JUDGMENT
Dilip Gupta, J.
1. This writ petition has been filed for quashing the order dated 22nd January, 1997 by which the petitioner, who had been working as a Chawkidar in the office of the Regional Food Controller, was dismissed from service.
2. A charge-sheet dated 9th January, 1997 was issued to the petitioner containing two charges in respect of the irregularities committed by the petitioner while he was posted as the Barrier Chawkidar at Tadiya Godown, Lalitpur. The first charge was that the petitioner along with Sri Malkhan Chawkidar went to the godown after taking the keys from Sri M.U. Ansari, Assistant Regional Food Controller, Lalitpur and after opening the godown took out two bags of imported sugar which were subsequently loaded in a tempo for being taking to the residence of Sri M.U. Ansari. This was objected to by Sri Munni Lal godown Chawkidar and the matter was also reported to the police authorities who took the imported bags of sugar into custody and initiated criminal proceedings. In this manner the petitioner made an attempt to commit theft of the embezzled government property. The second charge was also in connection with the aforesaid incident and was that on 29th October, 1994 the petitioner made attempts to deliver the two bags of imported sugar at the residence of Sri M.U. Ansari, Assistant Regional Food Controller, Lalitpur after taking them out from the godown knowing fully well that the said bags of sugar were meant for distribution to the public. Thus in collusion with the said Sri Ansari, the petitioner made attempts to misappropriate the sugar and cause loss of government property. It may be pointed out that prior to the issuance of the aforesaid charge-sheet, the petitioner had been suspended by the order dated 13th February, 1995 and Sri Atar Singh had been appointed as the Enquiry Officer. The petitioner submitted a reply dated 27th January, 1996 to the aforesaid charge-sheet and thereafter Sri Atar Singh submitted an enquiry report but it was not accepted by the Disciplinary Authority and by the order dated 26th September, 1996 another Enquiry Officer Sri B.B. Lal Srivastava was appointed. Opportunity was granted to the petitioner by the Enquiry Officer for personal hearing/cross-examination on 3rd April, 1996 and 11th April, 1996 and thereafter the enquiry report dated 19th November, 1996 was submitted to the Disciplinary Authority, The Enquiry Officer in his detailed report considered the evidence available on record and both the charges were found to be proved.
3. A communication dated 11th December, 1996 was thereafter sent to the petitioner enclosing a copy of the enquiry report and the petitioner was asked to show-cause why a major penalty should not be imposed upon him. In response to the aforesaid show-cause notice, the petitioner submitted a letter dated 16th December, 1 996 and made a request for supply of the earlier enquiry report submitted by Sri Atar Singh and also demanded copies of the statement of the witnesses recorded during the enquiry. A communication dated 31st December, 1996 was then sent to the petitioner enclosing certified copies of the documents demanded by the petitioner but instead of submitting a reply to the show-cause notice, the petitioner again sent a communication dated 1st January, 1997 and made a request for certain other documents and also typed copies of the documents supplied to the petitioner. A reply dated 7th January, 1997 was sent to the petitioner in connection with the aforesaid communication mentioning that the petitioner can peruse the original documents in the office by 9th January, 1997. However, inspite of the aforesaid opportunity having been granted, the petitioner did not think it proper to peruse the original documents and nor did he submit any reply. This compelled the Disciplinary Authority to send the communication dated 13th January, 1997 to the petitioner by which another opportunity was granted to the petitioner to inspect the original documents in the office by 13th January, 1997 and submit his reply by 20th January, 1997. The said letter was received by the petitioner on 16th January, 1997. The petitioner submitted a reply, which was received in the office on 17th January, 1997. The Disciplinary Authority considered the evidence on record including the reply submitted by the petitioner and thereafter passed the detailed order dated 22nd January, 1997 running into 11 typed pages by which the petitioner was dismissed from service.
4. I have heard Sri A.K. Srivastava learned Counsel for the petitioner and the learned Standing Counsel appearing for the respondents and have perused the materials available on record.
5. learned Counsel for the petitioner placed heavy reliance upon the judgment dated 24th September, 2004 of this Court in Writ Petition No. 12245 of 1997 filed by Malkhan. The said petition had been filed by Malkhan against the dismissal order dated 22nd January, 1997. learned Counsel for the petitioner submitted that since the charge-sheet indicates that the petitioner had taken out two bags of sugar along with Malkhan and as the petition filed by Malkhan had been allowed, this petition should also be allowed.
6. I have carefully perused the judgment and order dated 24th September, 2004 passed by me but find that the said judgment is not applicable to the facts of this case since that petition had been allowed solely on the ground that after the receipt of the letter dated 13th January, 1997 the petitioner submitted a letter dated 16th January, 1997 seeking 15 days time to submit a reply which was granted to him but at the same time the dismissal order was also passed. It is in such circumstances that the impugned order of dismissal was set aside and the petitioner was granted time to file reply to the show cause notice dated 16th December, 1996 so that the respondents could pass appropriate orders. In the present case, the petitioner had submitted a reply to the show cause notice which was considered and then the dismissal order was passed. The said decision is, therefore, of no benefit to the petitioner.
7. learned Counsel for the petitioner then submitted that principles of natural justice had been violated in the conduct of the enquiry as the statements sought for by the petitioner in his letter dated 16th December, 1996 had not been supplied to him. Learned Standing Counsel, however, on the other hand submitted that the documents had in fact been supplied to the petitioner by the letter dated 31st December, 1996 which fact had not been denied since in response to this letter the petitioner only stated that the documents that had been supplied were not legible and so typed copies should be supplied. Opportunity was, therefore, given to the petitioner to inspect the same in the office but the petitioner failed to avail this opportunity. Therefore, in such circumstances, the petitioner is not justified in contending that the principles of natural justice had been violated.
8. I find considerable force in the contention advanced by the learned Standing Counsel. The impugned order dated 22nd January, 1997 clearly mentions that in response to the communication dated 16th December, 1996 sent by the petitioner for giving him copies of certain documents, the Disciplinary Authority by the letter dated 31st December, 1996 supplied the aforesaid documents to the petitioner who, however, by his letter dated 1st January, 1997 demanded typed copies as the copies supplied by the department were not legible. In order to overcome this, the department informed the petitioner by the communication dated 7th January, 1997 and 13th January, 1997 that he can inspect the original documents in the office but the petitioner did not do so. The petitioner has not denied the receipt of the letters dated 7th January, 1997 and 13th January, 1997. In such circumstances, it does not lie in the mouth of the petitioner to contend that the documents sought for had not been supplied to him.
9. learned Counsel for the petitioner also submitted that a copy of the enquiry report had not been supplied to the petitioner and, therefore, the dismissal order should be set aside and in support of his contention he placed reliance upon a decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. and Union of India and Ors. v. Mohd. Ramzan Khan .
10. The records reveal that the aforesaid contention of the learned Counsel for the petitioner is not correct inasmuch as a bare perusal of the letter dated 11th December, 1996 indicates that the copy of the enquiry report was enclosed along with the letter. The petitioner submitted a reply to the aforesaid letter dated 1 lth December, 1996 in which he did not raise any issue about the non-supply of the enquiry report dated 19th November, 1996 submitted by the second Enquiry Officer. The request, which had been made by the petitioner, was to supply copy of the earlier enquiry report submitted by Sri Atar Singh. The impugned order dated 22nd January, 1997 further shows that by the letter dated 31st December, 1996 of the documents sought for by the petitioner had been supplied to him. In his reply dated lst January, 1997 the petitioner has not stated that these documents had not been received by him and all that he mentioned was that the copies were not legible. The Disciplinary Authority also gave opportunity to the petitioner to inspect the original documents in the office. The petitioner should have utilized the opportunities granted to him by the Disciplinary Authority to inspect the documents but the order indicates that the petitioner did not avail of the opportunities. In paragraph 16 of the petition only a bald statement has been made that copies of the documents and evidence relied upon for dismissal by the Disciplinary Authority were not supplied to the petitioner. In my opinion, in view of the specific statement contained in the impugned order dated 22nd January, 1997, it was for the petitioner to have pointed out the specific documents, if any, which had not been supplied to him and the making of a general statement does not serve any purpose.
11. In this connection reference may be made to the decision of the Supreme Court in the case of State of U.P. v. Ramesh Chandra Mangalik 2002 Lab. I.C. 978 in which it has been observed:
learned Counsel for the appellant has further submitted that particular documents copies of which are said to have not been supplied are not indicated by the respondent much less in the order of the High Court nor their relevance has been pointed out. The submission is that the delinquent will also have to show as to in what manner ‘ any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non-furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in 1987 (Supp) SCC 518 Chandrama Tewari v. Union of India. It has been observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent. The inquiry would not be vitiated in such circumstances. In State of Tamil Nadu v. Thiru K.V. Perumal and Ors. relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned Counsel for the appellant State of U.P. v. Harendra Arora and Anr., it has been held that a delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground.
learned Counsel for the appellant submitted that no material or document has been relied upon by the Inquiry Officer, copy of which or inspection thereof may not have been allowed to the respondent. No material has been obtained after the date of hearing nor any such material has been made use of by the Inquiry Officer. It is further submitted that in the judgment of the High Court it has nowhere been indicated that any material or document, copy of which has not been supplied to the respondent, was used much less any prejudice, if caused to the respondent. learned Counsel for the respondent could not pinpoint any particular document which may have been made use of by the Inquiry Officer for establishing the charges leveled against the respondent, copies of which or inspection thereof may not have been allowed to the delinquent by the Department. No submission has been advanced on behalf of the respondent on the point of prejudice which may have been caused to the respondent by non-supply of document, if any. The High Court has also not gone into the question of the relevance of the documents copies of which are said to have not been supplied to the respondent and consequent prejudice, if caused. We therefore find that the finding of the High Court that principles of natural justice have been violated for non-supply of documents to the respondent is not sustainable. The cross-examination of a witness which was sought for, had unfortunately died which fact was also brought to the notice of the respondent.
12. learned Counsel for the petitioner then contended that the findings recorded by the Enquiry Officer were vitiated. In effect he wanted the Court to re-appraise the evidence. Regarding re-appreciation of evidence by the High Court, the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar v. Udaysingh s/o Ganpatrao Naik Nimbalkar and Ors. clearly held as follows:
…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 a 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 reappreciate the evidence and would (sic) 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 no evidence. This is the consistent view of this Court vide B.C. Chaturvedi v. Union of India , State of Tamil Nadu v. T.V. Venugopalan , Union of India v. Upendra Singh , Government of Tamil Nadu v. A. Rajapandian and B.C. Chaturvedi v. Union of India (at pp. 759-60).
13. The Supreme Court in Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. held as follows:
Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained.
14. In R.S. Saini v. State of Punjab, the Supreme Court observed as follows:
Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.
15. In the case of Lalit Popli v. Canera Bank and Ors. , the Supreme Court observed as follows:
While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
16. learned Counsel for the petitioner could not point out any finding recorded by the enquiry officer which could be termed as perverse and nor could he point out any error of law leading to manifest injustice. In such circumstances, there is no merit in this contention of the learned Counsel for the petitioner.
17. learned Counsel for the petitioner then contended that the order imposing punishment is disproportionate. This argument has been seriously opposed by the learned Standing Counsel and it has been submitted that in the present case, dismissal from service was the only appropriate punishment. In order to examine this contention it may be useful to refer to certain cases decided by the Hon’ble Supreme Court.
18. In B.C. Chaturvedi v. Union of India and Ors. , the Supreme Court after referring to a number of its earlier decisions observed as under:
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with ad view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
19. In Regional Manager, U.P. SRTC, Etawah and Anr. v. Hoti Lal and Anr. the Supreme Court observed as under:
If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and. unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal.
(emphasis supplied)
20. In V. Ramana v. A.P. SRTC and Ors. the Hon’ble Supreme Court observed:
The common thread running through in all these decisions is that the court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare eases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
(Emphasis supplied)
21. It must, therefore, be ensured that any conduct that damages, destroys, defeats or tends to defeat the working of the system should be met with disciplinary action particularly when the charged employee holds a position of trust where honesty and integrity are in-built requirements of functioning. In such cases misconduct must be dealt with iron hands. The Courts can interfere with the punishment imposed by the disciplinary authority only when it shocks the conscience of the Court or when it is illogical. In effect, where the charge is serious relating to integrity and honesty, the dismissal order should not be interfered with. In the present case the charges levelled against the petitioner are very serious in nature. The petitioner had made an attempt to commit theft and misappropriate the sugar. It cannot, therefore, be said that the punishment is so disproportionate that it would shock the conscience of the Court. In view of the aforesaid, this contention of the learned Counsel for the petitioner cannot be accepted.
22. There is, therefore, no merit in this petition. It is, accordingly, dismissed.