Constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution of India. But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, is not justifiable nor is the penalty open to review by the court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were 'Unreasonable', the order of the Government on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed, the order of dismissal passed by a competent authority on a public servant, if the conditions of the Constitutional protection have been complied with, is not justifiable. Therefore., if the order may be supported on any finding as to substantial misdemeanour fort which the punishment can lawfully be imposed, it is not for the court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court has no jurisdiction if the finding of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there has been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the governor of Orissa to reconsider the question.' 22. In Dhirajilal Girdharilal v. Commr. of Income-tax, : [1954]26ITR736(SC) , Mehar Chand Mahajan, C.J., while dealing with a reference application against an order of Income-tax Tribunal under the Indian Income-tax Act had struck slightly a different note (at p. 273) :
'The learned Attorney General frankly conceded that it could not be denied that to a certain extent the Tribunal has drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result. He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which finding of fact could be supported. In our opinion, this contention is not well founded. It is well established that when a court of facts as on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving as its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises.' 23. This proposition in Dhirajilal's case (supra) was explained and the statement of law in Bidyadhushan's case (supra) was affirmed in state of Maharashtra v. B. K. Takkamore, : [1967]2SCR583 . It was a case of supersession of the Corporation. The show cause notice issued to the Corporation mentioned two grounds for supersession. One of the grounds was held to be irrelevant. This Court, however, upheld the order of supersession stating that the order cannot be set aside for reason that one of the grounds is found to be non-existent or irrelevant if another ground by itself was serious enough to supersede the Corporation. Bachawat, J. said (p. 1359) :
'The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.' 24. This principle again receives support from the decision in Zora Singh v. J. M. Tandon, : AIR1971SC1537 . There the Chief Settlement Commissioner cancelled the allotment of land made to a person but the High Court allowed the writ petition quashing the order of the Chief Settlement Commissioner and directing him to proceed to decide the case on merits. The Commissioner re-heard the entire case as directed by the Court but came to the same conclusion as before and reaffirmed his earlier decision cancelling the allotment. The person unsuccessfully moved the High Court with a writ petition challenging the order of the commissioner and finally appealed to the Supreme Court. In dismissing that appeal, Shalat, J. made, inter alia, the following observations (at p. 1540) :
'The High Court was right in holding that even if there were amongst the reasons given by the Commissioner, some which were extraneous, if the rest were relevant and could be considered sufficient, the Commissioner's conclusions would not be vitiated. The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons true out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari, the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence. There was, in our view, legal evidence before the Commissioner upon which he was entitled to rest his finding that the copies relied on by the appellant were not genuine.' 25. The view taken in Bidyabhushan case (supra) has been repeatedly affirmed and reiterated in Railway Board v. Niranjan Singh, : (1969)IILLJ743SC , O. P. Gupta case, : AIR1970SC679 and Union of India v. Sardar Bahadur, : (1972)ILLJ1SC . Any doubts as to the incapacity of the Court to review the merits of the penalty must vanish when we read the remarks of Mathew, J., in Sardar Bahadur's case (p. 6) :
'A disciplinary proceeding is not a criminal trial. The standard or proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was person likely to have official dealings with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Art. 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.' The learned judge also said (at p. 7)
'Now it is settled by the decision of its Court is State of Orissa v. Bidyabhushan Mohapatra : (1963)ILLJ239SC that if the order of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour established.' 26. So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribunal. However, of late we have been receiving a large number of appeals from the orders of Tribunals-Central and States-complaining about the interference with the penalty awarded in the disciplinary proceedings. The Tribunals seem to take it within their discretion to interfere with the penalty on the ground that it is not commensurate with the delinquency of the official. The law already declared by the Court, which we reiterate, makes it clear that the Tribunals have no such discretion or power.
27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or rules made under the proviso to Articles 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice, what punishment would meet the ends of the justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty, unless it is mala fide, is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer of the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.'
45. In view of the categorical statement of law, there can be no doubt whatever that this Court cannot, while exercising its jurisdiction under Article 226 of the Constitution of India, interfere with the punishment of removal from service, particularly in view of the findings of facts on the charges made against the petitioner.
46. In the result, the writ petition fails and it is dismissed. In view of the circumstance that the petitioner has been out of service from 1983, there will be no order as to costs.