TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts of the case are that the petitioner was served with the charge-sheet for the charges mentioned hereinbelow :- " While working as Head Cashier (Offg) at our surana market, Pali Branch, you also performed the work in Agricultural Loan Section viz. processing of loan applications issuing of sanction letters and verification of spots. It is alleged that you have demanded and accepted on 10. 8. 1989 in the branch premises a sum of Rs. 1000/- as illegal gratification from Shri Pira Ram Choudhary, one of the borrower resident of village Guda Aindla (Pali) for delivery of sanction letter and facilitating disbursal of an agricultural loan to him alongwith his three brothers viz. Chamna, Pukha and Ghessa sons of Shri Rataji for fitting of pipeline amounting to Rs. 21,600/ -. " The enquiry was conducted by the Enquiry Officer and Enquiry Officer submitted enquiry report to the disciplinary authority, copy of which is placed on record alongwith forwarding letter dated 16/31st Dec. , 1992. Enquiry report starts from the page No. 37 of the paper book. The Enquiry Officer found the charge proved against the petitioner. The disciplinary authority, after giving opportunity to the petitioner to give his submissions against the enquiry report, concurred with the finding recorded by the Enquiry Officer and passed the order imposing penalty of discharge from the Bank's Service from the date of service of the order in terms of paragraph 19. 6 (e) of the Bipartite Settlement dated 19. 10. 1966. Copy of order of the disciplinary authority is dated 5. 08. 1993 (Annex. 5 ). The petitioner preferred an appeal against the above order of punishment dated 5. 08. 1993. The appeal of the petitioner was dismissed by the Appellate Authority, which was communicated to the petitioner. The order of rejection of the appeal is dated 17th Sept. , 1998, copy of which is placed on record with Annex. 13. The argument of learned counsel for the petitioner is that this is a case of no evidence for holding petitioner guilty of any of the charges. It is also submitted that, in fact, no finding has been recorded by the Enquiry Officer with respect to the charge of demand and acceptance of illegal gratification by the petitioner. Not only this but according to the learned counsel for the petitioner, the statements, which were considered and quoted in the enquiry report itself fully proved that the petitioner is not guilty. According to learned counsel for the petitioner, the witnesses produced by the department disclosed that there was no demand of illegal gratification by the petitioner, rather the petitioner himself effectively resisted the forcible offer of money given to him by the complainant Pira Ram and he even immediately made compliant to the Branch Manager that Pira Ram is forcing upon him rupees, upon which the Branch Manager of the Bank himself immediately came to the petitioner's place and shouted that take the money back, called the Chokidar and directed him to get Pira Ram out. This plea was not even proved and corroborated by the witnesses produced by the Bank itself, but the circumstances also proved that this was a case of concocted trap and not the case of demand and acceptance of illegal gratification by the petitioner. Learned counsel for the respondent vehemently submitted that the scope under Article 226 of the Constitution of India of interference by this court in the matter of domestic enquiry is absolutely limited and this court neither can reappreciate the evidence nor can substitute the conclusion of the court over the finding recorded in the domestic enquiry even if there is possibility of different view of this court. Learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court delivered in the case of Apparel Export Promotion Council vs. A. K. Chopra (1 ). The Hon'ble Apex Court held as under : " 17. The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is that 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 reappreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and Division Bench of the High Court, it appears, ignored the well settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision making process. Loard Haltom in Chief Constable of the North Wales Police vs. Evans (1982) 3 ALLER 141, observed : " The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court. " Learned counsel for the respondent further relied upon the judgment of this court delivered in the case of R. S. Tanwar vs. Marwar Gramin Bank, Head Office, Pali & Ors. (2), decided on 1st Sept. , 2000. In this judgment this court held that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry. It is relevant to mention here that here in this case also the petitioner was not even subjected to the criminal case as final report was given by even Police on the ground that no case is made out. This court in the judgment referred above dealtwith the scope of interference by the High Court in the matter of order passed in departmental enquiry and held that when the conclusion reached by the authority is based on evidence, the court or the tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. After considering the arguments of both the parties and after perusal of the entire record of the present writ petition and in light of the judgment relied upon by the learned counsel for the respondent it is clear that scope of this court to interfere in the matter of domestic enquiry is very limited. It will be relevant to consider the judgment, which are relied upon by the learned counsel for the respondent to find out what is the scope under Article 226 of the Constitution of India in the matter of domestic enquiry, when challenged. As quoted above, from the judgment of the Hon'ble Apex Court delivered in the case of Apparel Export Promotion Council's case (supra), the Hon'ble Apex Court while holding that scope is limited held that (i) the adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. (ii) the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising power of judicial review, (iii) the High Court cannot normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent. Therefore, the Hon'ble Apex Court observed that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision making process.
(3.) THEREFORE, in view of the above judgment of the Hon'ble Apex Court as well as the judgment of the Division Bench of this court delivered in the case of R. S. Tanwar's case (supra) relied upon by learned counsel for the respondent it is clear that despite holding the scope of interference by the court in the matter of departmental enquiry is limited still it has been very specifically held that these limitations applies only till then till the findings of fact are based on evidence and the proceedings have not been by adopting procedure, which cannot be faulted with illegalities and irregularities, which vitiates the process by which the decision was arrived at in the departmental proceeding. In my opinion, otherwise it will be recognizing of a right of the employer to remove the employee simply because employer has authority to remove the employee and the procedure provided and protection given by the rules will become nugatory. The delinquent person will have stigma and will be condemned without any evidence in support of charge, which is not permissible. Here is this case, the contention of petitioner is that, in this case, not only no evidence was recorded against the petitioner by the enquiry officer, but from the evidence considered and referred in the enquiry report itself sufficiently proves that, in fact, petitioner was wrongly fixed in this episode by levelling serious charge of demanding and accepting bribe. It is also submitted that even if the evidence, which were considered by the enquiry officer if read only then also it is proved that the petitioner himself successfully resisted the illegal act of the complainant, who wanted to drag the petitioner in concocted case. Looking to the charge, it is true that if the charge stands proved then no lenient view can be taken against the person, who is indulged in demanding and accepting illegal gratification and such person cannot claim even any leniency in the matter of award of punishment. The Enquiry Officer recorded finding after detail discussion of all the evidences produced by the department as well as the defence witnesses. The allegation against the delinquent officer was that he demanded and accepted on 10. 08. 1989 a sum of Rs. 1,000/- as illegal gratification from one Sh. Pira Ram Chaudhary for delivery of sanction letter and facilitating disbursement of agricultural loan of Rs. 21,600/ -. Learned counsel for the petitioner submitted that the complainant Pira Ram was not produced and examined in the departmental enquiry for which learned counsel for the respondent submitted that, in fact, subsequently the complainant Pira Ram was murdered, but both the counsel admitted that fact of murder of Pira Ram has not come on record, but the fact of death of Pira Ram is not in dispute. The witnesses, who were produced by the department are S/sh. K. R. Mehta (BW-1), Kushal Bhojwani (BW-2), M. S. Gaur (BW-3), L. V. Ojha (BW-4), Hanuman Singh (PW-5), J. N. Sharma (BW-6) and M. D. Gaur (BW-7), Sh. K. R. Mehta (BW-1) was the Manager of the Bank at the time of incident. Sh. Kushal Bhojwani (BW-2) was also Bank's employee, but he stated that he was on leave on the day of happening, i. e. , on 10. 08. 1989. Sh. M. S. Gaur (BW-3) was the Branch Manager of the Branch where the incident took place, but he was posted from March, 1985 to July, 1988 whereas the incident is of 10. 08. 1989. Sh. L. V. Ojha (BW-4) was working at the Branch since June, 1989 on the post of Accountant. Sh. Hanuman Singh (BW-5) was the LDC in the Commercial Tax Department. Pali and was not employee of the respondent-bank, but he was a person, who was witness in the trap party when the trap was conducted against the petitioner. Sh. J. N. Sharma (BW-6) was the Branch Manager from August, 1988 to June, 1990. Sh. M. D. Gaur (BW-7) was the Police Officer, who investigated the event of trapping of the petitioner in the capacity of Dy. SP. CBI, Jodhpur and witness Shridhar Joshi was Dy. SP ACD, Pali, who was the incharge of the trap party. ;