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CASE NO.: Appeal (civil)  7645 of 2004

PETITIONER: Narinder Mohan Arya

RESPONDENT: United India Insurance Co.Ltd. & Ors

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. Sinha,  J.

       The appellant herein was appointed as an Inspector by the first  respondent.  He was at the material time posted at Hisar.  He issued four  insurance cover notes  in favour of one M/s Aman Singh Munshi Lal (firm)  on 21.10.1976.  The payment in respect of all four cover notes was made by  one cheque.  The three cover notes were issued against goods to be  transported through railways and one cover note for the goods to be  transported by road. The cover notes were despatched from Hisar to its  divisional office at Sirsa which were received on 23.10.1976.  On  22.10.1976 bales of cotton despatched by the firm caught fire.  The appellant  was on leave  from 23.10.1976 to 30.10.1976.  He was in Chandigarh on  23.10.1976.  The said firm raised a claim in respect of the loss of goods  suffered by it in the said incident of fire.  

However, in respect of the said incident a disciplinary proceeding was  initiated against the respondent on or about 11.1.1978 on an  allegation of  antedating one insurance cover note for Rs. 1 lakh after the said fire broke  out on 22.10.1976 which is said to have been issued  on 31.10.76.  In the  departmental proceedings  the Enquiry Officer found him guilty of the said  charge, whereupon  he was removed from service by an order of the  Disciplinary Authority dated 24.7.79.  No second show cause notice  however, was served upon him.  He preferred a departmental appeal in terms  of Rule 37 of the General Insurance (Conduct, Discipline & Appeal) Rules ,  1975 (Rules).  The said appeal was dismissed by an order dated 29.9.1980.  

In the meanwhile, the ’firm’ filed a suit against the respondent herein  for recovery of the insured sum of Rs. 1,22,795.64.  The appellant herein  was also impleaded as a party defendant therein.   In the said suit, inter alia,  the following issues were framed :  "2. Whether valid contract of insurance was  entered into between the plaintiff and defendant  No. 1 through deft. No. 2?   

3.  Whether the contract of insurance entered into  between the plaintiff firm and defendant no. 1  through cover note No. 09643 dated 21.10.76 is  void ab-initio having been obtained in collusion  with defendant No. 2 after the destruction of the  goods through fire \005.."

 On or about 7.10.1980  the trial court decreed the said suit for a sum  of Rs. 98,550.16 on a finding that the said cover note was not antedated.  For  arriving at the said finding, reliance was placed on the opinion of the  handwriting expert.  

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       The first respondent herein being aggrieved by and dissatisfied with  the said judgment and decree dated 7.10.1980 passed in Suit No. 50/59 of  1978-79 preferred an appeal before the said High Court  which was  dismissed by an order dated 4.10.1982.  The matter was not carried further.  

       After delivery of the judgment by the civil court the appellant filed a  memorial bringing to the notice of the Chairman-cum-Managing Director of  the company thereabout, which was dismissed summarily stating:  

"I have considered the Memorial dated 15.11.80  submitted  by Shri N.M. Arya against the order  No. NRO: PER:80:3287 dated 29th September,  1980 of the Appellate Authority, rejecting his  appeal and confirming the penalty of removal from  service.  

       I have also considered the Enquiry  Proceedings and the relevant records.           I do not find any reason to interfere with the  order of the Appellate Authority and the  Competent Authority.  The Memorial is rejected."

       He filed a writ petition before the High Court of Punjab and Haryana  against the said orders  which was marked as Civil Writ Petition No. 3232 of  1981.  The writ petition filed by the appellant was allowed by the High  Court directing the respondent  to reinstate him in service with continuity of  service and full back wages including the benefit of seniority and promotion.    The High Court in support of its judgment relied upon the judgment of the  civil court.  However, the first respondent filed a Letters Patent Appeal  thereagainst before the said High Court which was marked as LPA No. 344  of 1991. By an order dated 16.3.94 the said appeal was dismissed.  A Special  Leave Petition filed thereagainst by the first respondent was marked as SLP  (c) No. 11383/94 and by a judgment and order dated 29.7.94 this Court  remitted the matter back to the learned Single Judge of the High Court  opining that:  

"From the above facts it becomes evident that the  departmental proceedings against the respondent  had concluded in his removal from service.  That  conclusion was passed on the evidence placed  before the Enquiry Officer which was evaluated by  the Disciplinary Authority as well as the  Departmental  Appellate Authority.  In a collateral  suit filed by the consignor for damages for loss of  goods by fire the defence was that the cover was  antedated.  While examining that defence was that  the cover was antedated.  While examining that  defence the civil court came to the conclusion that  the same was not proved.  That, however, cannot  dislodge the decision earlier taken in the  departmental inquiry based on the material and  evidence placed at the said enquiry.  The  correctness or otherwise  of the conclusion reached  by the departmental authorities would depend on  the enquiry recorded and the ultimate conclusion  reached by the authorities can be shaken only on  an evaluation of that record.  Even if a suit had  been filed for setting aside the removal order, the  civil court could not have acted as an appellate  authority.  Therefore, the finding recorded in the  suit cannot dislodge the finding recorded, in  the  enquiry concluded earlier in point of time.   Otherwise the decision of the civil court would

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appear to be one by an appellate authority against  the departmental enquiry on a record that was not  before the Disciplinary Authority."

       A learned Single Judge of the High Court after remittance of the  matter by this Court allowed the said writ petition by an order dated  11.1.2002.  However, on a Letters Patent Appeal filed by the respondent  No.1 herein, by an order dated 13.3.2002 the Division Bench of the High  Court remanded the matter again to the learned Single Judge directing him  not to be influenced by the finding of the Civil Court on issue No. 2 and 3 in  the suit filed by the said firm.   The writ petition filed by the appellant herein  was dismissed  by an order dated 22.5.2002.  The Letters Patent Appeal filed  by the appellant herein has been dismissed by the impugned judgment.  

       Mr. Puneet Bali, learned counsel appearing on behalf of the appellant  in support of the appeal inter alia submitted:  (1)     keeping in view the fact that the subject matter of dispute in the civil  suit as also that of the disciplinary proceedings was the same, and  same evidences have been adduced, the judgment and decree passed  by the Civil Court  was binding upon the first respondent.  (2)     the High Court in the first round of the litigation not only considered  voluminous records of the disciplinary as also the civil court  proceedings and noticed the findings of fact arrived at, which were  relevant for disposal of the writ petition filed by the appellant; but  while passing the impugned judgment, it refused to do so as a result  whereof the appellant had gravely been prejudiced.   (3)     A bare perusal of the report of the Enquiry Officer  would show that  the findings recorded therein were based on no evidence.  (4)     The order of the appellate authority being a non-speaking one the  same was liable to be set aside.  (5)     While disposing of the Memorial, the Chairman-cum-Managing  Director  was bound to take into consideration the relevant fact  namely the judgment and decree passed by the civil court.  

       Mr. Sudhir Kumar Gupta, learned counsel appearing on behalf of the  respondent, on the other hand,  would submit that in view of the fact that the  civil Court could not have acted as an appellate authority  over the order  passed by the disciplinary authority, the High Court’s opinion is  unassailable.    

       The Enquiry Officer in his report dated 5.5.79 recorded the allegations  made as against the appellant in the disciplinary proceedings in the  following terms:  

"The brief facts of the case appear to be that Sh.  N.M. Arya issued a cover note No. 09643 dated  21.10.76 covering a consignment of cotton bales  valued for Rs. One lac in transit from Hansi to  Phulwari Shariff by Truck No. HRR 7297 covering  the risk of Marine Insurance T.P.N.D. and water  damage charging a  premium of Rs. 165/- plus Rs.  1/- as stamp duty totalling Rs. 166/-.  This  consignment  while awaiting transhipment at the  U.P. border near Ghaziabad caught fire  on  22.10.76 resulting into heavy damage to the stock  of cotton bales.  It is alleged that the cover note  No. 09643 was issued on or after 22.10.76 after the  fire had broken out antedating the date of issue on   21.10.76.  This is only one charge and that is that  the cover note No. 09643 was issued after the fire  damage to the consignment had taken place and  cover note was antedated to 21.10.76."

       Before the Enquiry Officer three witnesses were examined on behalf

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of the first respondent being  S/Shri A.R.Sethi, D.D. Jain and K.L.  Manchanda whereas the appellant herein besides examining himself  examined the S/Shri Ferozilal Jain,  B.B. Jain and N.M. Arya.  The Enquiry  Officer noticed that there was no direct oral or documentary evidence or eye  witness to prove the charge.  MW-1 stated that although 23.10.1976 was the  date  put on the said envelop as having been received on that date, he  allegedly saw them lying on his table when he returned to his office on  25.10.76.  He further accepted that a telegram Ext. M-3 dated 24.10.76 was  received from the said firm claiming loss "by fire for goods under the cover  note in question".  MW-3 Shri K.L. Manchanda  was  an assistant in the  Sirsa branch.  He alleged that he did not receive the cover note in question  on 23.10.1976.  Mr. D.D. Jain was an Inspector of the company. He alleged  that a representative of the firm had  approached him on 22.10.1976 to take a  transit insurance cover of cotton bales from Hansi to Phulwari Shariff by  road transport w.e.f. 21.10.1976 which he refused.  He was, however,  offered a sum of Rs. 15,000/- to Rs. 20,000/- as temptation to cover the risk  of the cotton bales already damaged.  He not  only declined the offer, but he  intimated thereabout to Shri S.P. Malhotra, the Branch Manager at Hisar.  The Enquiry Officer noticed:  

"Apart from these two  witnesses the charge  sheeted employee himself  had examined as a  witness.  I observe from the statement of the  Management witness that none of them are  able to  give direct account as to the conduct of the charge  sheeted employee with regard to the alleged mis- conduct."

       It was further noticed that in the register the date of the cover note was  originally written as 22.10.1976.  For the afore-mentioned purpose, the  Enquiry Officer took help of magnifying glass and on the basis of doubt  created in his mind as to the veracity of the contention of the appellant, came  to the conclusion that the same was despatched only on 23.10.1976.  In the  said report it has been accepted that the appellant emphatically denied any  over writing in the said despatch register.  The Enquiry Officer proceeded on  a hypothesis as regard the delay in conveying the information to the  company by 48 hours by the said Firm.   

Ordinarily, we would not have referred to the findings of the Enquiry  Officer.  He was entitled to draw his own inference and so long as the  inference drawn by him is supported by some materials on record, it is well  settled that a Court of judicial review would not interfere therewith. We have  further noticed hereinbefore marked features of this case which make this  case stand apart from other cases.   

The self-same issue fall for consideration before a competent Civil  Court.  In the Civil Court a hand writing expert was examined who was of  the opinion that instead and place of altering the despatch register from 23rd  to 22nd it was really the other way round, namely, it was originally 22nd but  the same had been altered to 23rd.   Before the Civil Court also both Mr.  A.R. Sethi and Mr. D.D. Jain were examined.  Some of the witnesses on  behalf of the respondent were also examined.  The Civil Court held :

"If the original entry had been 23/10, then the  figure ‘3’ would have been written as written in  the next serial number and it only shows that the  original figure was 22.  An effort has been made to  convert it into 23.  So, it is just possible that  defendant No.1 after taking into possession the  despatch register might have tried to convert it into  23 just to create confusion."

       As regard the purported forgery committed by the appellant herein the  Civil Court observed that respondent No.1 miserably failed to prove the  same.  It was held:

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"In view of my discussion above, I hold that a  valid contract of insurance was entered into  between the plaintiff and defendant No.1 through  defendant No.2 through cover note No.09643  dated 21.10.76 Ex P-10 and it had not been  obtained by plaintiff firm in collusion with  defendant No.2 after the destruction of the goods  through fire.  Accordingly, both these issues  decided in favour of the plaintiff and against the  contesting defendants."

       The first appellate court also went into the said question in great  details and came to the following conclusion : "It is further to mention that on the same day, three  more cover notes Ex.P.7 to Ex.P.9 with regard to  three other consignments were issued by defendant  No.2 in favour of the plaintiff firm, the correctness  of which was not challenged at any stage.  It is also  fruitful to note that defendant no.1 got encashed  the cheque pertaining to all the cover-notes.  A  resume of the above facts would show that the  plaintiff successfully proved that a valid contract  of insurance had come into existence and it was  rightly held so by the learned trial court under  issue no.2."                           It is not in dispute that the second appeal preferred by the respondent  against the said judgment was dismissed.  The said decree has also been  acted upon.  It attained finality.   

       On an earlier round of litigation, i.e. in the writ proceedings the  appellant succeeded both before the learned Single Judge as also the  Division Bench.  The High Court proceeded on the basis that the findings of  the Civil Court would prevail over the findings of the Enquiry Officer.   However, this Court did not agree with the said findings on the ground that  the scope of the jurisdiction of the Civil Court in a matter arising of the  departmental proceedings in a suit filed by a third party impleading both the  parties herein as defendants and  the principle of res judicata  will have no  application as even if a suit was filed for setting aside the  order of removal,  the  civil court could not have acted as an appellate authority.  This Court,  however, had no occasion to consider as to what extent the judgment and  decree passed by the civil court would have been relevant in the subsequent  departmental proceeding.  It was also not suggested that the civil court  would have no jurisdiction to interfere with the order of penalty even if the  same was found to be based on no evidence.

It is, however, beyond any controversy that when a crucial finding  like forgery was arrived at on an evidence  which is non est  in the eyes of  law, the civil court would have jurisdiction to interfere in the matter.           This Court remitted the matter back to the learned Single Judge of the  High Court for disposal on other points raised by the appellant in the writ  petition.           The learned Single Judge as noticed hereinbefore directed the  appointment of a fresh enquiry officer on the premise that the judgment of  the Civil Court is a relevant piece of evidence.   

The Division bench, however, set aside the said judgment stating that  in view of the unequivocal observations made by this Court as regard the  findings recorded in the civil suit by the firm cannot dislodge the findings  recorded by the enquiry officer  and in that view of the matter the learned

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Single Judge was not justified in quashing the punishment. The Division  Bench observed that the judgment of the Single Judge suffers from mutually  destructive findings.   

       In its judgment, after remand, the learned Single Judge quoted almost  the entire order of the Enquiry Officer and without discussing the issues  raised therein held:  "(1) \005When these types of acts are committed by  an employee  to the disadvantage of the employer,  these are committed in secrecy and in conspiracy   with the person affected by the accident\005  

(2) \005It is a settled principle of law that High  Court cannot sit as a court of appeal over the  findings of the appellate authority and that is the  reason the Hon’ble Supreme Court in various  judgments said that while dealing with such like  cases, we have to make a distinction whether it is a  case of "some evidence" or of "no evidence"...  

(3) \005The sufficiency of proof like a criminal  charge is not required in the departmental  proceedings nor the strict provisions of Indian  Evidence Act are applicable.  The moment it is  established to the conscious of the Court that the  opinion formulated by the inquiry officer could be  reasonably formulated by an ordinary prudent  man, then in such eventuality such decision of the  Inquiry Officer  should not be interfered with\005."

       By reason of the impugned judgment the Division Bench  dismissed  the intra-court appeal filed by the appellant summarily.  

       In our opinion the learned Single Judge and consequently the Division  Bench of the High Court did not pose unto themselves the correct question.   The matter can be viewed from two angles.  Despite limited jurisdiction a  civil court, it was entitled to interfere in a case where the report of the  Enquiry Officer is based on no evidence.  In a suit filed by a delinquent  employee  in a civil court as also a writ court, in the event the findings  arrived at in the departmental proceedings are questioned before it should  keep in mind the following: (1) the enquiry officer is not permitted to collect  any material from outside sources during the conduct of the enquiry. [See  State of Assam & Anr. V. Mahendra Kumar Das & Ors.[ (1970) 1 SCC  709 : AIR 1970 SC 1255]  (2) In a domestic enquiry fairness in the  procedure is a part of the principles of natural justice [See  Khem Chand V.  Union of India & Ors., AIR 1958 SC 300 and State of Uttar Pradesh v.  Om Prakash Gupta, (1969) 3 SCC 775].   (3) Exercise of discretionary  power involve two elements \026 (i) Objective and (ii) subjective and existence  of the exercise of  an objective element is a condition precedent for exercise  of the subjective element. [See K.L. Tripathi V. State of Bank of India &  Ors. [ (1984) 1 SCC 43 : AIR 1984  SC 273]. (4) It is not possible to lay  down any rigid rules of the principles of natural justice which depends on  the facts and circumstances of each case but the concept of fair play in  action is the basis. [See Sawai Singh V. State of Rajasthan [ AIR 1986 SC  995]  (5) The  enquiry officer is not permitted to travel beyond the charges  and any punishment imposed on the basis of a finding  which  was   not  the  subject matter  of the charges is wholly illegal. [See Director (Inspection   & quality Control) Export Inspection Council of India & Ors. Vs.  Kalyan Kumar Mitra & Ors. [ 1987 (2) CLJ 344].  (6) Suspicion or  presumption cannot take the place of proof even in a domestic enquiry.  The  writ court is entitled to interfere with the findings of the fact of any tribunal  or authority  in certain circumstances. [See Central Bank of India Ltd. V.  Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v. Commissioner  of Police and Others, (1999) 2 SCC 10].

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       We may notice that this Court in Ramendra Kishore Biswas V.  State of Tripura & Ors. [1999 (1) SCC 472] was clearly of the opinion that  a civil suit challenging the legality of a disciplinary proceeding and  consequent order of punishment is maintainable.  Even this Court in its order  dated 29.7.1994 said so. It is interesting to note that in the celebrated  judgment of this Court in  State of U.P. v. Mohammad Nooh [AIR 1958  SC 86] this Court opined:  

"On the authorities referred to above it appears to  us that there may conceivably be cases \026 and the  instant case is in point-where the error, irregularity  or illegality touching jurisdiction or procedure  committed by an inferior court or tribunal of first  instance is so patent & loudly obtrusive that it  leaves  on its decision an indelible stamp of  infirmity or vice which cannot be obliterated or  cured on appeal or revision.  If an inferior court or  tribunal of first instance acts wholly without  jurisdiction or patently in excess of jurisdiction or  manifestly conducts the proceedings before it in a  manner which is contrary to the rules of natural  justice and all accepted rules of procedure and  which offends the superior court’s sense of fair  play the superior Court may, we think, quite  properly exercise its power to issue the prerogative  writ of certiorari to correct the error of the court of  tribunal of first instance, even if an appeal to  another inferior court or tribunal was available and  recourse was not had to it or if recourse was had to  it, it confirmed what ex facie was a nullity for  reasons aforementioned.  This would be so also the  more if the tribunals holding the original trial and  the tribunals hearing the appeal or revision were  merely departmental tribunals composed of  persons belonging to the departmental hierarchy  without adequate legal training and background  and whose glaring lapses occasionally come to our  notice."  (Emphasis supplied)

       Yet again in  Sher Bahadur V. Union of India & Ors. [2002 (7)  SCC 142]  this Court observed:   

"It may be observed that the expression  "sufficiency of evidence" postulates existence of  some evidence which links the charged officer  with the misconduct alleged against him.  Evidence, however voluminous it may be, which is  neither relevant in a broad sense nor establishes  any nexus between the alleged misconduct and the  charged officer, is no evidence in law. The mere  fact that the enquiry officer has noted in his report,  "in view of oral, documentary and circumstantial  evidence as adduced in the enquiry", would not in  principle satisfy the rule of sufficiency of  evidence. Though, the disciplinary authority cited  one witness Shri R.A. Vashist, Ex. CVI/Northern  Railway, New Delhi, in support of the charges, he  was not examined. Regarding documentary  evidence, Ext. P-1, referred to in the enquiry report  and adverted to by the High Court, is the order of  appointment of the appellant which is a neutral  fact. The enquiry officer examined the charged

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officer but nothing is elicited to connect him with  the charge. The statement of the appellant recorded  by the enquiry officer shows no more than his  working earlier to his re-engagement during the  period between May 1978 and November 1979 in  different phases. Indeed, his statement was not  relied upon by the enquiry officer. The finding of  the enquiry officer that in view of the oral,  documentary and circumstantial evidence, the  charge against the appellant for securing the  fraudulent appointment letter duly signed by the  said APO (Const.) was proved, is, in the light of  the above discussion, erroneous. In our view, this  is clearly a case of finding the appellant guilty of  charge without having any evidence to link the  appellant with the alleged misconduct. The High  Court did not consider this aspect in its proper  perspective as such the judgment and order of the  High Court and the order of the disciplinary  authority, under challenge, cannot be sustained,  they are accordingly set aside."

       It is also of some interest to note that the first respondent itself, in the  civil suit filed by the firm relied upon a copy of the report of the Enquiry  Officer.  The first respondent, therefore, itself invited comments as regard  the existence of sufficiency of evidence/acceptability thereof and, thus, it  may not now be open to them to contend  that the report of the Enquiry  Officer was sacrosanct.  

       We have referred to the fact of the matter in some details as also the  scope of judicial review only for the purpose of pointing out that neither the  learned Single Judge nor the Division Bench of the High court considered  the question on merit at all.  They referred to certain principles of law but  failed to explain as to how they apply in the instant case in the light of the  contentions raised before it. Other contentions raised in the writ petition also  were not considered by the High Court.   

We may for the aforementioned purpose take note of the extant rules  operating  in the field.  Requirements of consideration in an appeal from an  order of the disciplinary authority by the appellate authority is contained in  Rule 37 whereas the provisions as regards filing of a memorial are contained  in Rule 40 thereof, which read as under:  

"37. Consideration of Appeals- (1) In case of an  appeal against an order of suspension, the appellate  authority shall consider whether in the light of the  provisions of Rule 20 and having regard to the  circumstances of the case  the order of suspension  is justified or not and confirm or revoke the other  accordingly.  

(2) In the case of an appeal against an order  imposing any of the penalties specified in Rule 23,  the appellate authority shall consider:  

(a)     Whether the procedure prescribed in these  Rules has been complied with and if not,  whether such non-compliance  has resulted in  failure of justice;  (b)     Whether the findings are justified; and  (c)     Whether the penalty imposed is excessive,  adequate or inadequate, and pass orders:  

I.      setting aside, reducing, confirming or  enhancing the penalty; or

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II.     remitting the case to the authority which  imposed the penalty or to any other  authority with such direction as it may  deem fit in the circumstances of the case.  

"40 \026 Memorial \026 An employee whose appeal  under these Rules has been rejected by the  Chairman/Chairman-cum-Managing Director or in  whose case such appellate authority has enhanced  the penalty either on appeal under Rule  24 or on  review under Rule 39 (2) may address a memorial  to  the Chairman/Chairman-cum-Managing  Director in respect of that matter within a period of  a 6 months from the date the appellant received a  copy of the order of such appellate authority."

       The appellate authority, therefore, while disposing of the appeal is  required to apply his mind with regard to the factors enumerated in sub-rule  2 of Rule 37 of the Rules.  The judgment of the civil court being inter parties  was relevant.  The conduct of the appellant as noticed by the civil court was  also relevant.  The fact that the respondent has accepted the said judgment  and acted upon it would be a relevant fact.  The authority considering the  memorial could have justifiably came to a different conclusion having  regard to the findings of the civil court.  But, it did apply its mind.  It could  have for one reason or the other refused to take the subsequent event into  consideration, but as he had a discretion in the matter, he was bound to  consider the said question. He was required to show that he applied his mind  to the relevant facts  He could not have without expressing his mind simply  ignored the same.  

       An appellate order if it is in agreement with that of the disciplinary  authority may not be a speaking order but the authority passing the same  must show that there had been proper application of mind on his part as  regard the compliance of the requirements of law while exercising his  jurisdiction under Rule 37 of the Rules.   

In Apparel Export Promotion Council V. A.K. Chopra [ 1999(1)  SCC 759]  which has heavily been relied upon by Mr. Gupta, this Court  stated:  

"The High Court appears to have overlooked the  settled position that in departmental  proceedings,  the disciplinary authority is the sole judge of facts  and in case an appeal is presented to the appellate  authority, the appellate authority has also the  power/and jurisdiction to re-appreciate the  evidence and come to its own conclusion, on facts,  being the sole fact-finding authorities."  

(Emphasis supplied)

       The appellate authority, therefore, could not ignore to exercise the  said power.

The order of the appellate authority demonstrates total non-application  of mind.  The appellate authority, when the rules require application of mind  on several factors and serious contentions have been raised, was bound to  assign reasons so as enable the writ court to ascertain as to whether he had  applied his mind to the relevant factors which the statute requires him to do.    The expression ’consider’ is of some significance.  In the context of the  rules, the appellate authority was required to see as to whether (i) the  procedure laid down in the rules was complied with; (ii) the Enquiry Officer  was justified in arriving at the finding that the delinquent officer was guilty  of the misconduct alleged against him; and (iii) whether penalty imposed by

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the disciplinary authority was excessive.           In R.P. Bhatt V. Union of India [ (1986) 2  SCC 651] this Court  opined:           "The word "consider" in Rule 27(2) implies "due  application of mind". It is clear upon the terms of  Rule 27(2) that the Appellate Authority is required  to consider (1) whether the procedure laid down in  the Rules has been complied with; and if not,  whether such non-compliance has resulted in  violation of any provisions of the Constitution or  in failure of justice; (2) whether the findings of the  disciplinary authority are warranted by the  evidence on record; and (3) whether the penalty  imposed is adequate; and thereafter pass orders  confirming, enhancing etc. the penalty, or may  remit back the case to the authority which imposed  the same. Rule 27(2) casts a duty on the Appellate  Authority to consider the relevant factors set forth  in clauses (a), (b) and (c) thereof.

There is no indication in the impugned order that  the Director General was satisfied as to whether  the procedure laid down in the Rules had been  complied with; and if not, whether such non- compliance had resulted in violation of any of the  provisions of the Constitution or in failure of  justice. We regret to find that the Director General  has also not given any finding on the crucial  question as to whether the findings of the  disciplinary authority were warranted by the  evidence on record. It seems that he only applied  his mind to the requirement of clause (c) of Rule  27(2) viz. whether the penalty imposed was  adequate or justified in the facts and circumstances  of the present case. There being non-compliance  with the requirements of Rule 27(2) of the Rules,  the impugned order passed by the Director General  is liable to be set aside."

       In paragraph 13 of the memorial the appellant at the first opportunity  raised a contention that the order of the appellate authority was not a  speaking order at all, besides drawing the attention of the Chairman-cum  Managing Director to the subsequent event namely the judgment and decree  passed by the civil court. The said authority again did not apply its mind  while passing his order dated 31st March, 1981.  When such a contention  was raised, it was obligatory on the part of the Chairman-cum-Managing  Director while exercising its statutory jurisdiction to show that he had  applied his mind to the contentions raised. Such application of mind on his  part is not apparent from the order.  The departmental proceedings are quasi  criminal in nature.  

       Under certain circumstances, a decision of a civil court is also binding  upon the criminal court although, converse is not true. [See M/s Karamchand  Ganga Pershad & Anr. V. Union of India & Ors. [AIR 1971 SC 1244].   However, it is also true that the standard of proof in a criminal case and civil  case is different.     

       We may notice that in  Capt. M. Paul Anthony V. Bharat Gold Mines  Ltd. & Anr.      [1993 (3) SCC 679] this Court observed:  "Since the facts and the evidence in both the  proceedings, namely, the departmental proceedings

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and the criminal case were the same without there  being any iota of difference, the distinction, which  is usually drawn as between the departmental  proceedings and the criminal case on the basis of  approach and burden of proof, would not be  applicable to the instant case."

                 We may not be understood to have laid down a law that in all such  circumstances the decision of the civil court or the criminal court would be  binding on the disciplinary authorities as this Court in a large number of  decisions points point that the same would depend upon other factors as  well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor  Sangh & Anr. [ 2004 (8) SCC 200] and Manager, Reserve Bank of India  Bangalore V. S. Mani & Ors. [ 2005 (5) SCC 100].  Each case is, therefore,  required to be considered on its own facts.   

       It is equally well settled that the power of judicial review would not  be refused to be exercised by the High Court, although despite it would be  lawful to do so.  In  Manager, Reserve Bank of India Bangalore (supra)   this Court observed:  

"The findings of the learned Tribunal, as noticed  hereinbefore, are wholly perverse. It apparently  posed unto itself wrong questions.  It placed onus  of proof wrongly upon the appellant.  Its decision  is based upon irrelevant factors not germane for  the purpose of arriving at a correct finding of fact.   It has also failed  to take into consideration the  relevant factors.  A case for judicial review, thus,  was made out."

       In that case also, in view of the admissions made by the Management  witness, it was found that tribunal’s findings were based on no evidence and,  thus, irrational. This Court also noticed that the circumstances relied upon by  the tribunal were wholly irrelevant stating:  

"The circumstances relied upon, in our opinion,  are wholly irrelevant for the purpose of  considering as to whether the respondents have  completed 240 days of service or not.  A party to  the lis may or may not succeed in its defence.  A  party to the lis may be filing representations or  raising demands, but filing of such representations  or raising of demands cannot be treated as  circumstances to prove their case."

       The Judgment and order of the learned Single Judge suffers from  several infirmities.  He had observed that ’the disadvantages of an employer  as such acts are committed in secrecy and in conspiracy with the person  affected by the accident’.  No such finding has been arrived at even in the  disciplinary proceedings nor any charge was made out as against the  appellant in that behalf.  He had no occasion to have his say thereupon.     Indisputably, the writ court will bear in mind the distinction between some  evidence  or no evidence but the question  which was required to be posed   and necessary should have been as to whether some evidence adduced would  lead to the conclusion as regard the guilt of the delinquent officer or not.   The evidence adduced on behalf of the management must have nexus with  the charges.  The Enquiry Officer cannot base his findings on mere  hypothesis.  Mere ipso dixit on his part cannot be a substitute of evidence.

       The findings of the learned Single Judge to the effect that ’it is  established with the conscience (sic) of the Court reasonably formulated by  an Enquiry Officer then in the eventuality’ may not be fully correct   inasmuch as the Court while exercising its power of judicial review should

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also apply its mind as to whether sufficient material had been brought on  record to sustain the findings.  The conscience of a court may not have much  role to play.    It is unfortunate that the learned Single Judge did not at all  deliberate on the contentions raised by the appellant.  Discussion on the  materials available on record for the purpose of applying the legal principles  was imperative.  The Division Bench of the High Court also committed the  same error.  

       The matter may be considered from another angle.  The order of the  disciplinary authority, in view of the statutory provisions, merged with the  order of the appellate authority as also that of the Chairman-cum-Managing  Director as the appellate proceedings are in continuation of the original  proceedings and, thus, the doctrine of merger shall apply. [See   Kunhayammed & Ors. V. State of Kerala & Anr. [(2000) 6 SCC 359].  

A revisional jurisdiction as is well known involves exercise of  appellate jurisdiction. [See Shankar Ramchandra Abhyankar V. Krishnaji  Dattatraya Bapat, AIR 1970 SC 1 and Nalakath Sainuddin v. Koorikadan  Sulaiman, (2002) 6 SCC 1].

Mr. Bali, learned counsel appearing on behalf of the appellant raised a  contention that the disciplinary proceedings was vitiated  as the authorities  acted mala fide and with a biased attitude.  We do not find any substance  therein.   

       For the foregoing reasons the impugned judgments cannot be  sustained which are set aside accordingly. Although, the consequence of  setting aside of the said orders would have been to remit the matter back to  the disciplinary authority for consideration of the matter afresh on merit, but  having regard to the fact that the disciplinary proceedings were initiated  against the appellant as far back in 1976, we refrain ourselves from doing so.  He indisputably, have suffered a lot. However, the question which arises is  what relief should be granted to the appellant.  The appellant shall be  reinstated in service.  We, however, while directing reinstatement of the  appellant, keeping in view of the fact that no work had been taken from him,   direct that only 50% of the back wages shall be payable.  The appeal is  allowed with the abovementioned  directions.  

       In the facts and circumstances of the case the parties shall bear their  own costs.