2020 (4) TMI 636 - HC - Indian Laws

Rejection of order of dismissal from the civil services passed by the disciplinary authority - HELD THAT - It is a case wherein the petitioner has been provided with opportunity of hearing, he has been provided with an opportunity to cross examine the witnesses, basis upon which in the first enquiry report the charges having not been found to be proved but in the second enquiry report three charges have been found to be proved - This Court is of the view that since the fact finding has been recorded by the second enquiry officer, basis upon which the order of punishment of dismissal from services has been passed which has been affirmed by the appellate forum, but, the appellant/writ petitioner has failed to point out any infirmity in the decision making process, warranting this Court to interfere with the charges or the finding recorded by the enquiry officer and therefore, this Court is not inclined to interfere with the same in exercise of power of judicial review by appreciating the evidence otherwise, this Court will be said to be a Court of appeal as has been held by the Hon ble Apex Court hereinabove. This Court is not interfering with the finding recorded by the enquiry officer but interfering with the quantum of punishment of dismissal from services by quashing and setting it aside - In consequence thereof, the order passed by the disciplinary authority and the appellate authority are quashed to the extent of quantum of punishment. The matter is remitted before the disciplinary authority to take fresh decision on the quantum of punishment within a period of three months from the date of receipt of copy of the order - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Procedural lapses in the appointment of a second enquiry officer.
2. Proportionality of the punishment of dismissal from service.
3. Scope of judicial review under Article 226 of the Constitution of India.

Detailed Analysis:

1. Procedural Lapses in the Appointment of a Second Enquiry Officer:
The appellant was initially exonerated by the first enquiry officer who found no charges proven. However, the Judicial Commissioner, Ranchi, dissatisfied with this finding, appointed a second enquiry officer. The second enquiry officer found some charges proven, leading to the appellant's dismissal. The appellant argued that appointing a second enquiry officer was impermissible after exoneration by the first. The court, however, did not find any procedural lapses warranting interference, referencing the judgment in *K.R. Deb vs. The Collector of Central Excise, Shillong*.

2. Proportionality of the Punishment of Dismissal from Service:
The appellant contended that the charges proven did not warrant the extreme punishment of dismissal. The court examined the charges:
- Absence from duty and allowing his son to perform his duty.
- Illegal construction in government quarters.
- Non-disclosure of pending criminal cases under the Negotiable Instruments Act, which were compounded.
The court noted that while these charges were serious, the punishment of dismissal, which forfeited the appellant's 23 years of service, was disproportionate. The court referenced the *Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935*, which provided other punishments such as compulsory retirement, and found that these should have been considered.

3. Scope of Judicial Review under Article 226 of the Constitution of India:
The court reiterated the limited scope of judicial review under Article 226, as established in *Union of India vs. P. Gunasekaran* and *Management of State Bank of India vs. Smita Sharad Deshmukh*. The court should not reappreciate evidence or act as an appellate authority. However, it can interfere if the punishment is found to be grossly disproportionate to the charges proven. The court found that the learned Single Judge did not err in not interfering with the merits of the charges but did err in not considering the proportionality of the punishment.

Conclusion:
The court upheld the findings of the second enquiry officer but quashed the order of dismissal, directing the disciplinary authority to reconsider the quantum of punishment within three months. The appeal was disposed of accordingly.