Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5549 OF 2009 (Arising out of SLP © No. 1848/2009)

State of U.P. & Anr.         ..Appellants

Versus

Man Mohan Nath Sinha & Anr.        ..Respondents   

J U D G E M E N T

R.M. LODHA, J.

Leave granted.

2.          The question that this Court   is called upon to  

determine in this appeal by special leave is: whether  the  

High  Court  was  justified  in  quashing  the  order  dated  

November 24, 2003, whereby the respondent No. 1 was  

dismissed from service?

3. Man Mohan Nath Sinha , respondent No.1, was posted as  

Private Secretary (Class II) to the then State Minister, Minor Irrigation,  

Shri  Ram Asrey Paswan,  where  he worked  from  November  18,  

1997 to  April  24, 1999.   He is said to have misappropriated the  

government money while he was  attached as Private Secretary to  

the then  State  Minister.  The Vigilance Department after holding an  

enquiry   against  respondent  No.1  sought  his  prosecution  under  

Sections 408, 409, 420,  IPC,  as well as under Sections 13 (1) (b)  

read  with  13  (2)  of  the  Prevention  of  Corruption  Act,  1988.   On  

October 9, 2001, the respondent No.1 was placed under suspension.  

The disciplinary  proceedings were also initiated against him  and he  

was served with the chargesheet on October 19, 2001.  The principal  

charge against the respondent No.1 was that  while  being attached  

as a Private Secretary to the State Minister, Minor Irrigation, he took  

undue advantage  of the ignorance and disability  of the Minister and  

acted in violation  of his duties as a Private Secretary  by drawing a  

total   of  Rs.  37,00,304/-  from   the  State  Minister’s  Saving  Bank  

Account No. 8002, State Bank of India, Secretariat Branch, Lucknow,  

and out of the amount  so withdrawn, an amount   of Rs.21,32,011/-  

was deposited by the delinquent in his own Saving Bank Account No.  

8861 in the same  bank.  It was alleged in the charge that the State  

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Minster  received  an  amount  of  Rs.12,00,000/-  on  different  dates;  

payment for petrol etc. to the tune of Rs.3,68,293/-  was also made  

by the delinquent  and the remaining  amount  was misappropriated.  

The second charge against the respondent No.1  was that being a  

senior   public  servant,  he  obtained   undue  advantage  and  by  

adopting criminal   means  and acting in contravention  of the duties  

of  the  Private  Secretary,  he  breached  the  Code  of  Conduct  

prescribed for  Private Secretaries in Para 266 of the Sachivalaya  

Niyam Sangrah, Uttar Pradesh  Shashan.

4. The  delinquent  denied  the  charges  and  put  forth   his  

version in his reply.   The Inquiry Officer  after recording the evidence,  

submitted  his  report  on  December  12,  2002.   The  Inquiry  Officer  

recorded a finding  that in his capacity as Private Secretary to the  

then  State  Minister,  the  delinquent   took  undue  advantage,  acted  

contrary to the  duties and responsibilities  of Private Secretary  and  

he  perpetrated fraud and deceit upon the State Minister for unlawful  

gains to himself.  The Inquiry Officer found that the delinquent had  

misappropriated  a  portion  of  the  amount  so  withdrawn  from  the  

Saving Bank account of the State Minister.   

5. A  copy  of  the  enquiry  report  was  furnished  to  the  

delinquent and after giving him a show cause notice, the Competent  

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Authority  passed an order  on November 24, 2003, dismissing the  

respondent No.1  from service.

6. The respondent No.1 challenged the order of  dismissal  

before the  High Court  of Judicature at Allahabad, Lucknow  Bench,  

Lucknow.

7. The Division Bench by its order dated May 23, 2008, set  

aside  the  order  of  dismissal   dated  November  24,  2003.   The  

impugned  order  passed  by  the   Division  Bench   depicts  that  it  

proceeded  to  consider  the  controversy  by  framing  two  questions  

namely; (one)  whether    in view  of  the evidence on record,  two  

charges  leveled  against   the  delinquent  stood  proved  and  (two)  

whether in view of the findings  recorded by the Inquiry Officer which  

have  been  accepted  by  the  Disciplinary  Authority/Appointing  

Authority,  any  punishment  could  have  been   awarded  to  the  

delinquent,  much  less  any  major  punishment  of  dismissal  from  

service.   The formulation of  first question and the discussion that  

has followed in the impugned judgment  suggests that  the Division  

Bench attempted to appreciate  the evidence which was produced  

before the Inquiry Officer.  This is how the High Court  proceeded to  

appreciate  the evidence:   

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“The  Minister   himself   admits  that  out  of  the  aforesaid  amount  Rs.37,00,304/- he had received Rs.12 lacs.    He did not  and could not give any proof or evidence to the contrary even the  enquiry  officer  did  not  accept  the  admission  of  the  Minister  for  establishing  that  he  had  received   Rs.12  lacs,  though  it  being  admitted to the Minister that he has received Rs.12 lacs.  The said  amount thus, could not have been said to be either embezzled or  misappropriated by the petitioner.”  

The Division Bench  went on to scan  the evidence produced before  

the Inquiry Officer   in the following manner:

“The  petitioner  has  though  given  an  explanation  for  the  aforesaid transactions, but even  without accepting that the Minister  has authorized  him orally to make the payment  from the account  and, even assuming that on the  denial of the Minister of such oral  instructions,  the petitioner could not have made the deposit in his  own account  and could  not  have  made the payment  in  cash to  petrol firms, but the fact remains that the said amount was actually  paid to the petrol  dealers and,  therefore,  it  cannot be a case of  embezzlement, so far the government money is concerned.

The minister himself admitted  and it is also proved from the  record that the signatures on the cheques were that of the Minister  and the money was withdrawn  from the bank on his  instructions  by the petitioner.  It is a different matter that the Minister qualified  his statement by saying that the signatures were obtained on the  blank  cheques  without  indicating  the  actual  amount  which  was  likely to be  withdrawn on the ground that the actual amount would  be confirmed from the register towards  the price of petrol and then  would be filled in, but the fact remains that the signatures on the  cheques  were  that  of   the  Minister,  which   signatures   he  put  knowing that  he was issuing the cheques for paying the price of  petrol.  It therefore, cannot be said that the petitioner had withdrawn  the  amount  by  obtaining  the  signatures  of  the  Minister  on  the  cheques fraudulently.”

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8.              In State of Orissa vs.  Muralidhar Jena,1  a Constitution  

Bench  of this Court  held :

“14. There are two other considerations to which reference must be  made. In its judgment the High Court has observed that the oral  evidence  admittedly  did  not  support  the  case  against  the  respondent.  The  use  of  the  word  “admittedly”,  in  our  opinion,  amounts somewhat to an over statement; and the discussion that  follows this over statement in the judgment indicates an attempt to  appreciate the evidence which it would ordinarily not be open to the  High Court to do in writ proceedings. The same comment falls to be  made in regard to the discussion in the judgment of the High Court  where  it  considered  the  question  about  the  interpretation  of  the  word “Chatrapur Saheb.” The High Court has observed that “in the  absence of a clear evidence on the point the inference drawn by  the Tribunal that Chatrapur Saheb meant the respondent would not  be justified”. This observation clearly indicates that the High Court  was  attempting  to  appreciate  evidence.  The  judgment  of  the  Tribunal shows that it considered several facts and circumstances  in  dealing  with  the  question  about  the  identity  of  the  individual  indicated by the expression “Chatrapur Saheb “. Whether or not the  evidence  on  which  the  Tribunal  relied  was  satisfactory  and  sufficient for justifying its conclusion would not fall to be considered  in a writ petition. That in effect is the approach initially adopted by  the High Court at the beginning of its judgment. However, in the  subsequent part of the judgment, the High Court appears to have  been persuaded to appreciate the evidence for itself, and that, in  our opinion, is not reasonable or legitimate.”

9. In the case of State of A.P. vs. Sree Rama Rao2 , a three  

Judge Bench of this Court  held:

“7. ……. The High Court is not constituted in a proceeding under Article  226  of  the  Constitution  a  court  of  appeal  over  the  decision  of  the  authorities holding a departmental enquiry against a public servant: it is  concerned  to  determine  whether  the  enquiry  is  held  by  an  authority  

1 AIR 1963 SC 404  2 AIR 1963 SC 1723

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competent in that behalf,  and according to the procedure prescribed in  that  behalf,  and  whether  the  rules  of  natural  justice  are  not  violated.  Where there is some evidence, which the authority entrusted with the duty  to  hold  the enquiry has accepted and which evidence may reasonably  support the conclusion that the delinquent officer is guilty of the charge, it  is not the function of the High Court in a petition for a writ under Article  226 to review the evidence and to arrive at an independent finding on the  evidence.  The  High  Court  may  undoubtedly  interfere  where  the  departmental authorities have held the proceedings against the delinquent  in a manner inconsistent with the rules of natural justice or in violation of  the statutory rules prescribing the mode of enquiry or where the authorities  have  disabled  themselves  from  reaching  a  fair  decision  by  some  considerations extraneous to the evidence and the merits of the case or  by allowing themselves to be influenced by irrelevant  considerations or  where  the  conclusion  on  the  very  face  of  it  is  so  wholly  arbitrary  and  capricious  that  no  reasonable  person  could  ever  have  arrived  at  that  conclusion, or on similar grounds. But the departmental authorities are, if  the enquiry is otherwise properly held, the sole judges of facts and if there  be  some  legal  evidence  on  which  their  findings  can  be  based,  the  adequacy  or  reliability  of  that  evidence  is  not  a  matter  which  can  be  permitted to be canvassed before the High Court in a proceeding for a writ  under Article 226 of the Constitution.”

10. The aforesaid  decisions were noticed by a  Constitution  

Bench  of  this  Court  in  the  case  of  State  of  Madras vs.  G.  

Sundatram3,  and it has  been  held that it is not open to the High  

Court  to  re-appreciate the evidence before the Tribunal and record  

the conclusion that the evidence does  not establish charges against  

the delinquent.   In the words  of the Constitution Bench:    

“9. It is therefore clear that the High Court was not competent to  consider the question whether the evidence before the Tribunal and  the  Government  was  insufficient  or  unreliable  to  establish  the  charge against the respondent. It could have considered only the  fact whether there was any evidence at all which, if believed by the  Tribunal,  would  establish  the  charge  against  the  respondent.  Adequacy of that evidence to sustain the charge is not a question  

3 AIR 1965 SC 1103

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before the High Court when exercising its jurisdiction under Article  226 of the Constitution. This view was reiterated in Union of India v.  H.C. Goel, AIR 1964 SC 364

10. It  is  therefore  clear  that  the  High  Court  was  in  error  in  reappreciating the evidence before the Tribunal and recording the  conclusion that that evidence did not establish the charges against  the respondent…………..”  

11.       The  scope  of   judicial  review   in  dealing  with  

departmental enquiries  came up for consideration before this Court  

in the case of State of Andhra Pradesh And Ors.  vs.  Chitra Ventaka  

Rao4  and this Court held:

“21. ……… The High Court is not a court of appeal under Article  226  over  the  decision  of  the  authorities  holding  a  departmental  enquiry  against  a  public  servant.  The  Court  is  concerned  to  determine whether the enquiry is held by an authority competent in  that  behalf  and  according  to  the  procedure  prescribed  in  that  behalf,  and whether the rules  of  natural  justice are not  violated.  Second,  where  there  is  some  evidence  which  the  authority  entrusted with the duty to hold the enquiry has accepted and which  evidence  may  reasonably  support  the  conclusion  that  the  delinquent officer is guilty of the charge, it is not the function of the  High Court to review the evidence and to arrive at an independent  finding on the evidence. The High Court may interfere where the  departmental  authorities  have  held  the  proceedings  against  the  delinquent in a manner inconsistent with the rules of natural justice  or in violation of the statutory rules prescribing the mode of enquiry  or where the authorities have disabled themselves from reaching a  fair  decision by some considerations extraneous to the evidence  and  the  merits  of  the  case  or  by  allowing  themselves  to  be  influenced by irrelevant considerations or where the conclusion on  the  very  face  of  it  is  so  wholly  arbitrary  and  capricious  that  no  reasonable person could ever have arrived at that conclusion. The  departmental  authorities  are,  if  the enquiry  is  otherwise properly  held, the sole judges of facts and if there is some legal evidence on  which their findings can be based, the adequacy or reliability of that  

4 (1975) 2 SCC 557

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evidence is not a matter which can be permitted to be canvassed  before the High Court in a proceeding for a writ under Article 226 22…………………………………………… 23. The jurisdiction to issue a writ of certiorari under Article 226 is a  supervisory jurisdiction. The Court exercises it not as an appellate  court. The findings of fact reached by an inferior court or tribunal as  a  result  of  the  appreciation  of  evidence  are  not  reopened  or  questioned in writ proceedings. An error of law which is apparent  on the face of the record can be corrected by a writ, but not an error  of fact, however grave it may appear to be. In regard to a finding of  fact recorded by a tribunal, a writ can be issued if it is shown that in  recording the said finding, the tribunal had erroneously refused to  admit  admissible  and  material  evidence,  or  had  erroneously  admitted inadmissible evidence which has influenced the impugned  finding.  Again  if  a  finding  of  fact  is  based on no evidence,  that  would be regarded as an error of law which can be corrected by a  writ of certiorari. A finding of fact recorded by the Tribunal cannot  be  challenged  on  the  ground  that  the  relevant  and  material  evidence adduced before the Tribunal is insufficient or inadequate  to sustain a finding. The adequacy or sufficiency of evidence led on  a point and the inference of fact to be drawn from the said finding  are  within  the  exclusive  jurisdiction  of  the  Tribunal.  See  Syed  Yakoob v. K.S. Radhakrishna,  AIR 1964 SC 477.  24.  The  High  Court  in  the  present  case  assessed  the  entire  evidence and came to its own conclusion. The High Court was not  justified to do so. Apart from the aspect that the High Court does  not correct a finding of fact on the ground that the evidence is not  sufficient or adequate, the evidence in the present case which was  considered by the Tribunal cannot be scanned by the High Court to  justify the conclusion that there is no evidence which would justify  the finding of  the Tribunal  that  the respondent  did not make the  journey.  The Tribunal  gave  reasons for  its  conclusions.  It  is  not  possible for the High Court to say that no reasonable person could  have arrived at  these conclusions.  The High Court  reviewed the  evidence, reassessed the evidence and then rejected the evidence  as no evidence. That is precisely what the High Court in exercising  jurisdiction to issue a writ of certiorari should not do.”

12. The legal position  is well settled  that the power of judicial  

review is not directed  against the decision but is  confined to the  

decision making process.   The Court does not  sit in judgment  on  

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merits  of  the  decision.   It   is  not  open  to  the  High  Court  to  re-

appreciate and  reappraise  the evidence  led before  the  Inquiry  

Officer  and examine  the findings recorded  by the Inquiry  Officer as  

a  court of appeal and reach its own conclusions.   In  the instant  

case, the High Court  fell into grave  error in scanning  the evidence  

as if  it was a court of appeal.  The approach of the High Court in  

consideration of  the matter  suffers  from manifest  error  and,  in our  

thoughtful consideration,  the matter requires fresh consideration by  

the High  Court  in accordance with law.  On this  short ground, we  

send the  matter back to the  High Court.

13. Resultantly,  the appeal  is allowed and the order dated  

May 23, 2008, passed by the High Court is set aside.   Writ  Petition  

is restored to the file of the High Court for fresh hearing  and disposal.  

Needless to say that the respective arguments  of the parties  are  

kept open to be agitated  before the  High Court  which obviously will  

be considered on their  own merit.   We request  the High Court  to  

dispose of  the    matter  as  expeditiously  as  may be possible  and  

preferably  within four months.  No order as to costs.

………………………..J

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(Tarun Chatterjee)

………………………..J (R.M. Lodha)  

New Delhi, August  17 , 2009

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