JUDGMENT 1. - In this writ petition the petitioner has challenged the order of punishment dated. 1.10.81 (Annex 4,) the order of the appellate dated 16.11.81 (Annex. 5), Circular dated 28.5.81 (Annex.8) and remarks mad in the seniority list (Annex.9). He has prayed that the enquiry proceedings held against him, the impugned orders the Circular and the remarks made in the seniority list be quashed and the respondent Bank be directed not to prevent him from appearing in the test and the interview for promotion to officer' cadre. 2. Petitioner joined service of the Union Bank of India (for short 'respondent Bank') on 17.12.74 as a Clerk. In the year 1980 the petitioner was working at Bharatpur Branch of the respondent Bank and there he was staff representative. A Memorandum dated, 16.10.80 was served on the petitioner by the Superintendent of the Department of Personnel of the respondent Bank for a departmental enquiry. Four charges of gross mis-conduct and another two of minor misconduct were leveled against the petitioner. It was also ordered that Shri L.C. Sharma, Personnel Officer, Zonal Office, Ahmedabad will hold an enquiry. Another Memoramdum dated, 8.12.80 was also served on the petitioner in which two charges of gross misconduct and two charge of minor misconduct were leveled against him. shri L.C. Sharma who was appointed as Enquiry Officer, conducted enquiry in respect of all the charges. Four witnesses were examined on behalf of the Bank and the petitioner mad his own statement. The petitioner filed his written brief at the end of the inquiry. Thereafter, the Enquiry Officer recorded his findings on various charges and proposed penalty of stoppage of four grade increments with cumulative effect as also punishment of warning. Petitioner made his submissions against the proposed punishment and the Enquiry Officer passed order dated 1.10.91 imposing a penalty of stoppage of two grade increments with cumulative effect and Waring, petitioner filed an appeal dated 16.11.81 against the order of punishment. appellate Authority dismissed the appeal of the petitioner and its decision was communicated to the petitioner by the Superintendent, Department of Personnel vide his letter dated 25.3.82. 3. A test for promotion of the Officer's cadre from amongst the members of the Clerical cadre was proposed to be held in the month of February, 1982. the petitioner submitted his application for being considered from promotion. 3. A test for promotion of the Officer's cadre from amongst the members of the Clerical cadre was proposed to be held in the month of February, 1982. the petitioner submitted his application for being considered from promotion. Respondent Bank rejected his candidature vide letter dated, 2.1.82 on the ground that in view of the punishment imposed on him vide order dated 1.10.81 he is not eligible for appearing in the test and interview as per Clause 2.1 (c) of promotion agreement, Prior to this, Bank and issued a seniority list (Annex. 9). Therein. the petitioner's name came to he shown at serial No. 39 and against his name following remark had been entered 'bar for two years w.e.f. 1.10.81'. 4. Petitioner has challenged the enquiry proceedings, order of punishment and the appellate order as also the remark made in the seniority and denial of consideration for promotion on various grounds set out in the writ petition. Important of which are that the enquiry proceedings have not been held in accordance with the principles of natural justice, lack of jurisdiction and arbitrariness and also on the ground that the findings recorded by the enquiry officer are perverse. Another ground of challenge to the impugned order of punishment is that the enquiry officer has penalised the petitioner for some allegation which did not constitute part of the charges leveled against the petitioner and in respect of which the petition had no opportunity of defending himself. Yet another ground raised by the petitioner is that the Enquiry Officer and the appellate authority have not given reasons in support of their orders. 5. Respondents have contested the writ petition by asserting that the enquiry was held in accordance with the principles of natural justice in respect of the specific acts of misconduct committed by the petitioner. Shri L.C. Sharma was also appointed as disciplinary authority in terms of third bi-partite settlement dated 1.8.79. In terms of para-3-11 of this settlement, Chief Executive Officer or the Principal Officer in India of a Bank or an alternate officer at the Head Officer or principle officer nominated by him for the purpose shall decide which officer shall be empowered to take disciplinary action in the case of each officer or establishment and the disciplinary authority is itself empowered to conduct enquiry. Shri L.C. Sharma was appointed as disciplinary authority and he had every jurisdiction to hold enquiry against the petitioner and also to impose penalty on him. support of this assertion respondents have placed reliance on the Managing Director's circular dated 5.11.77, Circular dated 2.3.79 and Circular dated 28.5.81. It has also been stated by the respondents that as per promotion agreement dated 20.10.75 an employee who is penalised for proved gross misconduct is not entitled to be considered for promotion for a period of two years. Respondents have denied the plea of the petitioner that enquiry proceedings held against him are not fair or that the findings recorded against him are perverse. 6. On the question of competence of Shri L.C. Sharma to hold enquiry against the petitioner and pass the order of punishment, learned counsel for the petitioner gave out that he does not want to press this part of the argument. 7. Shri C.N. sharma, Senior Advocate, appearing for the respondents forcefully argued that this Court must not look into the merits, of the findings recorded by the Enquiry Officer and must not re-appreciate the evidence which has come on record. He argued that this Court must not examine the sufficiency or adequacy of the evidence. In support of this argument he placed reliance of the decision of the Supreme Court in Sayed Yakub v. Radha Krishna, AIR 1964 SC 477 , State of Madras v. G. Sundram, AIR 1965 SC 1103 and M.K Prasad v. State of Orissa and Bihar, AIR 1967 Patna 133 . 8. Shri Maloo, learned counsel for the petitioner, vehemently argued that the findings recorded by the Enquiry Officer are on the face of them perverse. The Enquiry Officer has recorded contradictory conclusions and had held the petitioner guilty in respect of some allegations which did not form part of the charge-sheet. 9. Before proceeding further I would like to remind myself that the jurisdiction of the High Court to interfere with the order of punishment, passed as result of disciplinary action taken against an employee, is well defined. The High Court does not act as a Court. of appeal and is not required to re-evaluate or re-appreciate the evidence produced during the course of departmental or domestic enquiry with the object of considering as to whether the findings recorded by the Enquiry Officer are possible. The High Court does not act as a Court. of appeal and is not required to re-evaluate or re-appreciate the evidence produced during the course of departmental or domestic enquiry with the object of considering as to whether the findings recorded by the Enquiry Officer are possible. However, it is one of the settled principles of exercise of certiorary jurisdiction under Art. 226 that the Court will set aside an order passed by quasi judicial authority which suffers from an error of law apparent on the face of it. where the finding recorded by the quasi judicial authority is based on inadmissible evidence or where the finding is based on no evidence, the Court will be entitled to interfere with such finding because that would be recorded as an error of law. 10. In the case of the petitioner four allegations of gross misconduct levelled against him by memo dated 16.10.80 are : (1) Reotous and disorderly behaviour on the premises of the Bank. (2) Wilful insubordination or disobedience of lawful and reasonable orders of the Management of superior. (3) Instigating other employee for committing the acts mentioned above. (4) Doing acts prejudicial to the interest of Bank. Allegations of minor misconduct are : (1) Failing to show proper consideration, countesy towards officers of the Bank. (2) Uneseemly and unsatisfactory behaviour while on duty. Other allegations levelled vide memo dated 8.12.80 are : Gross misconduct : (1) Unauthorised disclosure of information regarding affairs of the Bank which is likely he prejudicial to the interest of the Bank. (2) Disobedience of any lawful and reasonable order of the superior. Minor misconduct : (1) Negligence in performing duties. (2) Failing to show proper consideration and courtesy toward officers. 11. Enquiry Officer divided acts of major misconduct and minor misconduct in the following words : Major misconducts : (1) Riotous and disorderly behaviour on the premises of the Bank. (2) Wilful insubordination or disobedience of lawful and reasonable orders of the management. (3) Instigating other employees for committing the acts mentioned above. (4) Doing acts prejudicial to the interest of the Bank. (5) Unauthorised disclosure of information regarding affairs of the Bank, which is likely to be prejudicial to the interest of the Bank. Minor misconducts : (1) Failing to show proper consideration and courtesy towards officials of the Bank and unseemly and unsatisfactory behaviour while on duty. (2) Negligence in performing duty. (5) Unauthorised disclosure of information regarding affairs of the Bank, which is likely to be prejudicial to the interest of the Bank. Minor misconducts : (1) Failing to show proper consideration and courtesy towards officials of the Bank and unseemly and unsatisfactory behaviour while on duty. (2) Negligence in performing duty. 12. After considering the evidence produced before him he recorded a conclusion that the petitioner was responsible for the incident which took place on 12:6.80. In respect of Item No. 2 the Enquiry Officer held that although, Shri Gupta was not involved in any of the violent activities adopted by the demonstrators, he has remained as an eye-witness during the period and therefore, he is secondarily responsible for the incident. Item No. 3 of the charge was not held proved by the Enquiry Officer. In respect of charges No. 4 and 5 the Enquiry Officer held that the petitioner was not responsible for disclosure of information to the customer but he instigated the customer of the Branch to harass the Branch Manager. After recording these conclusions the Enquiry Officer proceeded to observe as under:- "Based on the above allegations proved as stated herein-above, I find that the following charges have been proved substantially against Shri Gupta. 1. Riotous and disorderly behaviour on the Bank premises. 2. Instigating other employees for committings acts mentioned above. 3. Doing acts prejudicial to the interest of the Bank. 4. Failing to show proper consideration and courtesy towards the officials of the Bank and unseemly and unsatisfactory behaviours while on duty." The Enquiry Officer further observed:- "The whole incident revolves round a simple matter of transfer, which is purely an administrative function and no employee has got any right to question. On this petty issue, Shri Gupta, being the Branch Representative, alongwith Shri Rajendra Singh gathered union leaders of various banks employees and other trade union leaders and instigated them to stage demonstration on 12.6.80, gheraoed MW 4, in his cabin, shouted at the top of their voice using abusive and threatening language and put all sorts of pressure of MW 4 to see that the relieving order issued to Shri Rajendra Singh is cancelled. It is, therefore, evident that Shri gupta and Rejendra Singh are the main persons behind the whole incident. It is, therefore, evident that Shri gupta and Rejendra Singh are the main persons behind the whole incident. Similarly, on 13th June, 1980 although he did not participate in any activities till 2.00 PM due to his presence in the Court, after 2.30 P.M. to about 6.30 P.M. Shri Gupta witnessed the whole violent affairs (that happened in the branch premises. It is, however, admitted that Shri Gupta was not involved in any violent methods adopted by the demonstrators. He, however, being the Branch Representative should have refrained the demonstrators from adopting such unlawful and violent methods against the branch officials." 13. After giving opportunity of hearing to the petitioner on the question of punishment the Enquiry Officer recorded the following observations : I have carefully gone through and have given a deep thought on the above submissions made by Shri Gupta and on his behalf by the Defence Representative Shri Mundul. I give my findings as under:- 1. As regards the charge of riotous and disorderly behaviour I may agree to the submission of Shri Gupta to the extent that he is not involved directly in any riotous and discorderly behaviour in the incidents of 12th and 13th June, 1980, which took place at Bharatpur branch. This fact has been substantially corroborated by the Management witnesses. I, however, cannot exonerate Shri Gupta completely from this charge. I cannot accept the pica of Shri Gupta that he had remained as a silent spectator and did not know what had happened at the branch on 12th and 13th June, 1980. As already recorded in my findings that Shri Gupta had admitted of having discussed the issue of transfer of Shri Rajendra Singh with other local Bank employees Union Leaders over phone and has confirmed of having participated in the demonstration held on 12th and 13th June, 1980 and his presence for a while in the branch premises and in the cabin of the Branch Manager, who was under gherao, on 12th June, 1980 evening and also his presence particularly between 2.30 P.M. and 6.30 P.M. on 13th June, 1980. These all reveal that Shri Gupta has participated and witnesses, almost all the activities of these two days' and he is the person alongwith Shri Rajendra Singh who had invited local bank employee union leaders, under whose control the entire activities of gherao, using abusive and threatening language against the Bank officials and disruption of bank's work, had taken place on these two days. I, therefore, cannot accept the plea of Shri Gupta that other local bank leaders are responsible for riotous and disorderly behaviour, in the branch premises. I am of the opinion, that in the capacity of Union representative, if he has invited other local bank leaders on the simple issue of transfer of an employee considering it as a part of union activity, he is also equally responsibly for invitees' action, Therefore, he cannot escape from his responsibility." I have, however, taken into consideration that since Shri Gupta is not directly involved in riotous and disorderly, as confirmed by the Management witnesses, a lenient view is to be taken while awarding the final punishment for this charge. I feel that the ends of justice will he met if the punishment of stoppage of one increment permanently, which would have the effect of postponing his further increments, is imposed on him. 2. As for his submissions made pertaining to the charge of instigating other employees, I do not agree with the statement of Shri Gupta that he carried out legitimate function of informing the local leaders of other banks on the issue of transfer and that the subsequent development took place in this connection were controled by his senior leaders of other banks, and that no instigation existed on his part as stated above. I may reiterate that Shir Gupta has witnessed most of the incidents taken place at the branch on 12th and 13th June, 1980, which is duly corroborated by the Management witnesses in their disposition. I may clarify that my arriving at the conclusion, that there existed darkness in the cabin of the branch manager and relieving orders torn off by some one, is not based only on the deposition of Shri Gupta but duly corroborated by the Management witnesses also, Shri Gupta and admitted of having participated in the demonstration on 12th and 13th June, 1980. He had admitted of having talked over phone on the issue of transfer to other bank leaders and also admitted his presence in the branch and for a while in the, cabin of the Branch Manager on 12th June, 1980. similarly on 13th June, 1981 the Management witnesses have confirmed his witnessing the incidents taking place particularly during 2.30 P.M. to 6.30 P.M. It is, thus, evident that Shri Gupta has witnessed the incident and his very presence in most of the activities itself proves his act of instigation. However, certain extenuating circumstances have appeared in the enquiry and in the personal hearing, which are as follows : (a) He has personally not put off the lights and fans and has no used abusive and threatening language to the Branch Manager during the time of gherao on 12.6.80. (b) On 13th June, 1980, till 2 P.M. he has neither witnessed nor participated in any activities taking place at the branch premises, since he had gone to attend some court work with the permission of the Bank officials and, therefore, the question of instigated others on his part does not arise for the period in question. (c) It is evident on perusal of exhibit M-2 that Shri Gupta was required to work in the Bills department on the day in question besides attending the day book. While attending bills department work, customers would necessarily ask queries in respect of the business, hence, the allegation proved by the Enquiry Officer for having instigated the customer on 22.9.80 does not hold good. On perusal of Ex. M-2 I have come to the conclusion that Shri Gupta was required to work in the Bills department besides day book on 22.9.80. Obviously, therefore, customers would necessarily ask him queries in respect of the business. I, therefore, agree to the submission of Shri Gupta that no instigation existed on his part in respect of the customer Shri Subhash Sharma, who had presented a cheque for collection on 22nd September, 1980. Besides, the management witnesses have confirmed that Shri Gupta has personally not put off the lights and fans, used abusive and threatening language against the Branch Manager on 12th June, 1980. similarly on 13th June 1980, up to 2.00 P.M. he has not witnessed or participated in any incident. Besides, the management witnesses have confirmed that Shri Gupta has personally not put off the lights and fans, used abusive and threatening language against the Branch Manager on 12th June, 1980. similarly on 13th June 1980, up to 2.00 P.M. he has not witnessed or participated in any incident. I have also taken into consideration his past record and documents D-I and D-2 duly attested by the branch official. I feel that in awarding the punishment, the approach should be essentially reformative, corrective and not punitive. Shri Gupta is a young man has to serve on the Bank a longer period. Considering all these aspects and the order extenuating circumstances, I feel that the punishment proposed for the stoppage of 4 increments with cumulative (effect) will be every severe. I, therefore, come to the conclusion that the proposed punishment of stoppage of 4 increments with cumulative effect be reduced to that of 2 increments permanently to meet the ends of justice, which would have the effect of postponing his future increments for a period of two years." 14. The appellate authority has recorded the following conclusion : "There is corroborative evidence that Shri Gupta was fully involved in all the incidence on 12th June, 1980 resulting in gherao and using abusive language. For the incident on 13th June, 1980, the Enquiry Officer has held Shri Gupta only partially responsible as he was away from the branch till 2.00 P.M. Shri Gupta's involvement in the incident on 12th June, 1980 is sufficient enough to hold him guilty of the charge of riotous and disorderly behaviour in the premises of the branch." 15. What has been found by the Enquiry Officer on the basis of the evidence produced by the Bank is (i) that the petitioner happens to be the branch representative of the staff ; (ii) He had received telephonic call from one Shri S.K. Suri, Union Leader, who talked to him about the transfer of Rajendra Singh; (iii) Rajendra Singh had come to him after receiving the order of transfer ; (iv) that he had taken part in the demonstration held on 12th June, 1980 and he was present in the cabin of the Branch Manger when he was gheraoed by the demonstrators. These facts cannot lead to an inference that the petitioner had indulged in any riotous of disorderly behaviour. These facts cannot lead to an inference that the petitioner had indulged in any riotous of disorderly behaviour. Mere participation in demonstration cannot be equated with riotous or disorderly behaviour. Likewise, participation in demonstration or discussion of a particular issue with other employees including Union leaders cannot be construed as instigating other employees for committing riotous or disorderly acts or wilful insubordination or disobedience of the lawful and reasonable orders of the management. Most significant part of the evidence of the Management is that during the incident on 12.6.80 the petitioner had neither personally put off the lights and fans or used any abusive or threatening language for Branch Manager. In reality, what influenced the Enquiry Officer to record a finding adverse to the petitioner is that inspite the being a responsible Branch representative the petitioner had not advised and controlled and refrained them from adopting violent method and gherao and using threatening language and putting all sorts of pressure on the Branch Manger and that he remained an eye-witness to the whole incident. In respect of incident of 13.6.80, the Enquiry Officer had himself found that the petitioner was not involved in any of the violent activities adopted by the demonstrators and he remained as an eye-witness. Merely, because the petitioner had remained as an eye-witness to the incident which took place on 13.6.80, it is impossible to hold that he is guilty of riotous or disorderly behaviour or he is guilty of instigating other employees for committing the acts like riotous or disorderly behaviour wilful insubordination or disobedience of the lawful and reasonable orders of the management. In respect of charge of instigating the customer the Enquiry Officer has himself recorded in his order the petitioner was required to work in the Bills Department on 22.9.80 and therefore, mere fact that the customer had contacted him cannot lead to a conclusion that he has instigated customer to harass the Branch Manager. 16. On the charge of failing to show proper consideration and courtesy towards the officers of the Bank and unseemly and unsatisfactory behaviour while on duty, on evidence has come on record in support of the charge. Once it is held by the Enquiry Officer that the petitioner had not instigated the customer on 22.9.80, this part of the charge could not have been held as proved against the petitioner. 17. Once it is held by the Enquiry Officer that the petitioner had not instigated the customer on 22.9.80, this part of the charge could not have been held as proved against the petitioner. 17. The above discussion shows that the Enquiry Officer has recorded a finding of guilty against the petitioner in respect of charge No. 1 to 4 without any evidence. Finding recorded by the Enquiry Officer is based on surmises and conjectures rather that on evidence. The Enquiry Officer was clearly led away by the extraneous factors like failure of the petitioner to curb the activities of the demonstrators and his presence in the premises of the Bank on 12th and 13th June, 1980. As I have already held above, mere presence of the petitioner in the premises, of the Bank, may be alongwith the demonstrators cannot lead to a conclusion that he is guilty of riotous or disorderly behaviour or that he incited the other persons to indulge in acts of gross indiscipline. Incitement involves an overt act on the part of person who enjoys a position of influence over others. No evidence has come on record to show that the petitioner enjoyed such a position of influence qua other employees that he could manage organisation or demonstration or gherao in the premises of the Bank. On the other hand, what has been proved is that local Union leaders had organised the demonstration and gherao. 18. In may considered opinion, the findings recorded by the Enquiry Officer are based on no evidence and, therefore, it must be held that the petitioner has been held guilty on the basis of perverse findings. As a logical corollary order of punishment passed against the petitioner is liable to be quashed. 19. Once the order of punishment is held to be based on perverse findings appellate order automatically falls flat. Further logical consequence of this conclusion is that the debarring the petitioner of promotion for a period of two years and making of entry to this effect in the seniority list automatically stand vitiated. 20. 19. Once the order of punishment is held to be based on perverse findings appellate order automatically falls flat. Further logical consequence of this conclusion is that the debarring the petitioner of promotion for a period of two years and making of entry to this effect in the seniority list automatically stand vitiated. 20. I may however, notice that during the pendency of the writ petition petitioner had been allowed to undertake the test held in the year 1983 for the purpose of promotion to the cadre of Officer and Shri C.N. Sharma has very fairly placed before the Court the result of the test which indicates that the petitioner has not been successful. 21. In the result, the writ petition is allowed. Order dated 1.10.81 and 16.11.81 are declared illegal and are hereby quashed. The petitioner shall be entitled to consequential benefits. Costs made easy.Writ allowed. *******