JUDGMENT
D.B. Bhosale, J.
1. The petitioner, by means of this writ petition under Article 226 of the Constitution of India, has impugned the order of his dismissal dated 22nd April, 1988 and the report of enquiry and also order dated 14th October, 1988, passed in the appeal by the Appellate Authority of respondent No. 1. The petitioner has also prayed for direction to the respondents to reinstate him with full back wages and all remunerations. Respondent No. 1 is Bharat Petroleum Corporation Ltd. (for short “the corporation”). The petitioner alleged to have committed serious misconduct by violating Clauses A(1), A(22), A(31) read with the conduct Rule 4(a) and (c) of the Conduct, Discipline and Appeal Rules, 1976 (for short “the Conduct Rules”).
2. The brief facts leading to the present petition are as follows : The petitioner entered the corporation as a clerk in Administration Department in 1982. In 1984, he was promoted as Material Officer (Refining Division). On 21st November, 1986, one Mr. V.S. Lalla, a clerk working with the petitioner, approached him at 4.15 p.m. for a lift on his scooter. It is a case of the petitioner that he handed over the brief case, which he was carrying, to Mr. Lalla and went to take his scooter from parking lot which was 100 mtrs, away from the Administrative Office. When petitioner brought scooter Mr. Lalla kept brief case on its foot board and rode pillion on a scooter. It is alleged that the petitioner while going out of refinery with Mr. Lalla, was stopped by the Security Officer one Mr. Sunil Kamble at the Main Gate for checking. On opening the brief case some articles owned by the corporation were found in the briefcase. The articles were two bottles of Oil, Dhania, Powder, Paneer and eight samosas. The panchanama of the said articles was made in the petitioner’s presence and they were taken into custody by security personnel. The signed statement of the petitioner was also procured by the Security Officer. In the said statement, the petitioner admitted that the above articles were given by Mr. Dondiram Shirke, from canteen and were kept in his briefcase by Lalla for taking them out with his knowledge. Similarly, Mr. Lalla was also questioned about the said articles and he also gave in writing his version about existence of the articles in briefcase of the petitioner. He stated that the above articles were given from canteen by Dhondiram Shirke for our personal use. Both, the petitioner and Mr. Lalla also gave in writing that such mistake would not be repeated. It is a case of the petitioner that under duress and undue influence he gave in writing that said articles were taken out of the canteen with his knowledge and that he would not repeat such mistake in future.
3. The petitioner was suspended pending enquiry on 24th November, 1986. On 29th November, 1986, he was issued charge-sheet under Conduct Rules for violation of said Rules and was required to show cause why disciplinary action should not be taken against him. The petitioner submitted his explanation on 8th December, 1986. The enquiry against the petitioner which started on 16th January 1987, was concluded on 7th December, 1987. The Enquiry Officer submitted his finding on 19th April 1988, in which he found the petitioner guilty of the charges levelled against him. The Disciplinary Authority by its order dated 22nd April, 1988, dismissed the petitioner from services of the corporation with effect from 22nd April, 1988. The copy of the disciplinary order and findings of the disciplinary officer were supplied to the petitioner under cover of the corporation’s letter dated 22nd April, 1988, The petitioner submitted an appeal dated 21st July, 1988, to the Chairman and Managing Direction against said order. He was given personal hearing on 3rd October, 1988. The Appellate Authority namely Chairman and Managing Director by order dated 13th October, 1988 dismissed appeal of the petitioner. The corporation claims to have dismissed the petitioner after full and complete enquiry in which he was given full opportunity to defend himself. It appears that the enquiry went on for almost 11 months from the day it commenced. In the circumstances, the petitioner has approached this Court for invocation of an extra ordinary jurisdiction under Article 226 of the Constitution of India.
4. Dr. Kulkarni, learned Counsel for the petitioner assailed correctness of concurrent findings recorded by the Enquiry Officer and affirmed by the Appellate Authority. The challenge to the impugned orders and action of dismissal is on three grounds. Firstly, that non-observance of the principles of natural justice in not examining two material witnesses, vitiates the whole enquiry. Dr. Kulkarni submitted that in the instant case the corporation ought to have examined Dondiram Shirke, canteen boy and Mr. R.K. Verma, Deputy General Manager. According to the petitioner, though statement of Mr. Shirke was recorded, the corporation did not examine him. Shirke would have been the best witness, who could have thrown light as to for whom the stolen articles were handed over to Lalla. Similarly, Mr. R.K. Verma, Deputy General Manager had personal animosity against the petitioner and he hatched conspiracy to throw the petitioner out of corporation. According to Dr. Kulkarni, Mr. Verma wanted the petitioner to withdraw his claim of promotion which the petitioner refused and resultantly he was promoted as an officer in the year 1984. Dr. Kulkarni in support of his submission placed reliance on the decisions of the Supreme Court in the case of Hardwari Lal v. State of U.P. and others, reported in 2001(I) C.L.R. 73, in the case of State Bank of Patiala and others v. S.K. Sharma, , in the case of Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others, and in the case of National Insurance Co. Ltd., New Delhi v. Jugal Kishore and others, . Secondly, Dr. Kulkarni contended that test of proportionality has not been applied at all in the instant enquiry. According to the petitioner, he rendered meritorious service and had unblemish record, and, therefore, he had no reason to steal the articles which were not even worth Rs. 100/-. According to him, this aspect has not been taken into consideration, therefore, are perverse. The punishment awarded is excessive and that lesser punishment would meet the ends of justice. Dr. Kulkarni in support of his submissions placed reliance on the decisions of the Apex Court in the case of R.M. Parmar v. Gujarat Electricity Board, reported in 1983(I) L.L.J. 261. and in case of Jaswant Singh v. Pepsu Roadways Transport Corporation, .
5. The corporation has filed an affidavit controverting the case set up by the petitioner. The affidavit is in the nature of denial of all allegations made against the corporation and it demonstrate as to how they have followed the principles of natural justice and fair in conducting the enquiry against the petitioner. They have denied the allegation of personal animosity, made against Mr. R.K. Verma, Deputy General Manager of the Corporation. According to the corporation, the charge against the petitioner has been proved beyond doubt and, therefore, the punishment of dismissal cannot be said to be disproportionate.
6. Mr. Rele, learned Counsel for the corporation placed reliance on the decisions of the Apex Court in the case of State Bank of India and others v. Samarendra Kishore Endow & another, reported in 1995 Bank.J. (S.C.)16 : 1994(I) C.L.R. 663, and contended that imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority and it is not open to the High Court to interfere with it in its extra-ordinary jurisdiction under Article 226 of the Constitution. He further placed reliance on decision of this Court in the case of (Krishnakumar Khorana and Chairman Oil and Natural Gas Commission, and others)8, reported in 1995(II) L.L.N. 931. This judgment reiterates view expressed by the Apex Court in the earlier judgment. He further placed reliance on the decision of the Apex Court in the case of State of Tamil Nadu and others v. S. Subramaniam, reported in 1996(I) C.L.R. 386 and contended that the High Court cannot re-appreciate the evidence and come to its own conclusion that the charge had not been proved. Mr. Rele, further submitted that in addition to breach of natural justice, prejudice must also be proved. In support of his submission he placed reliance on decision of the Apex Court in case of Aligarh Muslim University & others v. Mansoor Ali Khan, reported in 2001(91) F.L.R. 28.
7. We heard learned Counsel for the parties at length and have gone through the petition and affidavits filed by the parties with annexures thereto. We have gone through the enquiry report and the order passed by the Appellate Authority and also evidence of Mr. Lalla and Mr. Sunil Kamble in particular. We are conscious of the scope of present writ petition, wherein the concurrent findings recorded by the authorities below in departmental enquiry against the petitioner are under challenge. The High Court while entertaining writ petition under Article 226 is not a Court of Appeal over the decision of Appellate Authority holding departmental enquiry against the delinquent employee. We are concerned to determine whether the rules of natural justice are not violated. It is not our function under Article 226 to review or reappreciate the evidence and to arrive at an independent findings. Our endeavour will be only to see whether the conclusion is based on evidence on record and supports the findings or whether the conclusion is based on no evidence.
8. Before we proceed further let us note that Mr. Lalla, who was with the petitioner at the relevant time was also charge-sheeted independently and since he was a clerk, he was governed by the certified standing order, under Industrial Employment Standing Order Act, 1946, meant for staff other than Managerial Staff. Mr. Lalla has also been held guilty for misconduct and dismissed from the services.
9. We would first like to deal with the contention advanced by Dr. Kulkarni, that enquiry was held in gross violation of the principles of natural justice since two material witnesses were not examined by the corporation. In order to appreciate the submissions made by Dr. Kulkarni, it would be beneficial if we reproduce the charge against the petitioner. The relevant portion reads thus :
YOURSELF-CHARGE SHEET
“Further to the suspension order of even reference dated 24-11-86 issued to you on the same day, you are hereby charged with committing offence under the Bharat Petroleum Corporation Management Staff Conduct, Discipline and Appeal Rules, 1976, for violation of Conduct Rules made by the company as detailed by the following facts :-
(1) On 21-11-86, at about 4.20 p.m. when you were going out of the Refinery on your scooter No. MAJ 790 alongwith Mr. V.S. Lalla- C-451), your vehicle was stopped at the Main Gate by Mr. Sunil Kamble, Senior Security Officer for checking.
(2) As a result of the spot check, the following items belonging to the company were found in your briefcase :-
a) 2 bottles each containing approximately 750 ml. of Edible Oil.
b) 1 bag containing 600 gms. (approx.) of Dhania Powder.
c) Panner 1 kg. pack approx.
d) 8 Nos. Veg. Samosas.
A “panchanama” of the above items found in your brief case was carried out in your presence and the same taken into custody by the security personnel. A signed statement was also taken from you wherein, as per your admission, the above items were kept by Mr. V.S. Lalla in your briefcase and with your knowledge, to be taken out of the refinery premises.
The above acts on your part constitute a serious misconduct under Clause Nos. A(1), A(22) and A(31) read with Conduct Rule 4(a) and (c) as defined in the aforesaid Conduct, Discipline and Appeal Rules, 1976 for Management Staff as reproduced below :
Clause A(1).—Theft, fraud, forgery, embezzlement, misappropriation, dishonesty in connection with the business or property of the company or of property of another person within the premises of the company.
Clause A(22).—Commissioning of any act subversive of discipline or good behaviour.
Clause A(31), read with Conduct Rule No. 4(a) and (c):
A(31)-Violation of Conduct Rules made by the company.
Rule No. 4.—Management Staff to promote company’s interest: Every management staff shall serve the company honestly and faithfully. He shall use his utmost endeavour to promote the interest of the company and shall show courtesy and attention in all transactions. Every management staff of the company shall at all times.
(a) maintain absolute integrity.
(b) do nothing which is unbecoming of a management staff of the company.
You are, therefore, required to show cause why disciplinary action as prescribed in the said Rules for management staff be not taken against you. Your reply to the aforesaid charge must be sent to the undersigned within 7 days from the date of receipt of this charge-sheet, failing which, it shall be presumed that the aforesaid charge is accepted by you and accordingly further action will be taken against you as prescribed in the said Rules for management staff.
Receipt of this charge-sheet may be acknowledged.”
10. Thus, the petitioner has been specifically charged for the alleged incident dated 21st November 1986, when on the spot check he was found in possession of the articles belonging to the company. The signed statement was also given by the petitioner admitting that the articles found in the briefcase were kept by Mr. Lalla with his knowledge and for taking them out of the refinery premises. In view of this the petitioner was charged to have committed serious misconduct under Clauses A(1), A(22) and A(31) read with Rule 4(a) and (c) of the Conduct Rules. By the aforesaid charged-sheet dated 29th November, 1986, the petitioner was called upon to show cause why disciplinary action as prescribed in the aforesaid Rules be not taken against him. In response to the show cause notice in the form of charge-sheet, the petitioner submitted his reply on 8th December, 1986. It is apparent that the petitioner as well as Mr. Lalla were charged for the same incident, though separately, attributing to both of them that the stolen articles found in briefcase of the petitioner were meant for both and it was within their knowledge.
11. The case of the petitioner, reflected in the reply, was that on 21st November, 1986, when the briefcase was handed over to Mr. Lalla for holding it till he gets his scooter from the parking lot, Mr. Lalla planted the stolen articles in his briefcase without his knowledge and consent. Mr. Sunil Kamble the Security Officer when checked the briefcase the petitioner was also shocked to see stolen articles in his bag. In so far as the statement given by the petitioner in writing is concerned, he specifically contends that he did it under duress, pressure and undue influence brought on him by Sunil Kamble in the presence of two constables. It is because of this pressure he added the words “with my knowledge”. We would like to reproduce the writing given by the petitioner in his own words which reads thus :
“I K.S. Karna today about 1620 hrs, while I was going out on scooter through Main Gate along with Mr. V.S. Lalla on my scooter MAJ 790. The Security Officer Shri Kamble stopped the scooter and requested me to open the bag and following material was found:
1. Two oil bottles.
2. One Pkt. Containing Dhaniya.
3. One Pkt. Containing Powder.
4. Snacks.
I understand that the above material was given from canteen by one Mr. Dhondiram Shirke and was kept in my bag by Mr. Lalla to be taken out with our knowledge. This type of mistake will not be repeated.”
The petitioner has specifically contended that he had nothing to do with the said articles kept in briefcase by Mr. Lalla without his knowledge and consent.
12. The corporation in order to prove the charge against the petitioner, has examined as many as four witnesses namely Sunil Kamble the Security Officer, Mr. V.S. Lalla a clerk, Mr. V.S. Naik the Security Officer and Mr. V. Seshadri the canteen contractor. Admittedly, the petitioner has not examined any witness in his defence. In fact, when the petitioner was specifically asked during the course of enquiry on 21st November, 1987, as to whether he would like to examine any witness, he replied in negative.
13. The defence disclosed by the petitioner in his reply dated 8th December, 1986, is silent about his allegation against Mr. Verma-Deputy General Manager. The allegation made by the petitioner against Mr. Verma that he was biased and had malice against him since he did not accede to his request for withdrawal of his claim for promotion. It is pertinent to note at this stage itself that the corporation in their reply affidavit has specifically stated that Mr. Verma took up matter with the Chairman and Managing Director and obtained special approval for promoting the petitioner as Material Manager. This statement in the reply has not been denied at all by the petitioner.
14. The corporation examined four witnesses and brought several documents on record and on appreciation of the evidence the Enquiry Officer as well as Appellate Authority have concurrently held that the petitioner has failed to prove that he handed over bag to Mr. Lalla and went to bring his scooter from the parking lot. Mr. Lalla has specifically denied this suggestion and in fact stated that he had kept the articles in the table drawer of the petitioner when they were handed over by Mr. Shirke in Room No. 313 A for the petitioner. He specifically denied to have handled petitioner’s briefcase at any time. According to the corporation the stolen articles were kept by the petitioner in his brief case in Room No. 313 A itself. It has also come in the evidence of Mr. Lalla that there was some understanding between him and the petitioner and as per that understanding the petitioner regularly use to give him lift for monetary consideration. Admittedly, Mr. Lalla was working under the petitioner as a clerk. The statement of Lalla, appears to be more probable. The case of petitioner that Mr. Lalla requested him to give lift on 21-11-1986 and handed over briefcase for some time, therefore, does not inspire confidence. The conclusions in that regard of the Enquiry Officer in our opinion, are based on evidence. However, we do not see any reason whatsoever for Mr. Lalla to implicate the petitioner falsely, much less at the behest of Mr. Verma Deputy General Manager. We fail to understand why Mr. Lalla would act at behest of Mr. Verma when he himself was charge-sheeted and after holding an enquiry has been dismissed from service. In other words, it is hard to believe that an employee would act at behest of his Superior when his own service is at stake. Since we do not see any just and reasonable ground for false implication of the petitioner by Mr. Lalla, in our opinion, the Enquiry Officer as well as the Appellate Authority have rightly rejected defence of the petitioner, that Lalla planted the articles at the behest of Verma.
15. The main thrust of the argument of Dr. Kulkarni was that the enquiry was held in gross violation of the principles of natural justice since two material witnesses namely Shirke and Verma were not examined. Mr. Shirke’s statement which is part of record mentions that he handed over the stolen articles to Mr. Lalla in the office. He does not make any reference to the petitioner. Though, Mr. Dhondiram Shirke does not implicate the petitioner at all but fact remains that the articles were handed over to Mr. Lalla who kept those articles in the drawer of the table of the petitioner and which were ultimately found in briefcase of the petitioner. We do not see any prejudice is caused to the petitioner by not examining Mr. Shirke. Had Shirke stated that the articles were given only for Lalla still that would not have helped the petitioner, in view of the finding of articles in his briefcase. After considering the entire evidence on record, two authorities below have concurrently held that the articles were kept by the petitioner himself in his briefcase in Room No. 313 A. Similarly, non-examination of Mr. Verma also has not caused any prejudice to the petitioner. Mr. Verma’s evidence would not have helped the petitioner at all. We have, therefore, no hesitation in holding that the stolen articles found in the briefcase of the petitioner were meant for himself and within his knowledge and they were kept by the petitioner himself in Room No. 313 A. It is not disputed that the articles found in briefcase were belonging to the company. We have looked into evidence only with a view to find out whether there is any perversity in the findings recorded by the authorities below.
16. Dr. Kulkarni, learned Counsel for the petitioner placed reliance on the decision of Supreme Court in the case of Hardwari Lal (supra) in support of his submission that non-examination of Mr. Shirke and Mr. Verma has caused prejudice to defence of the petitioner which amounts to violation of the principles of natural justice and on this ground alone the whole enquiry vitiates. In Hardwari Lal’s case (supra) the Apex Court did hold that no proper enquiry was conducted by the authorities by non-examining the material witnesses. In the said case, two witnesses who were not examined were the complainant himself and a person who witnessed the incident. Having regard to the facts and circumstances of the case, the Apex Court held that the examination of these two witnesses would have revealed as to whether the complaint made was correct or not and to establish that he was the best person. That is not the case in present petition. We are of the considered view that non-examination of Shirke and Verma could not have changed the conclusion arrived at by the authorities below. In our view the only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which reasonable person acting with objectivity may arrive at the finding upholding the charge against him. We are satisfied that there is no need of interference with findings of fact arrived at the departmental enquiry proceedings is absence of any perversity or mala fides. We are of the considered view that there is evidence in support of impugned conclusion arrived at by the authorities below.
17. Dr. Kulkarni further placed reliance on the decision in the case of State Bank of Patiala (supra) in support of his submission that there is violation of a procedural provisions which are generally meant for affording a reasonable and adequate opportunity to the delinquent officer. We do not think that the decision of the Supreme Court in the aforesaid report would in any way help the petitioner. In the earlier paragraph while considering the judgment in case of Hardwari Lal (supra) we have already recorded the reasons for holding that the decision of the Supreme Court in that report would not help the petitioner. For the self same reason we are of opinion that the decision in the report does not cover the case of present petitioner. In fact, violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. There was no violation of the procedural provision in the present case. In our view non-examination of two witnesses does not amount to violation of procedural provision. The present case does not fall under “no notice”, “no opportunity” or “no hearing” categories. The petitioner was given sufficient opportunity to defend himself properly and effectively. He was specifically asked by the concerned Enquiry Officer that whether he would like to examine any witness. To this, the petitioner answered in the negative. We do not agree with the submission of Dr. Kulkarni that Mr. Shirke’s evidence would have disclosed truth and changed conclusion arrived at by the authorities below. It was open for the petitioner to examine Mr. Shirke or Mr. Verma as his witnesses. When we applied test of prejudice, we did not find any proof of prejudice caused to the petitioner.
18. Dr. Kulkarni thereafter placed reliance on the decision of the Supreme Court in the case of Gopal Krishnaji Ketkar (supra) and submitted that withholding of best evidence which would throw light on the issue of controversy, the Court ought to draw adverse inference against the respondent corporation. In view of the finding recorded earlier that no prejudice whatsoever is caused to the petitioner by not examining Mr. Shirke and Mr. Verma, in our view the decision in the report would not in any way support the case of the petitioner. Dr. Kulkarni also placed reliance on the decision of the Apex Court in the case of National Insurance Co. Ltd., (supra) and submitted that it is the duty of the party which is in possession of evidence, which would be helpful in doing justice in the cause to produce the said evidence and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. The Apex Court in report, while dealing with the case under Motor Vehicles Act has made observation in para 10 since the party was in possession of the documents which would have helped in doing justice. We do not think that this case would even remotely help the petitioner.
19. It is settled law that this Court has only power of judicial review of the administrative action of the employer on complaints relating to service conditions of employees. It is the exclusive domain of the Disciplinary Authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that the High Court has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial Review is not an appeal from a decision but a review of the manner in which the decision is made. We are satisfied that in the instant writ petition, the petitioner received fair treatment and conclusion reached is correct. This position of law is no more res integra and has been answered by the Apex Court in the case of S. Subramanian (supra). The Apex Court while considering the powers of the High Court in its judicial review in para 5 held thus:
“The only question is : Whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a Court of Appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same on the Tribunal by Central Administrative Tribunal Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the Disciplinary Authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence has no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence. Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proof of the charge. 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 evidence. In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside. OA/TP/WP stand dismissed.”
20. Similarly, the position of law that not mere violation of natural justice but de facto prejudice had to be proved. We have already observed while considering the merits that no prejudice whatsoever is caused to the present petitioner by non-examining Mr. Shirke and Mr. Verma. The Apex Court in the case of Aligarh Muslim University (supra) in para 19 held thus :
“The principal that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India, Sabyasachi Mukherji, J. (as he then was), also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non issue of notice) had to be proved. It was observed quoting Wade Administrative Law (5th edition, pages 472 to 475) as follows (para 31):
“It is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as to their scope and extent. There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so forth.”
21. This takes us to consider second submission of Dr. Kulkarni, that the punishment, awarded is excessive and that lesser punishment would meet the ends of justice. At the outset, an alternative submissions made by Dr. Kulkarni deserves to be rejected outright. The petitioner as material manager, was required to uphold high degree of honesty and integrity. An employee holding a managerial post should set an example of ideal behaviour for the staff working under him. A Material Manager was required to ensure protection of property of the corporation. Committing theft of an article owned by ones own company, in our view, is a grave misconduct and no leniency could be shown to such an employee. In case of theft, value of the articles would hardly matter because it is an act of theft itself which is punishable. Reinstatement of such an officer, is bound to send wrong signals to other workmen and will make discipline, already a fragile commodity, difficult to maintain. It would be against the interests of other workmen and management, if adequate punishment is not imposed. In our view, therefore, dismissal from service is adequate punishment in the present case. Reliance placed on the decision of Gujarat High Court to the case of R.M. Parmar (supra), would not help the petitioner in the facts and circumstances of the present case. The Gujarat High Court, while dealing with the matter under the provisions of section 11-A of the Industrial Disputes Act, 1947, held that section 11-A can be invoked only if the employees pleads guilty and prays for lenient view. The powers under section 11-A are wide enough to take lenient view which empowers the Labour Court even for imposition of lesser punishment. In our view the reliance placed on the judgment of Gujarat High Court is misplaced. Similarly, the decision of the Apex Court in the case of Jaswant Singh (supra) would also not help the petitioner. The observations of the Supreme Court in the report were made while dealing with the case of a driver of a passenger bus and under section 11-A of the Industrial Disputes Act.
22. It is now well settled position of law that this Court in its jurisdiction under Article 226 of Constitution of India cannot go into question of imposition of punishment. It is for the Disciplinary Authority to consider what should be the nature of punishment to be imposed. The imposition of appropriate punishment cannot be interfered with by this Court under Article 226, unless the findings of Enquiry Officer or the Disciplinary Authority are arbitrary and utterly perverse. The Apex Court in the case of State Bank of India and others (supra) has taken a view that the imposition of an appropriate punishment is within discretion of the Disciplinary Authority, it is not open to the High Court to interfere with it. In para 10 of the report the Supreme Court held thus :
“On the question of punishment, learned Counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may open to the Appellate Authority to interfere with it, but not to the High Court-or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It is not an appeal from a decision, but a review of the manner in which the decision was made. In other words the power of judicial review is meant “to ensure that the indicial receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court.”
This view has been reiterated by the Apex Court in the case of State of U.P. and others v. Nand Kishore Shukla & another, and also in the case of Disciplinary Authority-Cum-Regional Manager and others v. Nikunja Bihari Patnaik, . We are, therefore, unable to persuade ourselves to accede to request of Dr. Kulkarni for lesser punishment to meet the ends of justice of otherwise having regard to nature of misconduct committed by the petitioner we are of the considered view that the petitioner does not deserve any leniency. In view of the findings recorded by us in foregoing paragraphs on merits as well as on point of law, the question of applying test of proportionality in the present petition does not arise.
The petition is accordingly dismissed. Rule stands discharged. No costs.