K.Hamza v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE HARISH TANDON AND HON'BLE JUSTICE RAI CHATTOPADHAYAY WP.CT/32/2023 K. HAMZA ... PETITIONER

VERSUS

THE UNION OF INDIA AND OTHERS ... RESPONDENTS For the petitioner : Ms. Anjili Nag For the respondents : Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on : 22.09.2023 & 25.09.2023, 26.09.2023 Judgment on : 29.09.2023 HARISH TANDON, J.

1.

The judgment and order dated 28th April 2023 passed by the Central Administrative Tribunal, Kolkata Bench in OA/116/2016 by which the application filed by the petitioner assailing the order of the Appellate Authority affirming the decision taken by the Disciplinary Authority for dismissal from service, is assailed in this instant writ petition.

2.

The Disciplinary proceeding was initiated against the petitioner on the basis of the office order dated 10/14th July, 2009 primarily on the three Article of charges namely: Article of Charge -I "Shri K. Hamza, Forest Guard, while functioning as Beat Officer, Namunaghar has failed to prevent the commission of forest offence and abetted/connived in the illegal extraction of 26 trees (80-580 cum) from inside the Port Mout - Brindaban Reserved Forests Block-I near Namunaghar Village. The said illegally extracted timber excluding 25 logs 12.668 cum i.e. 50.580 ( -) 12.668 = 67.912 cum was permitted to be removed and transported to different saw mills and other destinations either without transit pass or under the cover of counterfeited/forged/fake transit passes after affixing Government hammer mark or cog numbers with numbering cog set. The total value of 67.912 cum of timber illegally extracted and removed from the said Reserved Forests is Rs.3,36,209/- (Rupees three lakhs thirty six thousand two hundred nine only).

Thus, Shri K.Hamza, Forest Guard by his above act exhibited lack of integrity, dereliction of duty, lack of devotion to duty and conducted himself in a manner unbecoming of a public servant violating the provision of Rule 3 of C.C.S (Conduct) Rules, 1964."

Article of Charge -II "Shri K. Hamza, Forest Guard, while functioning as Beat Officer, Namunaghar has abetted/connived in the illegal felling of 20 trees 30.251 cum from within the Port Mout -

Brindaban Block-I Reserved Forests near Namunaghar Village.

Thus, Shri K.Hamza, Forest Guard by his above act exhibited lack of integrity, dereliction to duty, lack of devotion to duty and conducted himself in a manner unbecoming of a public servant violating the provision of Rule 3 of C.C.S (Conduct) Rules, 1964 Article of Charge -III "Shri K. Hamza, Forest Guard, while functioning as Beat Officer, Namunaghar has issued /caused to be issued counterfeited/ forged/ fake/ manipulated transit passes for transportation of illegally extracted logs from the allotted land of Shri Mohammed Khan S/o Late Khan Bahadur, R/o Namunaghar as well as from the Port Mout - Brindaban Reserved Forest Block-I to different Saw Mills. Thus, Shri K.Hamza, Forest Guard by his above act exhibited lack of integrity, dereliction to duty, lack of devotion to duty and conducted himself in a manner unbecoming of a public servant violating the provision of Rule 3 of C.C.S (Conduct) Rules, 1964."

3.

The enquiry was conducted, after giving an opportunity to the petitioner to defend the same and ultimately the enquiry officer held that so far as the charges framed against the petitioner in article of charges 1 and 3 are proved but the department could not prove the second article of charge. 4.

What emerged from the aforesaid fact discern from the record that the allegations against the petitioner that while functioning as Beat Officer, Namunaghar, he has

abetted/connived in illegal felling of two trees from Port Mout - Brindaban Block No.I Reserved Forest situated near Namunaghar Village thereby exhibiting lack of integrity, dereliction of duty, lack of devotion and conducting himself in a manner of unbecoming of a public servant 5.

The Disciplinary Authority accepted the report of the enquiry officer and imposed the major penalty by dismissing the petitioner from service. The petitioner has assailed the said order of the Disciplinary Authority by filing a statutory appeal which could not yield favourable result. The order of the Appellate Authority was assailed before the Tribunal in OA/153/AN/2009, which was disposed of on 25th April, 2012. 6.

Ultimately the matter travelled to the High Court in filing a writ petition wherein the order of the Disciplinary Authority was quashed so also the order of the Appellate Authority and direction was passed to initiate a fresh departmental proceeding against the petitioner on a material already collected by the department. The order of the High Court was assailed by the Supreme Court by filing Special Leave Petition where the matter was remitted to the Disciplinary Authority to take a fresh decision from the stage after enquiry was completed on the basis of the enquiry in respect of the article of charge I and II, after giving an opportunity to the parties of being heard.

7.

The Apex Court further directed that the petitioner shall be placed under suspension upon reinstating him in service with effect from 24.04.2000. On remand, Disciplinary Authority, after giving an opportunity of hearing was found the petitioner guilty of the aforesaid charges and the Disciplinary Authority imposed the major penalty dismissing the petitioner from service.

8.

The said order was assailed before the Appellate Authority, who affirmed the order of the Disciplinary Authority. The said order was further challenged in OA/152/2013 before the Central Administrative Tribunal and was disposed of on 2nd June 2015 quashing and setting aside the order of the Appellate Authority as the same was not in consonance of Rule 27 of CSS(CCA) Rules. The Tribunal remanded the matter to the Appellate Authority to issue a fresh order strictly in terms of the provisions contained in Rule 27 of the CCS(CCA)Rules.

9.

Pursuant to the said order the Appellate Authority by an order dated 20.11.2015 disposed of the said appeal concurring with the view of the Disciplinary Authority and on upon elaborate discussion on the various facts emerged during the disciplinary proceeding the article of charge no. I and III has been proved against the petitioner.

10. The said order is assailed by the petitioner in OA/116/2016 and by the impugned order, the Tribunal dismissed the same which is assailed in the instant writ petition.

11. The facts, as enumerated hereinabove, as unfurled, would reveal that out of the three article of charges initially framed against the petitioner, 2nd article of charge was not found to have been proved by the enquiry officer and in fact the Disciplinary Authority proceeded on the 1st and 3 article of charges which relate to the issuance of duplicate transit pass allegedly by the petitioner in connivance with the Camp Officer.

12. Ms. Anjili Nag, learned advocate for the petitioner is very much critical on the role of the enquiry officer and the decision arrived by him in arriving at the conclusion that the aforesaid of charges have been proved against the petitioner.

13. According to her, the prime witness i.e. Ramchander did not, in unequivocal terms, depose that the signature appearing on the duplicate/counterfeit transit pass contained the signature of the petitioner and therefore, the conclusion arrived by the enquiry officer that the aforesaid signature is proved, is perverse and liable to be interfered with.

14. She further submits that the moment there is a doubt having created on the basis of the deposition of the prime witness in respect of the signature allegedly put by the petitioner, the safest course which could have been adopted is to examine such signature by an expert and having not done so, the authorities could not have arrived at a conclusive opinion that such signature appended on the duplicate/counterfeit transit pass is of the petitioner and placed reliance upon a Division Bench of Telengana High Court reported in the case of G.Sudhakar Reddy vs. The State of Telengana reported in 2020(3)SLR 790.

She further submits that though the departmental proceedings are decided on a preponderance of probability and not on the basis of a Doctrine of Proof beyond doubt, there must be a positive evidence in this regard and the Disciplinary Authority cannot proceed on the basis of surmises and conjecture and placed reliance upon a decision of the Supreme Court in the case of Nirmala J Jhala vs. State of Gujarat and another reported in (2013) 4 SCC 301 and M.V.Bijlani vs. Union of India and others reported in (2006) 5 SCC 88.

15. According to Ms. Nag, the said prime witness did not say categorially that the signature appended on the said duplicate/counterfeit transit pass is of the petitioner and, therefore, the authority cannot arrive at the conclusion that he

has proved such signature. Lastly, Ms. Nag submits that the petitioner has unblemished service career and there is no single incident relating to dereliction of discharge of duties and therefore the major punishment inflicted by the petitioner is excessive and not in commensurate with the charges allegedly proved against the petitioner and placed reliance upon a decision of the Apex Court in the case of Dev Singh vs. Punjab Tourism Development Corporation Limited reported in (2003) 8) SCC 9.

16. On the other hand, Mr.Chakarborty, learned advocate appearing for the respondents submits that both the Enquiry Officer as well as the Disciplinary Authority being the fact finding authority arrived at the conclusion that the aforesaid Article of Charges have been proved by the cogent evidence and, therefore, the Court should not interfere with such concurrent findings based on some evidence.

17. It is further submitted that the power of judicial review has to be exercised within the limited parameters and not as a court of appeal and placed reliance on the judgment of the Apex Court in B.C.Chaturvedi vs. Union of and India and others reported in (1995) 6 SCC 749.

18. It is further submitted that the disciplinary proceedings are decided on preponderance of probability and the concept of proof beyond reasonable doubt has no manner of application.

It is further submitted that the fact finding authorities have arrived at the conclusion on the basis of evidence and/or deposition of the witnesses and even if another interpretation or a view is possible that itself cannot be a ground to exercise the power of judicial review. He thus submits that both the Article of Charges are held to have been proved, there is a little scope of interference with the said order.

19. On the conspectus aforesaid facts and the submission advanced by the respective counsel, we feel that before proceeding to deal with the case on merit, it would be relevant to recapitulate the law applicable in this regard.

20. In B.C.Chaturvedi (supra), the Apex Court was considering a case where the Charged Officer (CO) was found during the investigation conducted by the CBI to have possessed the assets which is disproportionate to his known source of income. There was no strong evidence produced by the Presenting Officer (PO) sufficient enough to lay the prosecution under the Prevention of Corruption Act (PCA) but the disciplinary proceeding was initiated and the Enquiry Officer in his report held that the charges against the Charged Officer (CO) have been proved and ultimately the Disciplinary Authority inflicted the major punishment of dismissal from service.

21. However, the Tribunal held that the major punishment is not proportionate to the alleged charges and converted the decision of the dismissal from service into compulsory retirement. The Charged Officer filed an appeal challenging the finding of the Tribunal inflicting punishment of compulsory retirement and simultaneously the Union of India has also filed an appeal challenging the self-same order, more particularly, against the conversion of an order of dismissal into a compulsory retirement. Ultimately the High Court did not interfere with the order and the matter approached to the Apex Court. In the backdrop of the aforesaid fact, the Apex Court held - "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.

Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding.

When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge.

evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

22. In the said report, another point arose as to whether the punishment imposed by the Disciplinary Authority can be interfered with by the High Court or Tribunal, as the case may be, exercising the writ jurisdiction. The Apex Court held that though the High Court does not function as a court of appeal, except where the High Court finds that the findings arrived by the fact finding authorities are utterly perverse, the decision has been arrived by violating the principle of natural justice. There is not fetter on the part of the High Court to interfere that the penalty imposed by the Disciplinary Authority if it shocks to the conscience of the Judge that the said penalty is

excessive and not in commensurate with the gravity of the charges leveled against the Charged Officer in the following: "17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final.

The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur. It is true that in Bhagat Ram v. State of Himachal Pradesh, a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same.

In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu, a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court.

while exercising the jurisdiction under Article 136 of the Constitutions, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority.

alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India case, where the court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment."

23. Since interference was made to a quantum of penalty imposed by the Disciplinary Authority by converting the dismissal into a compulsory retirement solely on the ground that the said Charged Officer has put thirty years of his service having a brilliant record and may not at the fag-end of the service career get in another employment which was found by the Apex Court unreasonable and not a factor for invoking the power of judicial review in the following:

"19. The Tribunal in this case held that the appellant had put in 30 years of service. He had brilliant academic record. He was successful in the competitive examination and was selected as a Class I Officer. He earned promotion after the disciplinary proceeding was initiated. It would be difficult to get a new job or to take a new profession after 50 years and he is "no longer fit to continue in government service". Accordingly, it substituted the punishment of dismissal from service to one of compulsory retirement imposed by the disciplinary authority. We find that the reasoning is wholly unsupportable. The reasons are not relevant nor germane to modify the punishment. In view of the gravity of the misconduct, namely, the appellant having been found to be in possession of assets disproportionate to the known source of his income, the interference with the imposition of punishment was wholly unwarranted. We find no merit in the main appeal which is accordingly dismissed with no order as to costs."

24. In a subsequent decision rendered by the Supreme Court in the Case of Nirmala J. Jhala (supra) the Apex Court considered various aspects touching upon the power of judicial review to be exercised by the High court in a disciplinary proceeding matter. It is held that the disciplinary proceeding is in the nature of quasi-criminal and therefore standard of proof varies from the standard of proof required in the criminal trial. However, the court may interfere if the finding returned by the fact finding authority is based on no evidence or omits or refuse to consider the relevant facts.

25. There is no quarrel to the proposition that the test of proof varies from a criminal trial where the concept of proof beyond reasonable doubt is applicable. In case of a disciplinary proceeding, the fact finding authorities are the last word of the facts discerned in course of an enquiry and if the possible interpretation is made in this regard, the Court should seldom interfere with such findings except when such finding is based on no evidence or refusal or omits to consider the relevant evidence or the facts finding authorities have violated the principle of natural justice. So far as the scope of judicial review is concerned, the Apex Court in the above noted decision succinctly laid down the same in the following : "III. Scope of Judicial Review :

(i) It is settled legal proposition that judicial review is not akin to adjudication on merit by re-appreciating the

evidence as an Appellate Authority.

The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.

(Vide:

State of T.N.

& Anr v.

S.

Subramaniam, 1996(2) S.C.T 191:AIR 1996 SC 1232; R.S. Saini v. State of Punjab, 1999(4) RCR (Civil) 253:(1999) 8 SCC 90; and Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, 2006(1) S.C.T 588: AIR 2006 SC 1214) (ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537, this Court while dealing with the issue of scope of judicial review, held as under:

"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 facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn 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."

(Emphasis added) (iii) The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the

decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere.

The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision-making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene.

IV. Punishment in corruption cases:

In Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., 1996(2) S.C.T. 508: AIR 1996 SC 1249, this Court held as under:

"In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."

In Divisional Controller N.E.K.R.T.C. v. H. Amaresh, 2006(3) S.C.T 582; AIR 2006 SC 2730, this court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal.

Similar view has been reiterated in U.P.S.R.T.C. v. Vinod Kumar, 2008 (1) S.C.T.158: 2007(6) Recent Apex Judgements (R.A.J) 619: (2008) 1 SCC 115; and U.P. State Road Transport Corp. v. Suresh Chand Sharma, 2010(3) S.C.T.197: (2010) 6 SCC 555."

26. However, an identical issue has been expressed in an earlier decision in the case of M.V.Bijlani (supra) in the following :

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

27. However, the Division Bench of the Telengana High Court in G.Sudhakar Reddy (supra) held that when the question arose as to the signature appended on the official documents, it would be a safe course to take an aid of an expert before the fact finding authorities have arrived at the conclusion that the said signature is of the Charged Officer in the following: "80(iv) P.

Narasimha, the Camp Clerk of the Office of the DIG, who had deposed as PW3 in the Criminal Court was examined as PW1 in the disciplinary enquiry; that the evidence of PW1 is the main basis of the enquiry report of the enquiry officer in the disciplinary enquiry; No explanation is offered by this witness how he received the ACRs from the accused in the first week of February, 2004 when the personal file of the petitioner was, even according to the prosecution witnesses in the Criminal Case, with Commissioner of Police till 17.2.2004 on which date it was sent to DIG office ( it would be impossible for the petitioner to do what he is alleged to have done); and how without any prior acquaintance with petitioner, he received them and inserted them in petitioner's personal file.

would be aware of this. No expert witness was examined in the disciplinary enquiry to state that he compared the signatures of the superior officers with those of the subject ACRs for the relevant periods and that he found them to be forgeries."

28. It leads to an another question as to when the Court can interfere with the punishment even when the charges have been somewhat proved against the delinquent in Dev Singh(supra) wherein it is held - "6. Applying the said principles laid down by this Court in the cases noted herein above, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was levelled against him. The charge itself shows that what was alleged against the appellant was of a misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration.

A reading of the charge sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion a deterrent punishment was called for.

Forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file importance or sensitiveness of which was not mentioned in the charge sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service By- laws applicable to the Corporation under Service By-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said By-laws should be awarded on the facts of the present case.

which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. Hence, having considered the basis on which the punishment of dismissal was imposed on the appellant and the facts and circumstances of this case, we think to avoid further prolonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowance payable upto the date of the dismissal order."

29. The law emerged from the above noted decision is that the scope of judicial review is very limited in a disciplinary proceeding as the Court does not act a court of appeal nor the provisions of the Evidence Act strictly apply thereto. The judicial proceedings are decided on a preponderance of probability and if the fact finding authorities have found some evidence in the support of the charges and arrived at the conclusion that the same has been proved, there is a little scope for interference by the Court exercising judicial review jurisdiction. The fact finding authorities must consider all relevant facts or the evidence in support of proving the charges as non-consideration of the same, may result in violation of the principle of law. The finding arrived by the fact finding authorities should be based on some facts and must withstand on the test of what a prudent person would have done. The adherence of principles of natural justice or the

statutory provisions of law applicable with regard to the initiation and conduct of the disciplinary proceeding are to be strictly adhered to.

30. The aforesaid grounds are some of the illustrations and cannot be considered as exhaustive. The exercise of power of judicial review depends upon the facts of each cases and the manner in which the fact finding authorities have arrived at the decision in proving the charges and imposition of major penalty in commensurate therewith.

31. Reverting to the facts in the instant case, admittedly out of three Article of Charges, only the Article of charges 1 and 3 were held to have been proved against the petitioner and the Article of Charge No.2 was found to not have been proved. Even the Apex Court in an unequivocal term held that the Disciplinary Authority should consider the matter in respect of those charges which have been proved after giving an opportunity of hearing to the delinquent officer.

32. At the very outset we must record that while returning the finding, the Disciplinary Authority have not only taken into account the large scale of illegality involving cutting of commercial trees in the allotted revenue land as well as reserved forest but the presence of logs illegally transported in the mills premises establishes the illicit cutting with proper

understanding to its disposal for commercial gain in the following:

"XV. By the deposition made by the prosecution witnesses and the submission of other documents, the prosecution side has established that there has been large scale illegalities involving cutting of commercial trees in allotted revenue land as well as Reserved Forests. The seizure of logs in the forests, in the mills premises and in allotted land given material evidence for such illegality. Presence of logs illegally transported in the mill premises further establishes that the illicit cutting has been done with proper understanding in its disposal by private saw mill for commercial gain."

33. The aforesaid findings have been reiterated by the Appellate Authority which appears to have been the foundation of the decision having taken in the disciplinary proceeding. It is important to note that the second article of charge, as quoted herein above, was in relation to illegally felling of 20 trees within the Port Mout-Brindaban Block-I Reserved Forests which was found to have not proved by the Enquiry Officer neither Article of Charge -I nor Article of Charge -III imbibe within itself the aforesaid allegations as findings were relating to the illegally removal and transportation of several trees from inside the said reserved forest and issuance of forges/fake/manipulated transit pass for transportation of such illegally extracted logs from the allotted lands of one Mohammed Khan.

34. The Apex Court categorically held that the Disciplinary Authority shall restrict its consideration on the evidence

proved in relation to the aforesaid two Article of Charges and, therefore, it appears that both the Disciplinary Authority as well as Appellate Authority have exceeded beyond the jurisdiction and powers conferred upon them in this regard.

35. It admits no ambiguity that the power of judicial review is not exercised as to whether the decision is correct but interference is warranted on a decision making process. However, we further find that apart from the same, the authorities have further proceeded to deal with the evidence adduced by the respective witnesses on issuance of the illegal counterfeit transit pass and held that the prime witness i.e. Ramchander has proved the signature appended thereupon.

36. Both the Camp Officer well as the petitioner have been charged and a separate disciplinary proceedings were initiated and in course of hearing, it is brought to our notice that the Camp Officer has also been found guilty of dereliction in discharge of duty and imposed with a penalty of dismissal.

37. Be that as it may, the only evidence relied upon by the State is an answer to question nos.6 & 11 which are depicted below:

Q.No.6 - Do you have anything to say after seeing the document as above?

Ans.

It looks in TPs bearing Nos.07233, 97234, 97235, 97239, 97240, the Forest Guard Shri Hamza has signed.

Q.No.11 In how many TPS have noticed that Shri Hamza has signed?

Ans.

4 or 5 TPs, he might have signed.

38. Apart from the aforesaid questions and answers given by the said primate witness, none of the other witnesses have categorically deposed that the signature appended on the aforementioned transit passes bear the signature of the delinquent. Both the Enquiry Officer and the Disciplinary Authority held that the aforesaid evidence clearly proves that the petitioner has been instrumental in issuing the forge/counterfeit transit pass and inflicted the penalty by dismissing him from service.

39. As indicated above, the moment the fact finding authorities have arrived at the conclusion that the signature appended on the aforesaid transit pass is of the petitioner which cannot be held to be perverse as the strict provision of the Evidence Act does not apply to the disciplinary proceeding, therefore it also cannot be said that there was no evidence against the petitioner in this regard.

40. Even if there is a possibility of arriving at the conclusion that in absence of positive evidence forthcoming proving the signature conclusively yet, such finding is based on preponderance of probability as the authorities found that the petitioner was entrusted with the duty not only protecting the

illegal extraction of trees from the reserved forests but also has some role in issuance of the transit pass. The fact finding authorities have further arrived at the conclusion that there is variance in recording the description of logs and quantity in the original transit passes and the duplicate transit passes. It cannot be ruled that the petitioner has some nexus or role and therefore we do not think that such concurrent finding of facts arrived by the authorities needs interference.

41. It leads to another question whether the penalty imposed is in commensurate with the quality of the evidence adduced before the fact finding authority. It is no longer re integra that the court may interfere with the quantum of penalty if it shocks to its conscience based on the acts discerned in case of the judicial dispensation.

42. The Apex Court in B.C.Chaturvei (supra) has deprecated the interference on the quantum of punishment solely on the ground that the delinquent has unblemished record is at the fag-end of service career which would disentitled him to get new job as a ground for interference in this regard. However, the Apex Court in case of Dev Singh (supra) in a subsequent decision held that when there is doubt as to the direct role of delinquent in relation to the commission of the charges leveled against him and if the fact finding authorities have been guided by certain facts which does not emanate from the

records, there is no fetter on the part of the court in interfering with the quantum of punishment.

43. As indicated above, the process by which the decision has been arrived appears to us to have been founded primarily on the allegation of illegal felling of trees and untimely intervention by the delinquent for which the second Article of Charges was framed which was not found to have been proved. If the Apex Court in an unequivocal terms observed that the Disciplinary Authority shall confine its jurisdiction on the first and third Article of Charges and not on second Article of Charge, therefore, such being a consideration in the handsight in the mind of the Disciplinary Authority appears to be unreasonable if there was weak piece of evidence, though relied upon by the fact finding authorities to be a conclusive proof in relation to a signature having appended on the said fake/counterfeit transit pass.

44. In view of the above, we feel that the punishment inflicted by the Disciplinary Authority is excessive and too harsh and not in commensurate with the materials based on record and therefore, the decision of major penalty by way of dismissal from service is quashed and set aside.

45. The matter is remitted to the Disciplinary Authority to take a informed decision afresh on the imposition of any of the minor penalty contemplated under the relevant Rules and the

entire exercise shall be completed within eight weeks from the date of communication of this order.

46. With the above observations and directions, the writ petition is, thus, disposed of.

47. No order as to costs.

48. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

( HARISH TANDON, J.) I agree.

(RAI CHATTOPADHAYA, J.)