Judgment S.P. Talukdar, J. Assailing the Articles of Charge dated 11th April, 2003 and the order of appointment of the Enquiring Authority and seeking cancellation of the findings of the enquiry report dated 24th June, 2007, cancellation of the show-cause notice dated 20th March, 2007 and the order of removal dated 22nd August, 2007, the petitioner filed the instant application under Article 226 of the Constitution. 2. The facts are: The National Institute of Homoeopathy, being respondent No.1 herein, issued an advertisement in June, 1991 inviting applications for the post, of Associate Professor in Organon of Medicine and Philosophy, Chronic Diseases and Psychology. The eligibility criteria as prescribed was- (a) A recognized degree or equivalent qualification in Homoeopathy obtained after undergoing a regular course in a recognized Institute for at least four years' duration; and (b) Seven years teaching experience out of which at least four years of teaching experience in the concerned subject as Assistant Professor/Lecturer in a recognized Homoeopathic College/Institute. 3. The petitioner with a brilliant academic career and author of three books on Organon of Medicine, which were highly applauded by luminaries in the field of Homoeopathy, Kolkala applied for the post of 'Assistant Professor on 5.7.1991 disclosing all his credentials and testimonies. He submitted certain additional information in response to the call of the Institute. 4. After due scrutiny of all relevant particulars, the Governing Body approved the selection of the petitioner to the said post. On 19.3.1991 i.e. after more than two years from the date of interview, the petitioner was appointed. 5. Central Bureau of Investigation lodged FIR and started a case against the petitioner on 11.7.1991 alleging that he had furnished false and fabricated documents/information for obtaining the job in NIH. The petitioner joined NIH on probation on 11.7.1994. 6. On 11th of December, 1996, CBI submitted final report on the ground that there was no sufficient material justifying proceeding with the criminal case. It was suggested that departmental proceeding could, however, be initialed. It was not done at that time by NIH. The petitioner applied for the post of Director, CCRH, New Delhi and NIH in August, 2002. Since he was not short-listed, he filed a writ application before the High Court, Delhi. 7. On 11.4.2003, a charge-sheet was issued against the petitioner for not highlighting his teaching experience for the post of 'Associate Professor' in NIH, Kolkata. 8. The petitioner applied for the post of Director, CCRH, New Delhi and NIH in August, 2002. Since he was not short-listed, he filed a writ application before the High Court, Delhi. 7. On 11.4.2003, a charge-sheet was issued against the petitioner for not highlighting his teaching experience for the post of 'Associate Professor' in NIH, Kolkata. 8. Challenging the charge-sheet, which was issued basically on the allegation that he had submitted false and fabricated Certificate relating to his teaching experience he filed a writ application, being W.P. No. 9150(W) of 2003. NIH took the stand in the affidavit-in-opposition that he was given relaxation for experience by the Selection Committee based on information given in the application form. 9. On 15.10.2001, the said application was allowed by quashing the charge-sheet on the ground of delay. NIH preferred an appeal. During pendency of the appeal, he was promoted as Professor of NIH on 25.4.2005. 10. In 2005, a fresh advertisement for the post of Director, NIH, Kolkata was issued and the petitioner was interviewed for the same. He was selected but no appointment letter was issued. 11. In the appeal preferred by NIH against the order of dismissal of the writ petitioner, the learned Division Bench by order dated 16.5.2006 upheld the charge-sheet holding that the contention with regard to alleged suppression of experience could be urged in the departmental proceeding. 12. The petitioner replied to the charge-sheet highlighting the fact that the Selection Committee considering his excellent career had relaxed the criteria relating to teaching experience. 13. Enquiry Officer was appointed thereafter. He submitted report to the Joint Secretary, Department of AYUSH, Ministry of a Heath & Family Welfare. On 29.1.2007, enquiry report was forwarded to the petitioner, who submitted representation on 17.2.2007. On 20.3.2007, a second show-cause notice was issued. The petitioner was removed from service by order dated 22.8.2007. 14. Grievance of the petitioner, as ventilated by learned Counsel Mr. Sengupta, relates to alleged illegality and arbitrariness on the part of the respondent authority in initiating a disciplinary proceeding and subsequent passing of an order of removal from service. He submitted that the petitioner could not have had seven years' experience in 2001 since he joined on 26th of September, 1984. The petitioner was presumably, if not certainly, treated as an exceptional candidate and so, relaxation was made. He submitted that the petitioner could not have had seven years' experience in 2001 since he joined on 26th of September, 1984. The petitioner was presumably, if not certainly, treated as an exceptional candidate and so, relaxation was made. Referring to the fact that CBI started a criminal case alleging fraud and fabrication of false evidence, it was submitted that since investigation could not result in making out a criminal of1ence, departmental proceeding was initiated at the dictation of CHI. The departmental enquiry had been assailed on the further ground that it was without jurisdiction. According to Mr. Sengupta charge-sheet does not disclose any misconduct and disciplinary proceeding was conducted by an authority, which did not have jurisdiction. It was also contended that the onus was shifted on the petitioner and defence stand was not taken into consideration. 15. Referring to section 38 of the West Bengal Homoeopathic System of Medicine Act, it was submitted that embargo is on the practitioner and it cannot be given wider meaning. Section 2(8) of the said Act lays down that registered homoeopathic practitioner means 'a homoeopathic practitioner registered under the provisions of this Act. 16. Mr. Sengupta submitted that appointing enquiry officer at the stage of issuing charge-sheet reflects bias and is in violation of natural justice and he referred to the decision of the Apex Court in the case of State of Punjab vs. V.K. Khanna & Ors., as reported in 2001(2) SCC 330 . It was also submitted that adverse inference to be drawn against prosecution if best document is withheld. 17. Referring to the up-reported decision of the Division Bench of this. Court in the case of Rudra Pradip Singh vs. DVC in W.P. No. 30312(W) of 1997, it was submitted by Mr. Sengupta that since the petitioner produced all his credentials which were repeatedly scrutinized and verified by the authorities, it was not just on their part to initiate disciplinary proceeding. 18. In the case between Sreman Kumari (Smt.) And State of Rajasthan & Ors., as reported in 1997(1) LLJ 990, learned Single Bench of Rajasthan High Court held that once having given the appointment to the candidate after due screening of the documents furnished by the candidate, it was not open to the respondents at a later stage to terminate the candidate's services, since there had been no concealment made by the candidate. Similar view was taken by learned Single Bench of this Court in the case of Bellari Sarkar (Smt) vs. DVC & Ors., as reported in 1999 (11) CLR 558 the Apex Court in the case of Dr. M.S. Mudhol & Anr. vs. S.D. Halegkar & Ors., as reported in 1993(3) SCC 591 , held that if in spite of the candidates placing all the cards before the Selection Committee, such Committee for some reason or the other had thought it fit to choose him for the post, it would he iniquitous to make him suffer for the same later. 19. In the case of Sri Krishinan vs. Kurukshetra University, Kurukshetra, as reported in 1976 (1) SCC 311 , it was held that it is not fraud if the person on whom fraud is committed can discover the truth by due diligence. Mr. Sengupta submitted that respondent after scrutinizing candidatures are estopped from contending suppression by candidate. 20. It is not in dispute that the petitioner challenging the issuance of charge-sheet knocked the doors of the Writ Court earlier, in view of the order of the Hon'ble Division Bench in the appeal arising out of the order of the learned Single Judge there is little scope to raise any grievance afresh in that regard. Assertion that the charge-sheet does not disclose any misconduct does not seem to have any legs to stand upon. "Misconduct" is defined as 'a dereliction of duty: unlawful or improper behaviour". An affirmative act of misrepresentation or concealment of a material fact is affirmative misconduct. (Ref. Black's Law Dictionary, 7th Edn., page-1013). Order of the Hon'ble Division Bench leaves very little scope for raising dispute regarding authority of the President in the matter of disciplinary proceeding. Besides, in view of Rule 10.7 of the Rules and Regulations of the National Institute of Homeopathy, the President is authorised to exercise any or all of the powers of the Governing Body. 21. Learned Counsel for the respondent Nos. 1 and 4 submitted that the basic allegation is that the petitioner misrepresented the facts particularly in respect of his teaching experience. It was contended that the petitioner deliberately stated the year of commencement of course as the year of passing the examination to justify the reaching experience on and from 26.9.1984. 21. Learned Counsel for the respondent Nos. 1 and 4 submitted that the basic allegation is that the petitioner misrepresented the facts particularly in respect of his teaching experience. It was contended that the petitioner deliberately stated the year of commencement of course as the year of passing the examination to justify the reaching experience on and from 26.9.1984. Allegation is that he in his application form, thus, deliberately omitted and withheld certain information so far as the years of passing and engagement in internship arc concerned. It was further submitted that the petitioner could not have any answer how he could continue with internship prosecute M. Sc. Course and render services at the said Medical College & Hospital at different places at the same time and during the same years. 22. Mr. Kapoor as learned Senior Counsel for the respondent authorities, first submitted that the writ petitioner could not be addressed as a Doctor as on 26th September, 1984. His assignment as 'honorary' is inadequate. During 1985-87, petitioner was admittedly studying. The result was out on 19th August, 1984. This was required to be followed up by one year of internship. Inviting attention of the Court to Page 73 of the writ petition Mr. Kapoor submitted that how could the petitioner add the period of study leave to his experience. Mr. Kapoor emphatically submitted that there is no such material so as to lead to the presumption that the authority concerned relaxed the relevant criteria relating to experience. He quickly added that if the petitioner claims to have the experience why should he seek relaxation at all. 23. Referring to the particulars furnished by the petitioner as the candidate in his own handwriting being Annexure-'P-5' at page 107, it was submitted that certain relevant information were not disclosed and this was a conscious act on the part of the writ petitioner. Columns 7 & 8 of the said Annexure-'P-5' were referred to in support of the contention that the petitioner in a rather calculated manner suppressed certain required particulars. It was next submitted that in view of the first round of litigation, the petitioner cannot be permitted to raise the plea that the allegations or the charges against him are far too vague. It was next submitted that in view of the first round of litigation, the petitioner cannot be permitted to raise the plea that the allegations or the charges against him are far too vague. He invited attention of the Court to the various decisions of the Apex Court in support of his contention that the principle of res judicata very much apply even to a writ application. 24. Referring to the decision of the Apex Court in the case of Jammu & Kashmir Public Service Commission vs. Farhat Rasool Ors. as reported in 1995 Supp (4) SCC 621, Mr. Kapoor submitted that the petitioner having furnished wrong information as to his eligibility is not entitled to relief as sought for. 25. In the case of Addl. General Manager-Human Resource, Bharat Heavy Electricals Ltd. vs. Suresh Ramkrishna Burde, as reported in 2007(5) SCC 336 , it was submitted that if the foundation is wrong, anything built on that foundation is also wrong. Mr. Kapoor contended that if the basis of appointment is wrong, it is no appointment in the eye of law. In this context, he referred to an earlier decision in the case of R. Vishwanatha Pillai vs. State of Kerala, as reported in 2004(2) SCC 105 . 26. Learned Senior Counsel for the respondent authority categorically submitted that the issues which were raised in the earlier writ application and dealt with by learned Single Bench as well as by the learned Division Bench in the appeal arising out of the judgment and order of the Single Bench having been already adjudicated, the same cannot be reopened. He, thus, submitted that the petitioner cannot raise the plea that the respondent authority acted with malice and proceeded against the writ petitioner in a mala fide manner. 27. The Apex Court in the case of Union of India vs. Nanak Singh, as reported in AIR 1968 SC 1370 , held that there is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties. 28. 28. In the case of State of Madras vs. G. Sundaram, as reported in AIR 1965 SC 1103 , the Apex Court held that in response to an application under Article 226 of the Constitution, the High Court can only enquire whether finding is based on no evidence but cannot reassess evidence. Even in an earlier case between State of Orissa & Anr. vs. Murlidhar Jena, as reported in AIR 1963 SC 404 , it was held that in proceedings under Articles 226 & 227, the High Court cannot sit in appeal over the findings recorded by a competent tribunal in a departmental enquiry so that if the High Court has attempted to re-appreciate the evidence for itself that would be outside its jurisdiction. 29. The Apex Court in the case of Forward Construction Co. & Ors. vs. Prabhat Mandal (Regd.), Andheri & Ors., as reported in 1986(1) SCC 100, dealt with the scope of section 11 Explanation IV of the Civil Procedure Code. It was observed that the principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. Where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was, thus, submitted that the judgment in the earlier writ petition would operate as res judicata even where one of the grounds taken in the subsequent writ petition was absent in the earlier petition. 30. In the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra & Ors., as reported in 1990(2) SCC 715 , it was observed by the Apex Court that the binding character of judgments of Courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasized by the Constitution, is founded and a judgment of the High Curt under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal. 31. 31. It is settled principle of law that the scope of judicial review is limited and High Court while dealing with an application under Article 226 or 227 cannot sit as a Court of Appeal and is not permitted to re-appreciate the evidence or to reevaluate the materials. This can only be done where a case of perversity is made out. It is beyond the scope of judicial review to be concerned with the adequacy or sufficiency of the evidence. 32. Reference was made to the decision in the case of Union of India & Ors. vs. Upenda Singh, as reported in 1994(3) SCC 357 , while submitting that the High Court acting under Article 226 may not be bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view. Mr. Kapoor submitted that this Court has no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. 33. The Apex Court in its decision in the case of B.C. Chaturvedi vs. Union of India & Ors., as reported in 1995(6) SCC 749 , laid down that power of judicial review is meant to ensure that the individual receives fair treatn1ent and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. 34. It was emphatically highlighted on behalf of the respondent authority that the power of judicial review can only be exercised so as to assess the decision making process and not the decision. Disciplinary authority is the sole Judge of facts. 35. Question of re-appreciation of evidence and coming to its own conclusion on the proof of the charge is beyond the scope of Article 226. The only consideration is whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. [Ref: State of T.N & Anr. vs. S. Subramania, 1996(7) SCC 509 ]. 36. It was further contended on behalf of the respondent that the writ petitioner deceptively projected himself as would reveal from the various particulars copies of which have been annexed to the writ application. [Ref: State of T.N & Anr. vs. S. Subramania, 1996(7) SCC 509 ]. 36. It was further contended on behalf of the respondent that the writ petitioner deceptively projected himself as would reveal from the various particulars copies of which have been annexed to the writ application. In this context, attention of the Court was particularly drawn to Annexure-'P-5' at page 107. It was mentioned that such act of conscious deception, which was detected and taken care of later, does not deserve any sympathetic consideration. 37. In this context, reference was made to the decision in the case of A.P. Public Service Commission vs. Koneti Vekateswarulu & Ors., as reported in 2005 AIR SCW 5175 in support of the contention that cancellation of appointment is proper where such person indulges in suppresso veri and suggestio falsi and obtains employment by false pretence. The Apex Court in the said case held that even plea of inadvertence is untenable. Here in this case such a plea was not raised either. It is settled principle of law that judicial review is not against the decision. It is against the decision making process. [Ref: Bank of India & Ors. vs. T. Jogram, 2007(7) SCC 236 ]. 38. It was further submitted on behalf of the respondent authority that plea of denail of natural justice cannot be raised in a routine manner unless prejudice is caused. In this context, reference was made to the decision in the case of State of U.P. vs. Harendra Arora & Anr., as reported in 2001(6) SCC 392 . 39. Reference was further made to the decision of the Apex Court in the case of Indian Oil Corporation Ltd. & Anr. vs. Ashok Kumar Arora, as reported in 1997(3) SCC 72 & R.S. Saini vs. State of Punjab & Ors., reported in AIR 1999 SC 3579 . 40. There can be no doubt that the High Court while exercising its writ jurisdiction under Article 226 of the Constitution does not and cannot act as an Appellate Court/authority. The jurisdiction of the High Court is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity and findings are based on no evidence or the punishment is totally disproportionate to the nature of the misconduct of an employee. The jurisdiction of the High Court is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity and findings are based on no evidence or the punishment is totally disproportionate to the nature of the misconduct of an employee. The Writ Court while exercising writ jurisdiction is not expected to reverse a finding of the enquiring authority on the ground that the evidence adduced before it is in sufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole Judge of fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. 41. It was contended on behalf of the writ petitioner that what fell for consideration before the learned Division Bench is certainly different from the grievance as raised in the present application. In this context, it may be necessary to mention that the grounds on which charge sheet was predominantly challenged were that the charge-sheet was scrupulously belated it was in colourful exercise of powers and on account of malice on the part of the 5th respondent that the charge sheet surfaced and that the charge-sheet did not disclose any misconduct. 42. It was categorically observed by the learned Appeal Bench that the plea raised by the delinquent regarding the malice or mala fide about respondent No. 5 could not be accepted. In fact, the learned Appeal Court categorically held that respondent No. 5 before it was nowhere in the scene at the relevant time. Thus, the plea that the respondent authorities acted with malice docs not seem to be open for adjudication any further. Grievance relating to belated action on the part of the respondent authority was also dealt with earlier and there is no scope for raising that plea either. 43. As observed earlier, mere fact that the CBI after investigation could not find any prima facie material so as to justify filing of a charge-sheet could not by itself stand in the way of proceeding with such enquiry. 43. As observed earlier, mere fact that the CBI after investigation could not find any prima facie material so as to justify filing of a charge-sheet could not by itself stand in the way of proceeding with such enquiry. It also could not lead to any presumption that there could be no such material to justify initiation of such an enquiry. By no stretch of" imagination it can be said that the initiation was at the instance of the Central Bureau of Investigation. So far the allegation that this was done with a mala fide intention and in order to accommodate another person does not seem to have any force. And as discussed earlier, there is very little scope for raising that plea once again as this aspect was dealt with in connection with the earlier writ application. Assuming that the writ petitioner has a brilliant academic record, it cannot lead to any presumption that the entire thing was done out of jealousy and envy. I am afraid, the petitioner does not seem to be having such a colourful background, which could raise jealousy and envy in the minds of others. And, thankfully so. 44. The standard of proof in a disciplinary proceeding is different from that in a criminal trial. While the former is concerned with preponderance of probability, the latter demands proof beyond reasonable doubt. In this context, it may also be mentioned that credibility of testimony depends on judicial evaluation of totality and not isolated scrutiny. Even in a criminal trial, proof beyond reasonable doubt is mere guideline, not a fetish. Truth suffers from infirmity when projected through human process. This is, however, of little relevance in a departmental proceeding. After analyzing the materials on record, this Court finds it difficult to accept that the authority concerned did not consider the stand of the delinquent/writ petitioner. True, non-consideration of material sometimes may lead to perversity justifying interference by the Writ Court. The present case, however, does not reflect such perversity. 45. So far quantum of punishment is concerned, having regard to the nature of the charges, there could be very little scope for taking any different view. The appointment of the petitioner being based on suppression of relevant materials, such an appointment cannot pass the test or judicial scrutiny. The present case, however, does not reflect such perversity. 45. So far quantum of punishment is concerned, having regard to the nature of the charges, there could be very little scope for taking any different view. The appointment of the petitioner being based on suppression of relevant materials, such an appointment cannot pass the test or judicial scrutiny. Having regard to the peculairity of the background, it will not be proper to hold that since petitioner is associated with the Institute for quite sometime, it may not be just and proper to dismiss him. Such a view will impliedly amount to condoning an act, which suffers from inherent vice. It docs not also deserve to be justified by taking a philosophical stand that if every saint has a past, every sinner has a future. The entire controversy relates to an academic institution and compassion or sympathy need to be effectively rationalized in the larger interest of the students and the Institute. 46. Considering all these aspects, I find it difficult to appreciate the grievances as ventilated in the application. The impugned order docs not seem to suffer from any such infirmity or illegality, which can justify interference by this Court. 47. Accordingly, the writ application being W.P. No 20913(W) of 2007 fails and be dismissed. Interim order, if any, stands vacated. 48. There is no order as to costs. 49. Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible. Writ application dismissed.