JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioner has challenged the order of his dismissal from service dated 20.9.2000 as passed by the respondent No. 2, (Annexure-9 to the writ petition) and the order of Appellate Authority/ respondent No. 1, dated 5.1.2001 (Annexure-11 to the writ petition) by which petitioner's appeal was dismissed and the penalty of dismissal from service was confirmed.
2. Sri Manish Goel, learned Counsel in support of the writ petition and Sri V.K.S. Chaudhary, learned Senior Advocate assisted by Sri C.S. Singh, learned Advocate in opposition thereof have been heard. Parties Counsel have advanced their arguments at quite length and they have taken the Court about the demerit/merit in the enquiry proceedings and thereafter the scope of enquiry by this Court under Article 226 of the Constitution of India to interfere in the enquiry proceedings and the result based thereupon. In view of the aforesaid this Court is to consider and decide that whether on the fact of the present case interference in the enquiry proceedings and the punishment so awarded is to be made or not.
3. For the disposal of the writ petition the facts in brief, as stated in the writ petition, will be useful to be summarised.
4. Petitioner was appointed as Driver on 15.12.1978 and was posted at Narora Atomic Power Station, Narora, Bulandshahr and since then he had been working there continuously. He was promoted as Driver Grade II (A Class III post) in the year 1997. On the charge of misconduct which related to the assault by the petitioner on Sri Thawait, on 11th December, 1998 a memorandum was issued to the petitioner on 16th March, 1999 by the Chief Administrative Officer/ Disciplinary Authority (Annexure 3 to the writ petition). On 5.6.1999 Sri T.R. Balasubramanium, Manger (P&IR) was appointed as Enquiry Officer. Petitioner was given copy of the Enquiry Officer's report dated 15.12.1999 along with cover letter dated 10.1.2000, upon which petitioner submitted his reply on 1.2.2000. Thereafter a show cause notice dated 9.3.2000 was given to the petitioner in which it was stated that Disciplinary Authority has proposed penalty of dismissal from service and thus petitioner was given an opportunity to make representation against the said proposed penalty. Petitioner again submitted his reply on 25.3.2000. It is thereafter order of dismissal dated 20.9.2000 (Annexure -9 to the writ petition) came to be passed, upon which petitioner filed statutory appeal on 28.9.2000 which came to be dismissed by order dated 5.1.2000 (Annexure-11 to the writ petition and thus both the orders, referred above, are under challenge in this petition.
5. Learned Counsel for the petitioner raised various aspects which can be arranged in sequence. It has been first submitted that there is absolutely no independent material to sustain charges. There is nothing on the record to establish misconduct by the petitioner except statement of complainant which on account of annoyance of the complainant is not to be accepted. Submission is that mere suspicion cannot take place of the proof unless there is conclusive evidence available to establish commission of alleged misconduct. It is submitted that in a disciplinary action against an employee the standard of proof i.e. preponderance of probabilities will be different if the extreme punishment of dismissal is to be awarded and in such cases higher degree of proof is required as the career and the source of livelihood of the employee is at stake which has civil consequence. It is submitted that Enquiry Officer adopted different standard in re-evaluating evidence adduced before him. Strict and technical yardstick was adopted while appreciating evidence given on behalf of the petitioner but at the same time said standard was not adopted while appreciating evidence adduced by the management. It is submitted that the Enquiry Officer in a biased manner disbelieved independent witnesses of the petitioner by pointing out hyper technical contradictions which too is not borne out from the record. It is submitted that on the relevant date and time of the incident petitioner was posted at the sub-station which was clear from the record produced before the Enquiry Officer (Log-sheet and other documentary evidence). His presence at the sub-station was duly confirmed by the independent witnesses produced by him. It is further submitted that in fact charge-sheet given to the petitioner has also been proved to be vague as neither time was specified nor manner of assault was specified. In support of the submission about standard of proof which is required in such cases (which in the present case is lacking) entitling this Court to examine the fact which will be within the power of the judicial review of this Court, reliance has been placed on the case laws reported in-
1. 1984(2) LLJ 203, P.B. Rocho v. Union of India and Ors.
2. AIR 1964 SC 364, Union of India v. H.C. God.
3. AIR 1983 SC 454, Bhagat Ram v. State of Himachal Pradesh and Ors.
4. AIR 1972 SC 2535, State of Assam v. Mohan Chandra Kalita and Anr.
5. AIR 1976 SC 373, L.D. Jai Shinghani v. Narayan Das Punjabi.
6. 1956(3) All. E.R. 742, Bhandari v. Advocates Committee.
7. 1956(3) All. E.R. 970, Hornal v. Neuberger Products Ltd.
8. 2002(1) E.S.C. 499, R.K. Kapoor v. Zonal Manager (North), Food Corporation of India and Anr.
9. 2003 (3) AWC 2453, Babu Lal Dubey v. Regional Manager, UP.S.R.T.C, Alld. andanother.
10. 2001(1) SCC 182, Kumaun Mandal Vikas Ltd. v. Girja Shanker Pant and Ors.
Other References :
1. 63-C American Jurisprudence 2d, Para 466.
2. Halsbury's Laws of England, 4th Edition, Vol. 17, Para 19.
3. Halsbury's Laws of India, Vol. 15, paras 145.023.
4. Administrative Law by Wade & Foreyth, 8th Edition, page 297.
6. In support of the submission that if the charge-sheet is vague then enquiry proceeding will be vitiated, reliance has been placed on the case laws reported in-
1. 1963(1) LLJ 475, J.K. Cotton Spinning & Weaving Mills v. Jagannath and Ors.
2. AIR 1961 Calcutta 40, Amulya Ratan Mukherjee v. Deputy Chief Mechanical Engineer.
7. In supper of the submission that suspicion cannot take place of the proof, reliance has been placed on the case laws reported in-
1. AIR 1976 SC 1277, Nand Kishore Prasad v. The State of Bihar and Ors.
2. AIR 1964 SC 364, Union of India v. H.C. Goel.
8. It was then submitted that in view of the allegation against the petitioner the misconduct can be said to have been committed outside work place and therefore, it is not punishable. In this respect, it is pointed out that there exists no standing order which can be made applicable for maintaining the order of punishment. It is submitted that from the supplementary counter affidavit filed by the respondents it is clear that process of certification was adopted in which 25.6.2001 was the date fixed by the certifying officer. However, the date on which the Act became applicable to the organization has not been mentioned and therefore, on the date of passing of the order of punishment model standing order cannot be said to be applicable. It has been further submitted that the proceedings for certification has also been stayed by the Madras High Court and therefore, in this situation the misconduct being unconnected with the employment not been committed during the working hours and within work place can not result in extreme penalty of dismissal from service. In support of the aforesaid, reliance has been placed on the case laws reported in-
1. AIR 1999 SC 1416, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr.
2. 1994 (68) FLR 291, Gopal Das Rawat v. The U.P.S.R.T.C. and Ors.
3. 20.01 (3) ESC 1245, Shiv Prakash Rai v. State of UP. and Ors.
4. 2002 (2) ESC 389, Virendra Sharma v. State of UP. and Ors.
9. Lastly, it has been submitted that extreme punishment of dismissal from service given by Disciplinary Authority on the facts is shockingly disproportionate which has been confirmed by the Appellate Authority without assigning any reason. It is submitted that some past misconduct of the petitioner was taken into account for which he was already punished and therefore, on the facts, the extreme punishment of dismissal being highly disproportionate is liable to be interfered. In support of the aforesaid submission, reliance has been placed on the case laws reported in-
1. 1983 (47) FLR 508, M/s. Glaxo Laboratories (I) Ltd. v. The P.O.L.C, Meerut and Ors..
10. On the aforesaid premises submission is that on examination of the facts and totality of the circumstances, petitioner is entitled to get relief from this Court in equity jurisdiction.
11. In response to the aforesaid Sri Chaudhary learned Senior Advocate appearing for respondents vehemently submits that this Court sitting in the writ jurisdiction is not to go into the question of fact and about correctness in the findings so recorded, by the Enquiry Officer. It is submitted that going into merits of proceedings and assessing the evidence and appreciation of the findings so recorded by the Enquiry Officer will be beyond the scope of enquiry by this Court. In support of the submission that it is not a case of judicial review by this Court, reliance has been placed on the case law reported in 1975 (2) SCC 557, State of Andhra Pradesh and Ors. v. Chitra Venkata Rao.
12. It is then submitted that the charge-sheet given to the petitioner on its examination cannot be said to be vague in any manner as specific details in every respect have been given and neither there is any question of bias nor suspicion rather on competition of the enquiry in the light of the evidence so placed before the Enquiry Officer on a proper appreciation/assessment findings have been recorded and therefore, neither the enquiry proceedings nor its conclusion can be said to be vitiated in any manner calling for interference by this Court. It was then submitted that in view of Section 12A of the Industrial Employment (Standing) Orders Act, 1946 (As amended by Amendment Act No. 39 of 1963), submission of the learned Counsel for the petitioner that there was no certified Standing Orders has no legs to stand. Learned Counsel has placed before this Court Section 12A of Industrial Employment (Standing) Orders Act, 1946 which contains a provision that pending certification of the Standing Order 'Model Standing Order' shall apply to the establishment. It is submitted that in view of the aforesaid, proceedings were correctly taken under Model Standing Orders. It has been further submitted that the submission of the learned Counsel for the petitioner that misconduct must have been committed at the work place and as it is not so it cannot be said to be misconduct, is totally misconceived and is negatived from the provisions as contained in Industrial Employment (Standing Orders) Central Rules, 1946. It is submitted that schedule gives Model Standing Orders which are applicable to the present case. Rule 14 (Disciplinary Action for misconduct) and clause (h) reads like this-
"Rule 14. (1) A workmen may be fined up to two per cent of his wages in the month for the following acts and omissions, namely (2) A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct.
(3) The following acts and omissions shall be treated as misconduct.
(h) riotous or disorderly behaviours during working hours at the establishment, or any act subversive of discipline."
13. Submission is that beating of Boss by the driver of the establishment is a serious indiscipline and therefore, this is a misconduct. Otherwise also incident in the present case took place well within the premises of Thermal Power Corporation. It is submitted that there was bleeding from the nose and cut on the lips and the face was. swollen on account of severe beating by fits and kicks and therefore, beating of the Boss by an employee in itself being serious crime the extreme punishment so awarded cannot be said to be disproportionate in any manner. In fact the past misconduct of the petitioner also clearly indicates that there was no chance of any improvement and therefore, on the fact of the present case the punishment imposed by the Disciplinary Authority is not subject to any judicial review and it cannot be said to be shocking. In support of the aforesaid submission reliance has been placed on the case law reported in (2003) 4 SCC 364, Chairman, UCO Bank v. PC. Kakkar and (2003) 3 SCC 583, Lalit Popli v. Canara Bank.
14. Lastly, it has been submitted that that so far the submission about giving the reason by the Disciplinary Authority and Appellant Authority is concerned the Apex Court has ruled that when Disciplinary Authority or the Appellate Authority agrees with the findings of the Enquiry' Officer who has given detail reasons in his report then no further detail reasons are required to be given. Thus non-assigning of the reason while rejecting petitioner representation cannot be fatal to the decision so finally taken in respect to the petitioner's misconduct. It is submitted that entire effort of the petitioner appears to get revaluation of the entire evidence available, and to record different findings against the findings so recorded by the authorities below, which being not permissible before the Court, writ petition deserves dismissal.
15. It is in the foresaid background and in the light of the argument as has come from both sides the Court has examined the matter. Pleadings and the materials as is before this Court has been thoroughly examined.
16. Before examination of the rival claim on the merits, on the question of scope of judicial review it is to be observed that there is no quarrel on the principle and the guidelines so spelled by the Apex Court as the decision relied upon from both side speaks out the same thing. It is only the question of application of the settled proposition on the facts and circumstances of each case. In respect to the scope of judicial review and whether this Court can interfere or not in such matters, observation has been made from time to time by the Apex Court and by this Court which will be useful to be referred here.
17. In case of P.B. Rocho, reported in 1984 (2) LLJ 203, the observation as has been made in Paras 10, 12 and 13 will be useful to be quoted there-
"10. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A Civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a Cirminal Court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.
The distinction between the standard of proof in criminal and civil proceedings is more a matter of words and 'not one of any great moment : Lord Scarman, ibid. It can indeed become too nice to be discernible, dependent upon what is at stake. This principle holds good with equal force in disciplinary proceedings before departments authorities where although the rules of evidence and procedure of a Civil Court are not strictly applicable, in cases involving serious charges with consequences as grave as dismissal, the standard of fairness and reasonableness as interpreted and adopted by the Civil Court will apply to meet the ends of justice. Applying that standard, will a fair and reasonable Disciplinary Authority accept and evidence on record as a rational foundation for the finding and the consequences flowing from it: that is the question.
12. In these grave cases of exceptional importance to a citizen, it is the constitutional responsibility and power of the Court to carefully examine the quality of the evidence relied on by the authority to determine for itself whether the requisite standard of proof has been satisfied and where the truth lies. Where the exercise of an executive power depends on the 'precedent establishment of an objective fact', it is the power and duty of the Court in proceedings by way of judicial review to decide whether the 'precedent requirement' has been satisfied. The degree of proof in all these cases is as high as the subject matter is grave.
13. The required standard in such cases of exceptional significance approximates to the rule of 'substantial evidence' as adopted in American jurisprudence. As stated in the report of the (U.S.) Attorney General's Committee on Administrative Procedure, "the question whether the administrative finding of the fact rests on substantial evidence......is really a question of law, for a finding not so supported is arbitrary, capricious, and obviously unauthorised."
18. In another decision given in case of Union of India v. H.C. Goel, reported in AIR 1964 SC 864, observation as made in Paras 20, 22 and 27 will be useful to be quoted here-
"20......the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings help against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney General, we ought to add that he did not seriously dispute this position in law.
22. But we are not prepared to hold that if mala fides are not alleged and bona fides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it.
27. It may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that is punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."
19. In the proceeding to remove a public officer the proof of evidence which is required as mentioned in 63-C American Jurisprudence, II Edition (Para 466) can also be taken note of-
"Proof; evidence.-In proceedings to remove a public officer, the proof of the offence charged generally need not meet the standard of proof beyond a reasonable doubt, it may be required that the charges be supported by evidence that is clear, convincing, and satisfactory. Where a statute places the burden on the petitioner in a removal action to sustain allegations of a petition by evidence that is clear, satisfactory, and convincing, such standard of proof is defined as the establishment of facts by more than a preponderance of the evidence, but something less than establishing a factual situation beyond a reasonable doubt."
20. Similarly, a note can be taken about standard of proof as mentioned in Halsbury's Law of England, 4th Edition, Vol. 17. Similarly in Volume 15 of Halsbury's Law of India in paragraph 145.023 standard of proof has been mentioned as below-
"Standard of proof.-To succeed on any issue, the party bearing the legal burden of proof must (1) satisfy the Court of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent; and (2) adduce evidence sufficient to satisfy the Court to the required standard of degree of proof. There is no difference between the general rules of evidence in civil and criminal cases, and the statutory definition of proof does not draw a distinction between civil and criminal cases. There is, however, a difference in the standard of proof required in civil and in criminal cases."
21. Recently the Apex Court in case of Kumaun Mandal Vikas Nigam (supra) in Paras 2, 19 and 22 held as below :
"2. The totality of the situation ought to be taken note of and if on examination of such totality, it cames to light that the executive action suffers from the vice of non-compliance with the doctrine, the Law Court in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power.
19. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise is not permitted but in the event of these being a finding which otherwise shocks and judicial conscience of the Court, it is a well nigh impossibility to decry availability of judicial review at the instance of an affected person.
22. "Discretion" means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion : Rooke case; according to law, and not humour. It is to be, not arbitrary vague, and fanciful, but legal and regular. And is must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself."
22. In another recent decision referred by Sri Chaudhary, learned Senior Advocate who appears for the respondents as given by the Apex Court in case of Lalit Popli v. Canara Bank and Ors., reported in (2003) 3 SCC 583, it has been observed in Para 16 as under-
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and it established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. [See. State of Rajasthan v. B.K. Meena, (1976) 6 SCC 417], In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of 'proof beyond doubt' has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct."
23. In another decision refereed by Sri Chaudhary as given in case of State of Andhra Pradesh v. S. Sree Rama Rao, AIR 1963 SC 1723, the Apex Court in Para 21 observed as below;-
"First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic Tribunal the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry valid......"
"Second, where there is some evidence which the authority entrusted with the duty t6 hold the inquiry 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 rule of natural justice or in violation of the statutory rules proscribing the mode of inquiry 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 vary face of it so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the inquiry 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 of 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."
24. In another decision given by the Apex Court in case of Railway Board v. Niranjan Singh, (1969) 1 SCC 502, the following observation has been made-
"The High Court does not interfere with the conclusion of the Disciplinary Authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding."
(Para 23) The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not 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...
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 of 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 Yaloob v. K.S. Radhakrishnan, AIR 1964 SC 477]."
25. In another decision given by the Apex Court in case of Bank of India v. Degala Suryanarayana,(1999) V SCC 762 in Paras 11 and 15 the following observation has been made-
"(Para 11) Strict rules of evidence arc not applicable to departmental inquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer.....The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental inquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like an Appellate Authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
26. In view of the aforesaid, it is clear that the Apex Court has throughout ruled that in the grave cases of exceptional importance to a citizen and in the cases where livelihood of a family is to be taken away the Court is to carefully examine the quality of evidence relied on by the authority to determine for itself that whether requisite standard of proof has been satisfied and where truth lies. The required standard in such cases can be equated with the substantial evidence. The question whether administrative finding of fact rests on substantial evidence is really a question of law and it is to be seen that the finding is whether arbitrary, capricious and unauthorised
27. Now the Court is to examine the facts of the present case. The incident is said to have taken place on 11.12.1998. On 10.3.1999 a memorandum was issued to the petitioner by the Chief Administrative Office/Disciplinary Authority by which enquiry against the petitioner was proposed. Along with the aforesaid memorandum vide Armexure-1 the article of charges were indicated and vide Annexure 2 to 4 details of the previous misconduct, name of the witnesses and the documents were given. The article of charges against the petitioner as mentioned in Annexure-1 to the memorandum are as below-
"Article-I.-Shri Sarvesh Kumar Sharma while functioning as Driver Grade-II at NAPS on 11.12.98 evening hours made an attempt to assault. Sri R.K. Thawait, Asstt. Manger (Rectt.) in the NAPS Community Centre, thereby committed misconduct under the Model Standing Orders.
Article-II.-Shri Sharvesh Kumar Sharma while functioning as Driver Grade-II at NAPS on 11.12.98 evening hours beat Shri R.K. Thawait, Asstt. Manager (Rectt.) at a lonely place and inflicted him minor injury, thereby committed a misconduct under the Model Standing Orders."
28. The aforesaid charges are to the effect that on 11.12,1998 in the evening hours petitioner made an attempt to assault on Sri R. K. Thawait, Assistant Manager in the NAPS Community Centre and then again petitioner on 11.12.1998 itself in the evening hours has beaten Sri Thawait at a lonely place and inflicted minor injury. Article of charges do not mention any time of either of the incident and it is just mentioned as evening hours. In the first incident petitioner is said to have made an attempt to assault at community center and in the second incident petitioner is said to have beaten Sri Thawait at a lonely place. Petitioner examined Laxman Singh who was JRA-II Administration in NAPS and Laik Singh H/C Industrial Relation Community Center Township. The first witness of the petitioned viz. Laxman Singh confirmed presence of the petitioner at sub-station at about 7.20 p.m. The witness Laik Singh who was on duty on the date of incident stated that he has not seen any incident in the community center between the petitioner and Sri Thawait. So far the incident in question is concerned there appears to be a solitary statement of Sri Thawait. The first incident is said to have taken place in the community center where on own admission of Sri Thawait large number of persons were there but nobody was named as witness and even he could not tell name of anybody present at that time. In the cross-examination Sri Thawait stated "there were so may persons but I do not recall who were there". The first incident is attempt to assault by the petitioner and in the second incident assault is said to have taken place. Dr. Sunil Chaudhary who has conducted medical examination, on being questioned about the cause of injury stated "it is difficult to tell". It is in the light of the aforesaid evidence Enquiry Officer proceeded to assess the evidence. In respect to the motive part stand of petitioner is that as the-appointment of the petitioner's son was cancelled by Sri Thawait upon which son of the petitioner filed writ petition which was allowed and special appeal filed by the corporation was also dismissed Sri Thawait bore enmity. During course of the argument before this Court there appears to be no dispute about the factum of cancellation if appointment of son of petitioner and success in writ petition and special appeal before this Court. The Enquiry Officer has discarded the aforesaid aspect on the ground that charged office has not submitted any proof in support of his contention. In respect to the factum of incidence having taken place at the community center in the evening hour of 11.12.1998 which was subsequently fixed as 7.30 p.m. petitioner's witness Laxman Singh clearly stated that he found the petitioner in front/near sub-station. It is only for the alleged discrepancy in the statement/cross-examination about the place i.e. front/near substation that statement has been discarded by the Enquiry Officer. So far statement of Laik Singh H.C. who was on duty on the relevant date and time who has clearly deposed that no incident took place at community center and he never saw the charged officer in or near community center, the reason has been given by the enquiry authority that as only one of the two watchman has been examined and therefore, this statement do not help petitioner. It is thus clear that inspite of the admitted fact that large number of persons were present at the community center neither anybody was examined from the side of Sri Thawait nor anybody was even named as witness and at the same time witness (watchman) who was examined from the side of the petitioner has been discarded on the ground that other watchman has not been examined. This appear to be putting wrong burden on the petitioner as it was for the complainant to have examined other watchman to prove the presence of the petitioner and happening of incident on the date and place in question. So far past misconducts of the petitioner are concerned it related to the years 1982, 1985 and 1988. The enquiring authority has rightly held them to be inadmissible as that is no evidence to prove involvement of the petitioner in the present incident. It is in the background of the aforesaid, enquiring authority concluded that both articles of charges specified against the petitioner are proved. It is on the basis of the aforesaid report of the Enquiry Officer, the Disciplinary Authority proposed the punishment of dismissal form service. Petitioner made a representation against the proposed punishment on 25.3.2000 (Annexure 8 to the writ petition) but"the Disciplinary Authority on the premises that by 27th March, 2000 petitioner has not responded, confirmed the punishment of dismissal from service by order dated 20.9.2000. Against the order of the Disciplinary Authority petitioner preferred appeal which was also dismissed by Appellate Authority on 5.1.2001 by saying that he agrees with the decision taken by the Disciplinary Authority and he is of the opinion that S. K. Sharma is not fit person to be retained in service. Thus here is the case where this Court is not to consider and assess the worth of the evidence which is on record on the basis of which penalty of dismissal has been inflicted against the petitioner. It is the case where in respect to incident inspite of large number of persons being present at the community center neither a single person was named to have witnessed the incident nor any person has been examined in support of the incident from the side of the complainant. So far petitioner is concerned he had examined watchman who was on duty at the relevant time to State that he never said a even heard about any incident to have taken place at the community center. Other witnesses as examined by the petitioner stated that he met the petitioner at the time of alleged incident in front/near the sub-station where the petitioner was on duty. So far the second incident of that every date is concerned admittedly it is said to have taken place at a lonely place and the minor injuries which are said to have been received by the complaint, the cause of which could not be cleared by the doctor who was examined to prove the injury. Petitioner has submitted that selection of the petitioner's son was cancelled by Sri Thawait/complainant but on filing writ petition that was set aside and ultimately petitioner's son came in job upon which Sri Thawait cautioned the petitioner to teach lesson to him. This was discarded by the enquiring authority on the ground that no proof was filed by the petitioner. In fact there appears to be no dispute about the aforesaid factual aspect. This Court in its limited power is not to reassess the evidence but certainly on a casual reading of the assessment as made by the enquiring authority the Court should be satisfied that the conclusion arrived at can be said to be bona fide. The statement of the watchman who was on duty at the relevant time has not been discarded by the enquiring authority on any contradiction in his statement but that has been disbelieved solely on the ground that other watchman was not examined. The statement of other witness has been discarded only on the ground that there is discrepancy in the statement as he stated that he saw the petitioner in front/near the sub-station. These are only two grounds to discard the witnesses of the petitioner. At the same time solitary statement of the complainant has been believed to sustain both the charges although in respect to the first incident at the place of incident large number of persons being present nobody was even named what to say to produce any of them as a witness and in respect to the second charge of incident at a lonely place, of course, the minor injuries which can be said to be a corroborating evidence but the doctor has opined that the cause cannot be ascertained. It is not a case where on consideration of even past misconduct in the light of the evidence as has been noticed a minor penalty has been inflicted on the petitioner. It is the case where the extreme penalty of dismissal from service has been imposed. There cannot be any manner of doubt that on the charge of assault by an employee with his senior, if is proved this kind of penalty can be and should be imposed to maintain discipline in any institution but at the same time for awarding this drastic punishment evidence should be of conclusive nature being supported with independent evidence and circumstances. No mathematical formula in the shape of any fixed criteria can be provided for judging the situation but at the same time as has been noticed in various decisions given by the Apex Court and about of standard of proof as has been guided in various text books, the Court is to just apply its mind that whether for sustaining the extreme penalty of dismissal from service the required standard of proof on a consideration of preponderance of probabilities can be equated with the substantial evidence to sustain the conclusion. The Court is to satisfy that there was substantial evidence to sustain findings. So far sufficiency of evidence and the merits in the evidence this Court may not go into and interfere in the findings so recorded by the enquiring authority as approved by the Disciplinary and Appellate Authority but at the same time if the evidence is weak and is not substantiated by any evidence of independent witnesses who were present there for which even no explanation is there, whether taking of a view that the findings recorded by the Enquiry Officer as has been approved by the Disciplinary Authority are finding of fact and therefore, no interference is required will be justified.
29. At the cost of repetition at this stage the observation of the Apex Court in case of Kumaon Mandal Vikas Ltd. (supra) as made in Paras 2, 19, 22, 29 and 35 will be useful to be referred here-
"2. The totality if the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the Law Court in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power.
19. Judicial review of administrative action is feasible and the same has its, application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise is not permitted but in the event of these being a finding which otherwise shocks and judicial conscience of the Court, it is a well nigh impossibility to decry availability of judicial review at the instance of an affected person.
22. "Discretion" means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion : Rooke case; according to law, and not humour. It is to be, not arbitrary vague, and fanciful, but legal and regular. And is must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.
29. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute.
35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained.
........The requirement is availability of positive and cogent evidence and it is in this contest that we do record our concurrence with the view expressed by the Court of Appeal in Lacabail case."
30. Thus the facts of the case in hand having been tested in the light of the aforesaid observation of the Apex Court, this Court is convinced that the findings so recorded by Enquiry Officer as approved the Disciplinary and Appellate Authority can not be said to be based on substantial evidence to sustain the extreme penalty of dismissal from service. Accordingly, the impugned orders of the Disciplinary Authority and that of the Appellate Authority dated 20.9.2000 (Annexure-IX) and dated 5.1.2001 (Annexure-11) deserves to be quashed.
31. Now the question arises that what is to be next? In the similar situation in the case of Babu Lal Dubey v. Regional Manager, U.P.S.R.T.C., and Ors., reported in (2003)3 AWC, 2453, this Court on the same ground that there was no substantial evidence to sustain the charges quashed the order of removal from service and directed the petitioner to be reinstated in service with all consequential benefits. But on filing appeal before the Apex Court i.e. Civil Appeal No. 2662/2004, Special Leave Petition (Civil) No. 1765/2003 the Apex Court after quashing the order of punishing authority relegated the matter to the competent authority to consider the matter afresh being un-influenced by the earlier decision taken. The observation/decision of the Apex Court as has been given in the appeal as referred above in case of U.P.S.R.T.C. and Anr. v. Babu Lal Debey, is hereby quoted here-
"ORDER Leave granted.
Heard learned Counsel appearing on either side.
Even while issuing notice in the special leave petition on 12.9.2003, it has been specifically indicated to show cause as to why after quashing of the order of the punishing authority, the matter should not be relegates to the competent authority to consider the matter afresh uninfluenced by the subsequent materials which has been earlier taken note of.
The respondent has entered appearance and has filed a counter affidavit also.
In the light of the materials on record, we find that the proposed method of disposal already indicated even in the show cause notice would be the most proper, appropriate and effective manner of disposal of this appeal to ensure proper justice being done to both parties. Consequently, we set aside the order of the punishing authority and remit the matter to the competent authority to consider the matter afresh uninfluenced by the earlier decision taken as well as the subsequent materials gathered."
32. Accordingly it will be safe to refer the matter to the punishing authority to look into the matter in the light of the evidence as exist on record and taking into account the observation as has been made in this judgment. Needless to say that decision as has been cited in respect to the argument that punishment should not be shockingly disproportionate will also be taken note of. Thus the punishing authority is to take into account the totality of circumstances, existence of substantial evidence to sustain the charges and then to form opinion about prove of charges and quantum of punishment if any is to be given. The authority is not to be influenced by the earlier decision taken against the petitioner and fresh consideration is to be made strictly in accordance with the consideration and observation as has been made in this judgment. As the matter has already prolonged it is to be observed that the fresh decision is to be taken by the Disciplinary Authority within a period of three months from the date of receipt of certified copy of this order.
33. For the reasons recorded above this petition succeeds and is allowed. The impugned order of the Disciplinary Authority and that of the Appellate Authority dated 20.9.2000 (Annexure-IX) and dated 5.1.2001 (Annexure-XI) are hereby quashed. The matter is relegated to the Disciplinary Authority for fresh consideration as observed above.