1. Leave granted
2. These two appeals are directed against one and the same judgment - One by the state and the other by the delinquent employee, which arises out of a disciplinary proceeding. A disciplinary proceeding was initiated by framing a set of charges against the delinquent who was a clerk in the police department. Several serious charges of forgery had been leveled against the delinquent employee and on an enquiry being conducted in accordance with the prescribed procedure the enquiry officer found him guilty of the charges leveled against him. On the basis of the findings of the enquiry, the disciplinary authority terminated the services of the delinquent employee. Against the said order of termination an appeal was carried to the inspector general of police who reaffirmed the order of the disciplinary authority and dismissed the appeal. On a writ petition being filed, the learned single judge allowed the writ petition essentially on the ground that the state government did not file any counter affidavit and also further came to the conclusion that the authority who passed the order of termination was not the appointing authority of the delinquent employee. On review application being filed and on perusal of the materials placed the said learned single judge came to hold that the authority who passed the order of termination was the competent authority, but did not interfere with the order of allowing the writ petition on the ground that the state not having filed any counter affidavit, would be bound by the earlier decision. The state assailed the order of the learned single judge by filing an appeal, which was heard, by a division bench of Gauhati High Court. The division bench considered the matter and did notice the fact that there was some oral evidence in the enquiry proceeding in support of the allegation of forgery. But notwithstanding the same, did not interfere with the findings and order of the learned single judge having taken a compassionate view to the effect that the delinquent employee did not work between the period of dismissal and reinstatement. The division bench, however, modulated the consequential benefits as ordered by the learned single judge and directed that the delinquent employee will be entitled to compensation and notional pay but it would not be entitled to pecuniary benefits out of the same. The division bench, further, held that the delinquent would be entitled for being considered for promotion on being reinstated pursuant to the order of the learned single judge. The state has come up in appeal against the direction to reinstate the delinquent employee and the delinquent employee has come up in appeal against the modulated judgment of the division bench denying the monetary benefits flowing from the order of the learned single judge.
3. Mr. A.K. Panda, the learned senior counsel appearing for the state contented that mere non-filing of counter affidavit in a certiorari proceeding, would not be enough for the High Court to interfere with the order of punishment which order and findings of the enquiring officer are based on materials. According to him, a bare perusal of the judgment of the learned single judge would indicate that the High Court has not exercised the supervisory power under Article 227, instead has exercised an appellate power by trying to re-appreciate the materials based on which the enquiring officer recorded the finding of guilty, which was ultimately accepted by the disciplinary authority. The learned counsel appearing for the respondent vehemently contended that the state not having been diligent in refuting the assertions made in the writ petition, High Court was not justified in interfering with the order of termination and that order having been upheld by the division bench of the High Court, the same cannot be interfered by this Court in exercise of the power under Article 136 of the Constitution.
4. Having heard the learned counsel for the parties and on examining the order of the disciplinary authority which was based upon the findings arrived at by the enquiring officer and on scrutiny of the judgment of the learned single judge we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the finding of guilt arrived at by the disciplinary authority. On the basis of the findings arrived at by the enquiring officer the division bench of the High Court has itself in its order stated that there were ample evidence in support of the conclusion and if the finding is supported by oral evidence the same need not and should not have been interfered with on the ground that the extent has not been examined. So far as the question whether order of termination was passed by the appointing authority or not, the learned single judge himself has reviewed his decision and held that the superintendent of police was the appointing authority and as such was entitled to take the final decision in the disciplinary proceeding. In the aforesaid premise, we set aside the impugned judgment of the division bench and single judge of the High Court of Gauhati and hold that the writ petition would stand dismissed. The appeal of the state is allowed and that of the respondent stands dismissed.