UNION OF INDIA AND OTHERS versus SUBRATA NATH

[2022] 18 S.C.R. 605

UNION OF INDIA AND OTHERS

SUBRATA NATH

(Civil Appeal Nos.7939-7940 of 2022)

NOVEMBER 23, 2022

[DR. DHANANJAYA Y. CHANDRACHUD, CJI ANDHIMA KOHLI J.]

Service Law: Central Industrial Security Force Rules, 2001 :r.32 – Disciplinary Authorities – Local police intercepted truckloaded with copper wires outside the port premises and informedCISF that the copper wires had been removed from the scrap Port,in the duration when the respondent-constable was on duty –Respondent placed under suspension and charge sheeted for theact of negligence and various delinquencies – Disciplinary Authorityimposed penalty of dismissal from service, which was confirmedby appellate and revisional authority – High Court converted thepunishment of dismissal to compulsory retirement – Division Benchdirected reinstatement of the respondent with full back wages andfurther directed the disciplinary authority to issue fresh order ofpunishment in respect of the respondent in commensurate to hisnegligence and dereliction of duty – On appeal, held: Being factfinding authorities, both the Disciplinary Authority and theAppellate Authority are vested with the exclusive power to examinethe evidence forming part of the inquiry report – On finding theevidence to be adequate and reliable during the departmentalinquiry, the Disciplinary Authority has the discretion to imposeappropriate punishment on the delinquent employee keeping in mindthe gravity of the misconduct – In exercise of powers of judicialreview, the High Court/tribunal cannot ordinarily re-appreciate theevidence to arrive at its own conclusion in respect of the penaltyimposed unless and until the punishment imposed is sodisproportionate to the offence that it would shock the conscience– Both the Single Judge as well as the Division Bench, erred bysetting aside the order of dismissal from service imposed on therespondent, thus, the judgment passed by the High Court is set aside,while that of the Disciplinary Authority as upheld by the AppellateAuthority and the Revisional Authority is restored.

ADisposing of the appeals, the Court

HELD: 1.1 It is well settled that courts ought to refrainfrom interfering with findings of facts recorded in departmentalinquiry except in circumstances where such findings are patentlyperverse or grossly incompatible with the evidence on record,Bbased on no evidence. However, if principles of natural justicehave been violated or the statutory regulations have not beenadhered to or there are malafides attributable to the DisciplinaryAuthority, then the courts can certainly interfere. [Para 15][615-

C1.2 Being fact finding authorities, both the DisciplinaryAuthority and the Appellate Authority are vested with theexclusive power to examine the evidence forming part of theinquiry report. On finding the evidence to be adequate and reliableduring the departmental inquiry, the Disciplinary Authority hasthe discretion to impose appropriate punishment on theDdelinquent employee keeping in mind the gravity of themisconduct. However, in exercise of powers of judicial review,the High Court or for that matter, the Tribunal cannot ordinarilyreappreciate the evidence to arrive at its own conclusion inrespect of the penalty imposed unless and until the punishmentEimposed is so disproportionate to the offence that it would shockthe conscience of the High Court/Tribunal or is found to be flawedfor other reasons. [Para 22][621-B-D]1.3 The approach of the Single Judge and the Division Benchcannot be accepted. There was no good reason for the High CourtFto have entered the domain of the factual aspects relating to theevidence recorded before the Inquiry Officer. This was clearlyan attempt to reappreciate the evidence which is impermissiblein exercise of powers of judicial review vested in the High Courtunder Article 226 of the Constitution of India. Both, the SingleJudge as well as the Division Bench, fell into an error by settingGaside the order of dismissal from service imposed on therespondent by the Disciplinary Authority and upheld by theAppellate Authority. [Para 28][623-G-H; 624-A]

1.4 The findings returned by and conclusion arrived at bythe Disciplinary Authority, duly confirmed by the AppellateH

Authority and upheld by the Revisional Authority in respect ofboth the Articles of Charge levelled against the respondent andthe punishment imposed on him is accepted. The respondentbeing member of the disciplined force, was expected to havedischarged his duty diligently. His gross negligence anddereliction of duty has resulted in theft of 800 kgs. copper wiresfrom the spot where he was performing his duty. Further, therecords reveal that the respondent did not mend his ways duringthirteen years of service rendered by him and was awarded eightpunishments for various delinquencies out of which, threepunishments included stoppage of increment on two occasionsfor one year without cumulative effect twice and stoppage ofincrement for two years without cumulative effect on one occasion.In such circumstances, the desirability of continuing therespondent in the Armed Forces is certainly questionable andthe Disciplinary Authority could not be expected to wear blinkersin respect of his past conduct while imposing the penalty ofdismissal from service on him. [Para 29][624-B-D]

1.5 It is deemed appropriate to quash and set aside theimpugned judgment while restoring the findings and theconclusion arrived at by the Disciplinary Authority upheld by theAppellate Authority and endorsed by the Revisional Authority.The penalty of dismissal from service imposed on the respondentis commensurate with the gross negligence and dereliction ofduty on his part. [Para 30][624-E-G]

B.C. Chaturvedi v. Union Of India and Others (1995) 6SCC 749 : [1995] 4 Suppl. SCR 644; State Of OrissaAnd Others v. Bidyabhushan Mohapatra AIR 1963 SC779 : [1963] 1 Suppl. SCR 648; Central IndustrialSecurity Force And Others v. Abrar Ali (2017) 4 SCC507; State Bank Of Bikaner And Jaipur v. Nemi ChandNalwaya (2011) 4 SCC 584 : [2011] 3 SCR 589;Chairman & Managing Director, V.S.P. And Others v.Goparaju Sri Prabhakara Hari Babu (2008) 5 SCC569 : [2008] 3 SCR 1184; Union Of India and OthersV. P. Gunasekaran (2015) 2 SCC 610 : [2014] 13SCR 1312; Union Of India And Others v. Ex. Constable

ARam Karan (2022) 1 SCC 373; Union Of India v. SardarBahadur (1972) 4 SCC 618 : [1972] 2 SCR 218 –referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7939-7940 of 2022.

From the Judgment and Order dated 09.09.2021 of the High CourtDof Calcutta in FMA No. 679 of 2019 with FMA No. 680 of 2019.

With

Civil Appeal No.7941-7942 Of 2022

Rameshwar Prasad Goyal, Ms. Aakanksha Kaul, Rajan KumarEChourasia, Ms. Nidhi Khanna, Raghav Sharma, Arvind Kumar Sharma,Ranjan Mukherjee Advs. for the appearing parties.

The Judgment of the Court was delivered by

HIMA KOHLI, J.

F1-2 By this order, we propose to decide two appeals preferred bythe Union of India and the connected appeals preferred by the privaterespondent against the common judgment and order dated 9[th] September,2021 passed by the Division Bench of the High Court at Calcutta inFMA No.679 of 2019 and FMA No. 680 of 2019.

G3. For the sake of convenience, the facts stated in the Civil Appealsshall be referred to. The respondent joined the Central Industrial SecurityForce[1] as Constable on 26[th] February, 1994. On 7[th] November, 2007,the respondent was detailed for ‘C’ shift duty from 21:00 hours on7[th] November, 2007 to 05:00 hours on 8[th] November, 2007 at Alif Nagar

H1 For short ‘CISF’

Scrap yard situated in the Garden Reach area of the Kolkata Port. Onthe next day, i.e., on 8[th] November, 2007, the local police intercepted aTata-407 truck loaded with approximately 800 kg. (approx.) of copperwires outside the port premises and informed the CISF about the saidincident on learning that the copper wires had been removed from theKolkata Port Trust area. It transpired that the said copper wires hadbeen removed from the scrap yard of Alif Nagar Kolkata Port in theduration when the respondent was on duty. The respondent was placedunder suspension and charge sheeted, vide Memorandum dated 7[th]December, 2007. Following are the two articles of charge framed againstthe respondent:

“STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINSTNO. 941400817 CONSTABLE SUBRATA NATH OF CISF UNITKoPT KOLKATA.

Article of Charge- I

That the said No.941400817 Constable Subrata Nath ofCISF Unit KoPT Kolkata (“C” Coy) while perforating “C” Shiftduty from 2100 hrs on 07.11.2007 to 0500 hrs on 08.11.2007 atAlif Nagar Scrap Yard with Arms and Ammunition has failed toprevent theft of copper wire weighing about 800 Kgs which werelaying with other bundles of copper wire at Alif Nagar Scrap Yardof KoPT under the security coverage of the said No. 941400817Constable Subrata Nath.

The above act on the part of No. 941400817 ConstableSubrata Nath amounts to gross negligence and dereliction of dutybeing member of disciplined Force.

Article of Charge-II

That the said No. 941400817 Constable Subrata Nath ofCISF Unit KoPT Kolkata during the period of his 13 years sendeein CISF has been involved himself in various delinquencies andthereby awarded 08 (Eight) punishments. Even then he did notmend himself and has developed an incorrigible character.”

4. An Inquiry Officer was appointed to conduct the inquiry inrespect of the above charges. During the inquiry, eight prosecutionwitnesses were examined. However, the respondent did not produceany witness in his defence. After examining the evidence and the defence

Aof the respondent, the Inquiry Officer held that both the charges framedagainst the respondent were duly proved. The Disciplinary Authorityissued Notice to Show Cause to the respondent in relation to the inquiryreport, in response whereto, he submitted representation. Vide orderdated 27[th] November, 2008, the Disciplinary Authority, namely, theCommandant rejected the representation of the respondent. It wasBobserved that the statements of the prosecution witnesses corroboratedwith the scene of the crime and established that theft of copper wiresfrom the Alif Nagar Scrap Yard had taken place when the respondentwas on duty at the duty post. Further, the prosecution witnesses hadproved that the respondent was found to be alert at the duty post by nineCdifferent checking officers, who had checked him in the intervening nighton 7[th]/8[th] November, 2007, despite which, he did not report the criminalactivities in his duty area.

5. Rejecting the plea taken by the respondent that the FIR hadrecorded the occurrence of the offence at 1530 hours on 8[th] November,D2007 which indicated that the theft had not taken place during his dutyhours, the Disciplinary Authority held thus:

“12. After taking into account all the above aspect, I am of theopinion that prosecution witnesses by virtue of corroborativestatements supported by documentary and circumstantial evidencesEhas established, the Articles of charge-I proved against the chargedofficial. On the other hand, the charged official could not come upwith any convincing materials in his representation to disprovethe Article of charge-I. Even he could not produce any defencewitness. The defence documents produced by him during enquirycould not prove anything in his favour. The FIR copy produced byFhim (Defence Exhibit-6) showing occurrence of offence at about1530 hours on 08.11.2007 by which he wanted to refute all claimsof theft happening during his duty hours was examined in depthxxx xxxxxxxxxxxx

The above complain shows that the recovery of the copper wirewas made by the complainant at 1515 hours on 08.11.2007 whereasthe FIR shows the occurrence of offence at 1530 hours on08.11.2007 and the offence described as theft of vehicle TATA-407 loaded with some coils of copper wire and recovery vehicle

was laid at Alif Nagar KMC Sweeper Quarters. Thus, it meansthat the recovery of copper wire was made before the theftoccurred, which is improbable and absurd indeed. It was furtherobserved that FIR shows time of information received at 2200hours on 08.11.2007, occurrence of theft at 1530 hours whilecomplaint shows recovery was made at 1515 hours on same day.All these reveal that the recovery was made well before receivinginformation by the concerned police official of West Port Policestation and even before occurrence of theft……..….. Taking allthese facts together it is clear that the FIR corroborates the factof recovery of copper wire loaded in TATA- 407 vehicle and thestatement of PW1, PW2 & PW8 corroborates the fact that theseized vehicle was held in police custody in the morning of08.11.2007. In totality of all the above it is established that thetheft of copper wire from Alif Nagar scrap yard has occurred inthe night of 07/08.11.2007 during the duty period of the chargedofficial and the said copper wire was later recovered by WestPort police and kept at their custody loaded in TATA-407 vehiclewell before the visit of PW1, PW2 and PW8 at the west portpolice station in the morning of 08.11.2007……….…As regardsArticle of Charge-II, I find that statement of PW4 and documentaryevidences held on record clearly establish that the charged officialhas developed into incorrigible character who even after awarding08 punishments for various delinquencies in his 13 years of servicein CISF has not reformed himself. From the fact and factualposition as assessed, discussed and evaluated above over theprosecution version and defence version, I find that the findingsdrawn by the enquiry officer are fair, reasoned and judiciallyjustified in all respect. I, therefore, fully agree with the findings ofthe enquiry officer and hold the charged official guilty of the Articleof Charge-I and Article of Charge-II.”

6. In view of the above findings and in exercise of the powersconferred under Rule 32 read with Schedule-I and Rule 32 (1) of theCentral Industrial Security Force Rules, 2001[2], the Disciplinary Authorityimposed penalty of dismissal from service on the respondent. Aggrievedby the order dated 27[th] November, 2008 passed by the DisciplinaryAuthority, the respondent preferred an appeal, which was dismissed on3[rd] February, 2009 with the following observations :2 For short ‘CISF Rules, 2001’

“5. I have carefully considered the appeal preferred by theappellant, the departmental proceeding files, findings of the enquiryofficer and other related documents held on record and I haveapplied my mind to the case. I find that the Articles of chargeleveled against the appellant were held proved on the basis ofoverwhelming evidence held on record. The enquiry officer hadconducted the enquiry in fair and judicious manner and affordedhim all reasonable opportunities to rebut the adverse evidenceand to submit sufficient material in support of his defence. He,however, failed to do so. There is also no material irregularity ormiscarriage of justice in this case. The Disciplinary Authority haspassed the final order after considering all aspects of the caseheld on records and awarded the penalty of “Dismissal fromservice” to the appellant vide Final Order No. V-15014/Maj-04/KoPT/Disc/SN/08/8271 dated 27.11.08 for his failure to preventtheft of copper wire weighing about 800 kgs which were layingwith other bundles of copper wire at Alif Nagar scrap yard ofKoPT under the security coverage of the appellant while he wasperforming ‘C’ shift duty from 2100 hrs on 7.11.2007 to 0500 hrson 08.11.2007 at Alif Nagar Scrap yard duty post and non-improvinghis conduct as expected from member of disciplined force, inspite of having been penalized/punished earlier on 08 (Eight)occasions for his incorrigible habits during his short span of 13years’ service is commensurate to the gravity of offence. Theappellant has not come up with any cogent and logical reason thatwarrants consideration. Many other pleas put forth by the appellantin his appeal do not have any merit.

6. As such, I do not find any mitigating circumstances to interferewith the order of penalty dated 27.11.2008 passed by theDisciplinary Authority, i.e., Commandant CISF Unit KoPT Kolkata.Hence, the appeal dated 05.12.2008 preferred by the appellant isrejected being devoid of merit.”

7. This was followed by Revision Petition submitted by therespondent in the Office of the Inspector General, CISF/NES, whichwas dismissed vide order dated 19[th] May, 2009, holding inter alia thatthe charges levelled against him had been proved beyond doubt; that hehad been afforded all the reasonable opportunities to defend himself;that there were no procedural irregularities in conducting the disciplinary

inquiry by the Inquiry Officer or on the part of Disciplinary Authority indealing with the case of the respondent and that principles of naturaljustice had been complied with.

8. Dissatisfied by the order passed by the Revisional Authorityupholding the orders of the Disciplinary Authority and the AppellateAuthority, the respondent filed writ petition in the High Court of Calcutta,registered as WP No.14102 (W) of 2009. The said petition was disposedof by the learned Single Judge, vide order dated 25[th] June, 2018 and thepunishment of dismissal imposed on the respondent was converted tothat of compulsory retirement primarily on the ground that the authoritieshad failed to preserve the relevant records pertaining to the case andone of the vital documents of the inquiry, namely, the Beat Book, whichrecorded the time when the respondent had taken charge from his relieverand the items available on the spot and the time when he handed overcharge to his successor, required examination. Observing that theauthorities ought to have maintained the relevant records of inquiry inview of pendency of the writ petition, the learned Single Judge set asidethe punishment of dismissal from service imposed on the respondentand compulsorily retired him from service w.e.f. 27[th] November, 2008alongwith all consequential benefits.9. The aforesaid order was challenged by the appellants – Unionof India in two sets of appeals (FMA No.679 of 2019 and FMA 680 of2019), that were disposed of by the Division Bench, vide the impugnedjudgment dated 9[th] September, 2021 whereby, the decision of the learnedSingle Judge of substituting the punishment of dismissal imposed on therespondent with one of compulsory retirement, was quashed and setaside. Instead, it was directed that the respondent would be entitled tobe reinstated in service along with full back wages from the date of hisdismissal. The Disciplinary Authority was further directed to issue afresh order of punishment in respect of the respondent that shouldcommensurate to his negligence and dereliction of duty, other than apunishment of dismissal, removal from service or compulsory retirement.

10. Questioning the aforesaid judgment, the present appeals havebeen filed by the appellants – Union of India. The respondent has alsopreferred Petitions for Special Leave to appeal being aggrieved by thedirections issued by the High Court calling upon the Disciplinary Authorityto issue fresh order of punishment qua him upon reinstatement on aplea that there was no occasion for the Division Bench to have interfered

Awith the order passed by the learned Single Judge whereby the punishmentof removal from service had been set aside and the respondent wasdirected to be compulsorily retired from service.

11. Appearing for the appellants – Union of India, Ms. AakankshaKaul, learned counsel has argued that the impugned judgment isBunsustainable for the reason that the High Court has acted as an AppellateAuthority by directing reinstatement of the respondent, which runscontrary to the law laid down by the Supreme Court inB.C. Chaturvediv. Union of India and Others3; that the High Court while exercisingthe powers vested in it under judicial review, ought not to have steppedinto the shoes of the Appellate Authority and reappreciated the evidenceCto arrive at independent findings on the evidence adduced; that nogrievance was raised by the respondent that the rules of natural justicehad been violated or the inquiry had not been conducted in propermanner or that the findings arrived at by the Disciplinary Authority werebased on no evidence. Learned counsel asserted that in the instant case,Dthe inquiry was conducted by competent officer, rules of natural justicewere duly complied with and the findings arrived at by the Inquiry Officerwere based on sufficient evidence. Stating that having regard to the factthat the charges against the respondent had been proved in properlyconducted departmental inquiry after giving reasonable opportunity tothe respondent to defend himself, there was no good reason for theElearned Single Judge to have converted the punishment of dismissal fromservice imposed by the Disciplinary Authority and upheld by the AppellateAuthority, to compulsory retirement and for the Division Bench to havefurther interfered by reassessing the evidence and directing reinstatementof the respondent in service with full back wages and only thereafter,Fpass fresh order of punishment.

12. Citing the decision in State of Orissa and Others v.

4Bidyabhushan Mohapatra, it was contended that keeping in mind thegravity of the established misconduct, the Disciplinary Authority has thepower to impose punishment on the delinquent officer and such aGpunishment is not open for review by the High Court under Article 226of the Constitution of India. It was also sought to be urged on behalf ofthe appellants that the past conduct of the respondent can be taken intoconsideration while awarding penalty, subject to the condition that the

3 (1995) 6 SCC 749H4 AIR 1963 SC 779

same is made part of separate charge, as was done in the instantcase. In support of the said submission, learned counsel cited Central5Industrial Security Force and Others v. Abrar Ali.

13. The only submission made by Mr. Ranjan Mukherjee, learnedcounsel for the respondent is that the learned Single Judge having directedreinstatement of the respondent with full back wages, the Division Benchwas not justified in passing an order directing that fresh order be passedby the Disciplinary Authority commensurate to the negligence anddereliction of duty on the part of the respondent. Instead, the appealspreferred by the appellants – Union of India ought to have been dismissedoutright in which event, the punishment of compulsory retirement imposedby the learned Single Judge would have been restored and attained finalitythereby entitling the respondent to claim his retiral benefits.

14. The point that arises for our consideration is whether in thegiven facts of the case, the learned Single Judge and the Division Benchought to have interfered with the punishment imposed on the respondentby the Disciplinary Authority and upheld by the Appellate Authority asalso by the Revisional Authority.

15. It is well settled that courts ought to refrain from interferingwith findings of facts recorded in departmental inquiry except incircumstances where such findings are patently perverse or grosslyincompatible with the evidence on record, based on no evidence.However, if principles of natural justice have been violated or the statutoryregulations have not been adhered to or there are malafides attributableto the Disciplinary Authority, then the courts can certainly interfere.

16. In the above context, following are the observations made bya three-Judge Bench of this Court in B.C. Chaturvedi (supra) :

“12. Judicial review is not an appeal from decision but reviewof the manner in which the decision is made. Power of judicialreview is meant to ensure that the individual receives fair treatmentand not to ensure that the conclusion which the authority reachesis necessarily correct in the eye of the court. When an inquiry isconducted on charges of misconduct by public servant, the Court/Tribunal is concerned to determine whether the inquiry was heldby competent officer or whether rules of natural justice are

Acomplied with. Whether the findings or conclusions are based onsome evidence, the authority entrusted with the power to holdinquiry has jurisdiction, power and authority to reach finding offact or conclusion. But that finding must be based on someevidence. Neither the technical rules of Evidence Act nor of proofof fact or evidence as defined therein, apply to disciplinaryBproceeding. When the authority accepts that evidence andconclusion receives support therefrom, the disciplinary authorityis entitled to hold that the delinquent officer is guilty of the charge.The Court/Tribunal in its power of judicial review does notact as appellate authority to reappreciate the evidence andCto arrive at its own independent findings on the evidence.The Court/Tribunal may interfere where the authority heldthe proceedings against the delinquent officer in mannerinconsistent with the rules of natural justice or in violationof statutory rules prescribing the mode of inquiry or wherethe conclusion or finding reached by the disciplinaryDauthority is based on no evidence. If the conclusion orfinding be such as no reasonable person would have everreached, the Court/Tribunal may interfere with theconclusion or the finding, and mould the relief so as to makeit appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts.Where appeal is presented, the appellate authority hascoextensive power to reappreciate the evidence or thenature of punishment. In disciplinary inquiry, the strictproof of legal evidence and findings on that evidence areFnot relevant. Adequacy of evidence or reliability of evidencecannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel[6]this Court held at p.728 that if the conclusion, upon consideration of the evidencereached by the disciplinary authority, is perverse or suffers frompatent error on the face of the record or based on no evidence atGall, writ of certiorari could be issued.

xxx xxx xxx

18. review of the above legal position would establish that thedisciplinary authority, and on appeal the appellate authority, beingfact-finding authorities have exclusive power to consider theevidence with view to maintain discipline. They are investedwith the discretion to impose appropriate punishment keeping inview the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannotnormally substitute its own conclusion on penalty and impose someother penalty. If the punishment imposed by the disciplinaryauthority or the appellate authority shocks the conscience of theHigh Court/Tribunal, it would appropriately mould the relief, eitherdirecting the disciplinary/appellate authority to reconsider thepenalty imposed, or to shorten the litigation, it may itself, inexceptional and rare cases, impose appropriate punishment withcogent reasons in support thereof.”

[Emphasis laid]

17. In State Bank of Bikaner and Jaipur v. Nemi ChandNalwaya7, two Judge Bench of this Court held as below :

“7. It is now well settled that the courts will not act as anappellate court and reassess the evidence led in thedomestic enquiry, nor interfere on the ground that anotherview is possible on the material on record. If the enquiryhas been fairly and properly held and the findings are basedon evidence, the question of adequacy of the evidence orthe reliable nature of the evidence will not be grounds forinterfering with the findings in departmental enquiries.Therefore, courts will not interfere with findings of factrecorded in departmental enquiries, except where suchfindings are based on no evidence or where they are clearlyperverse. The test to find out perversity is to see whether atribunal acting reasonably could have arrived at such conclusionor finding, on the material on record. The courts will howeverinterfere with the findings in disciplinary matters, if principles ofnatural justice or statutory regulations have been violated or if theorder is found to be arbitrary, capricious, mala fide or based onextraneous considerations. (Vide B.C. Chaturvedi v. Union of

AIndia[8], Union of India v. G. Ganayutham[9], Bank of India v.Degala Suryanarayana[10] and High Court of Judicature atBombay v. Shashikant S. Patil[11]).

[Emphasis laid]

18. In Chairman & Managing Director, V.S.P. and Others v.B12Goparaju Sri Prabhakara Hari Babu, two Judge Bench of thisCourt referred to several precedents on the Doctrine of Proportionalityof the order of punishment passed by the Disciplinary Authority and heldthat :

“21. Once it is found that all the procedural requirements haveCbeen complied with, the courts would not ordinarily interfere withthe quantum of punishment imposed upon delinquent employee.The superior courts only in some cases may invoke the doctrineof proportionality. If the decision of an employer is found to bewithin the legal parameters, the jurisdiction would ordinarily notDbe invoked when the misconduct stands proved.”

19. Laying down the broad parameters within which the HighCourt ought to exercise its powers under Article 226/227 of theConstitution of India and matters relating to disciplinary proceedings, atwo Judge Bench of this Court in Union of India and Others v. P.Gunasekaran13 held thus :E

“12. Despite the well-settled position, it is painfullydisturbing to note that the High Court has acted as anappellate authority in the disciplinary proceedings,reappreciating even the evidence before the enquiry officer.FThe finding on Charge I was accepted by the disciplinaryauthority and was also endorsed by the CentralAdministrative Tribunal. In disciplinary proceedings, theHigh Court is not and cannot act as second court of firstappeal. The High Court, in exercise of its powers under Articles226/227 of the Constitution of India, shall not venture into

8 (1995) 6 SCC 7499 (1997) 7 SCC 46310 (1999) 5 SCC 76211 (2000) 1 SCC 41612 (2008) 5 SCC 569H13 (2015) 2 SCC 610

reappreciation of the evidence. The High Court can only seewhether:

(a) the enquiry is held by competent authority;

(b) the enquiry is held according to the procedure prescribedin that behalf;

(c) there is violation of the principles of natural justice inconducting the proceedings;

(d) the authorities have disabled themselves from reaching afair conclusion by some considerations extraneous to theevidence and merits of the case;

(e) the authorities have allowed themselves to be influencedby irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitraryand capricious that no reasonable person could ever havearrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admitthe admissible and material evidence;

(h) the disciplinary authority had erroneously admittedinadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the HighCourt shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case thesame has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findingscan be based.

(vi) correct the error of fact however grave it may appear tobe;

[2022] 18 S.C.R.

(vii) go into the proportionality of punishment unless it shocksits conscience.”

20. In Union of India and Others v. Ex. Constable RamKaran14, two Judge Bench of this Court made the following pertinentobservations :

“23. The well-ingrained principle of law is that it is the disciplinaryauthority, or the appellate authority in appeal, which is to decidethe nature of punishment to be given to the delinquent employee.Keeping in view the seriousness of the misconduct committed bysuch an employee, it is not open for the courts to assume andusurp the function of the disciplinary authority.

24. Even in cases where the punishment imposed by thedisciplinary authority is found to be shocking to the conscience ofthe court, normally the disciplinary authority or the appellateauthority should be directed to reconsider the question of impositionof penalty. The scope of judicial review on the quantum ofpunishment is available but with limited scope. It is only whenthe penalty imposed appears to be shockingly disproportionate tothe nature of misconduct that the courts would frown upon. Evenin such case, after setting aside the penalty order, it is to be leftto the disciplinary/appellate authority to take call and it is not forthe court to substitute its decision by prescribing the quantum ofpunishment. However, it is only in rare and exceptional caseswhere the court might to shorten the litigation may think ofsubstituting its own view as to the quantum of punishment in placeof punishment awarded by the competent authority that too afterassigning cogent reasons.”

21. Constitution Bench of this Court in State of Orissa andOthers(supra) held that if the order of dismissal is based on findingsthat establish the prima facie guilt of great delinquency of the respondent,then the High Court cannot direct reconsideration of the punishmentGimposed. Once the gravity of the misdemeanour is established and theinquiry conducted is found to be consistent with the prescribed rules andreasonable opportunity contemplated under the rules, has been affordedto the delinquent employee, then the punishment imposed is not open tojudicial review by the Court. As long as there was some evidence to

arrive at conclusion that the Disciplinary Authority did, such an orderbecomes unassailable and the High Court ought to forebear frominterfering. The above view has been expressed in Union of India v.15Sardar Bahadur.

22. To sum up the legal position, being fact finding authorities,both the Disciplinary Authority and the Appellate Authority are vestedwith the exclusive power to examine the evidence forming part of theinquiry report. On finding the evidence to be adequate and reliable duringthe departmental inquiry, the Disciplinary Authority has the discretion toimpose appropriate punishment on the delinquent employee keeping inmind the gravity of the misconduct. However, in exercise of powers ofjudicial review, the High Court or for that matter, the Tribunal cannotordinarily reappreciate the evidence to arrive at its own conclusion inrespect of the penalty imposed unless and until the punishment imposedis so disproportionate to the offence that it would shock the conscienceof the High Court/Tribunal or is found to be flawed for other reasons, asenumerated inP. Gunasekaran (supra). If the punishment imposed onthe delinquent employee is such that shocks the conscience of the HighCourt or the Tribunal, then the Disciplinary/Appellate Authority may becalled upon to re-consider the penalty imposed. Only in exceptionalcircumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offeringcogent reasons therefor.23. Applying the law laid down above to the instant case, we areof the view that the High Court ought not to have interfered with thefindings of fact recorded by the Disciplinary Authority. Charge-1 levelledagainst the respondent pertained to negligence and dereliction of dutyattributed to him for having failed to prevent theft of 800 kgs of copperwires lying at Alif Nagar scrap yard under his security cover whileperforming duty in the late hours of 7[th] November, 2007 upto the earlyhours of 8[th] November, 2007. Records reveal that the DisciplinaryAuthority has minutely examined the entire evidence brought on recordincluding the deposition of eight prosecution witnesses each of whomhave corroborated the charges levelled against the respondent, dulysupported by documentary and circumstantial evidence for arriving atthe conclusion that the Articles of Charge-I stood proved against therespondent. Pertinently, the respondent did not produce any defence

15 (1972) 4 SCC 618

Awitness and the documents produced by him did not prove anything inhis favour.

24. The contention of the respondent that the FIR registered againsthim mentioned the time of the occurrence as 15:30 hours on 8[th] November,2007, when he was not on duty, was also analyzed in depth by theBDisciplinary Authority, who referred to the fact that the FIR was lodgedsuo moto by the West Port Police Station on the basis of complaintsubmitted by the Office-Incharge of the Police Station who had recoveredthe copper wires loaded in commercial vehicle which was brought tothe police station and kept at the police station compound. The complaintrecorded that recovery of copper wires was made by the complainant atC15:15 hours on 8[th] November, 2007 whereas, the FIR showed the timeof the information received as 22:00 hours on 8[th] November, 2007, andthe time of the occurrence of the theft as 15:30 hours. Noting thediscrepancies in the FIR which were in contradiction with the depositionsof PW1, PW2 and PW8 who had stated that the information of the theftDwas received long before 22:00 hours on 8[th] November, 2007, theDisciplinary Authority discarded the version of the respondent asunacceptable and went on to hold that the evidence fairly establishedthat the theft of the copper wires had occurred in the intervening nightof 7[th]/8[th] November, 2007, during the duty hours of the respondent.Accordingly, the Disciplinary Authority concluded that Charge-I wasEproved against the respondent.

25. As for Charge-II, the Disciplinary Authority noted the statementof SI/Min. A.K. Dua (PW-4) who was working as incharge of theDocument Section of the Unit and had been summoned to prove copiesof the service documents related to the respondent and on going throughFthe said documentary evidence, noted that the respondent had beenawarded eight punishments over period of thirteen years of service forvarious delinquencies but he had not reformed himself. In view of hiscontinuous misconduct in the past coupled with the serious offence oftheft of 800 kgs. copper wires, subject matter of Charge-I, the DisciplinaryGAuthority opined that the respondent was unfit to be retained in adisciplined force and therefore, directed his dismissal from service.

26. We have noted above that the findings of the DisciplinaryAuthority had met with the approval of the Appellate Authority and theRevisional Authority. However, the learned Single Judge overturned theHorder of dismissal from service and converted the same to compulsory

retirement on the sole ground of non-availability of the original record,more specifically, the Beat Book, while giving go-by to the extract ofthe Beat Book that was produced before the Inquiry Officer and thefact that the respondent had admitted the said document. The learnedSingle Judge also ignored the fact that the Beat Book was not the onlypiece of document produced before the Inquiry Officer. There weredepositions of other witnesses produced by the department to prove thecharges levelled against the respondent and the said witnesses hadcorroborated the version of the Department. At no stage, did the learnedSingle Judge observe that the departmental inquiry was vitiated on accountof violation of the rules of natural justice or that the inquiry had beenconducted in gross violation of the statutory rules.

27. The Division Bench went step further and proceeded toreappreciate the evidence and observed that it was not persuaded toconclude that such major theft of 800 kgs comprising of 42 bundles ofcopper wires could have happened “in the blink of an eyelid” despiteholding that the view of the learned Single Judge regarding non-productionof the original Beat Book was unsustainable. The Court held that theallegation of connivance in the theft levelled against the respondent waspresumptive and there wasn’t enough evidence to conclude that theft ofsuch magnitude could have happened during the duty period of therespondent alone, yet charge-I pertaining to negligence and derelictionof duty on the part of the respondent was sustained. At the same time,the order passed by the learned Single Judge directing substitution of thepunishment of dismissal with that of compulsory retirement was set asideand the respondent was directed to be reinstated in service with fullback wages, while giving liberty to the Disciplinary Authority to issue afresh order of punishment commensurate to the negligence and derelictionof duties on his part, except for punishment of dismissal or removal fromservice or compulsory retirement.

28. We are unable to commend the approach of the learned SingleJudge and the Division Bench. There was no good reason for the HighCourt to have entered the domain of the factual aspects relating to theevidence recorded before the Inquiry Officer. This was clearly an attemptto reappreciate the evidence which is impermissible in exercise of powersof judicial review vested in the High Court under Article 226 of theConstitution of India. We are of the opinion that both, the learned SingleJudge as well as the Division Bench, fell into an error by setting aside

Athe order of dismissal from service imposed on the respondent by theDisciplinary Authority and upheld by the Appellate Authority.

29. We find ourselves in complete agreement with the findingsreturned by and conclusion arrived at by the Disciplinary Authority, dulyconfirmed by the Appellate Authority and upheld by the RevisionalBAuthority in respect of both the Articles of Charge levelled against therespondent and the punishment imposed on him. The respondent being amember of the disciplined force, was expected to have discharged hisduty diligently. His gross negligence and dereliction of duty has resultedin theft of 800 kgs. copper wires from the spot where he was performinghis duty. Further, the records reveal that the respondent did not mend hisCways during thirteen years of service rendered by him and was awardedeight punishments for various delinquencies out of which, threepunishments included stoppage of increment on two occasions for oneyear without cumulative effect twice and stoppage of increment for twoyears without cumulative effect on one occasion. In such circumstances,Dthe desirability of continuing the respondent in the Armed Forces iscertainly questionable and the Disciplinary Authority could not be expectedto wear blinkers in respect of his past conduct while imposing the penaltyof dismissal from service on him.

30. Therefore, it is deemed appropriate to quash and set aside theimpugned judgment and order dated 9[th] September, 2021 passed by theEDivision Bench of the High Court of Calcutta in FMA No.679 of 2019and FMA No. 680 of 2019 and the order dated 25[th] June, 2018 passedby the learned Single Judge in WP No.14102 (W) of 2009, while restoringthe findings and the conclusion arrived at by the Disciplinary Authority,as elaborated in the order dated 27[th] November, 2008, duly upheld byFthe Appellate Authority, vide order dated 3[rd] February, 2009 and endorsedby the Revisional Authority, vide order dated 19[th] May, 2009. In ourview, the penalty of dismissal from service imposed on the respondent iscommensurate with the gross negligence and dereliction of duty on hispart.

31. As result, both the appeals preferred by the Union of IndiaG(arising out of Petitions for Special Leave to Appeal (C) Nos. 3524-25/2022) are allowed and appeals @ Petitions for Special Leave to Appeal(Civil) Nos. 11021-22/2022 filed by the private respondent are dismissed,while leaving the parties to bear their own expenses.

HNidhi Jain and Anurag Bhaskar(Assisted by : Priyanshu Agarwal, LCRA)