D.N. Mehta, J.
1. The petitioner herein Punamchand Meghaji Shikhare has filed this petition under Article 226 of the Constitution of India praying for a writ of certiorari with a direction to quash the order of removal of the petitioner from service passed by respondent No. 1, the Superintendent of Police, Aurangabad, dated 31-1-1975 as also the order passed by the under Secretary to the Government of Maharashtra, Home Department, dated 18-12-1981.
2. The petitioner was employed as an Unarmed Head Constable and was stationed at the Police Station, Paradh. On 31-1-1972 one Shivsing Rajput lodged a complaint with the Police Inspector, Anti-Corruption Bureau, Aurangabad, to the effect that Police Head Constable Shinde had demanded from him through Police Constable Dongre of Paradh Police Station illegal gratification of Rs. 15/- for himself and an amount of Rs. 50/- for Dongre as a reward for dropping the proceedings in a police cased involving the complainant Shivsing Rajput, who was found carrying 'Ganja' on a cycle and for returning the said cycle. On receipt of this complaint, the Police Inspector, Anti-Corruption Bureau, Aurangabad, Registered offence against Police Constable Dongre under section 5(2) of the Prevention of Corruption Act. The Police Inspector, Anti-Corruption Bureau, Aurangabad, further filed an application before the Judicial Magistrate, First Class, Bhokardan, for necessary sanction as required by section 5(1) of the said Act for carrying out investigation into the said offence. The learned Judicial Magistrate First Class, Bhokardan, was pleased to grant permission to the Police Inspector, Anti-Corruption Bureau, Aurangabad.
3. Thereafter, the Investigating Officer arranged to lay a trap. On 31-1-1972, the complainant Shivsing Rajput, according to the previous plan met Police Constable Dongre and handed over the amount of Rs. 65/- as per the original demand. The said sum was accepted by Police Constable Dongre and he immediately handed over the said amount to the present petitioner, Unarmed Police Head Constables Shikhare, who was present there with Dongre. The petitioner accepted the amount from Dongre and kept the same in his shirt pocket. Immediately thereafter the Anti-Corruption Bureau officials raided the place and recovered the amount of illegal gratification from the possession of the petitioner. The petitioner thereafter was served with a charge-sheet by the first respondent, the Superintendent of Police Aurangabad.
4. By an order dated 31-1-1973 passed by respondent No. 1, the present petitioner and Police Constable Dongre were suspended from service pending the Departmental Enquiry against them. The petitioner was served with a Memorandum of Charge which was in the following terms :---
'Perverse conduct in that you, UHC Punamchand Meghaji Shikahare, B.No. 1648 of Police Station Paradh, had kept the amount of illegal gratification i.e. Rs. 65/- accepted by Shrirang Santram Dongre, B. No. 1425, on 31-1-1972, at Paradh in your possession and thereby connived the acceptance of illegal gratification by UPC Shrirang Santram Dongre, B.No. 1425.'
5. Along with the Memorandum of Charge, the petitioner was also served with a statement of allegations together with a statement of witnesses. In the said statement of allegations, it was stated that on 24-1-1972 one Shivsing Rupchand Pardeshi was passing on a cycle by the Police Station at Paradh in a suspicious manner and was stopped by UHC Riyazuddin and others and during the course of his search, six packets of Ganja were recovered from him and hence an offence under section 66(b) of the Bombay Prohibition Act was registered against him. The cycle and the Muddemal were attached by the Police at the Paradh Police Station. Shivsing Pardeshi was arrested and later released on bail. It was further alleged in the said statement of allegations that on 30-1-1972 Shivsing went to the Paradh Police Station in order to recover his bicycle at which time Police Constable Dongre demanded a sum of Rs. 65/- for returning the said bicycle and for not proceeding with the prosecution of the case against him. P.C. Dongre suggested to Shivsing that the said amount be paid to him on 31-1-1972 in Jaideo Yatra or at Paradh. Thereafter Shivsing Pardeshi reported the matter to the Anti-Corruption Bureau at Aurangabad and a trap was laid on the same day as aforesaid.
6. Thereafter respondent No. 1, the Superintendent of Police, Aurangabad, appointed the Sub-Divisional Police Officer, Vaijapur as the Enquiry Officer to conduct a Department Enquiry against P.C. Dongre and the present petitioner. Several witnesses were examined during the course of the Departmental Enquiry. The present petitioner and P.C. Dongre also examined certain witnesses in their defence. The Enquiry Officer found P.C. Dongre guilty of the charge of accepting illegal gratification and held that the case against him had stood proved. He, however, exonerated the present petitioner and held that UHC Shikhare had kept the amount with him out of un attentiveness and ignorance. Although the order of the Sub-Divisional Police Officer, who held the enquiry is not dated the record shows that it must have been passed sometime prior to 19-11-1974.
7. Thereafter on 19-11-1974 a show cause notice was issued against P.C. Dongre as also the present petitioner. The Superintendent of Police, Aurangabad, who was the appointing authority of the Enquiry Officer, went thought the report of the Enquiry Officer and disagreed with the findings so far as the present petitioner was concerned. The Superintend of Police, Aurangabad, respondent No. 1, while disagreeing with the findings of the Enquiry Officer, held, that the present petitioner had knowledge of the fact that the amount of Rs. 65/- was paid to P.C. Dongre as a bribe, and when the said amount was passed on to him by P.C. Dongre, he accepted the same and kept the amount in his pocket, thereby conniving in the offence. The Superintendent of Police held further that even if the present petitioner was not present at the time of the acceptance of bribe by P.C. Dongre, the petitioner should have known for what purpose P.C. Dongre had been given the amount. He further held that the petitioner had not raised any protest when the amount was given to him by P.C. Dongre. On the contrary, he accepted the amount and quietly kept the same in his pocket without raising any question. He, therefore, held that the charge against the present petitioner was proved. Thereafter a show cause notice was issued against the present petitioner to show cause why he should not be removed from service. The Superintendent of Police, respondent No. 1, by his order dated 31-1-1975 ordered that the present petitioner be removed from service from the date of his suspension.
8. Being aggrieved by the said order dated 31-1-1975 passed by the Superintendent of Police, Aurangabad, the present petitioner filed an appeal before the Deputy Inspector General of Police, Aurangabad. It, was, however, found that the then Deputy Inspector General of Police, Aurangabad, was the same officer who had passed the final orders of removal of the petitioner from service in his capacity as the Superintendent of Police, Aurangabad. Thereafter, the appeal was heard by the Inspector-General of Police. After going through the record and the documents, the Inspector General of Police, Shri Wagh, by his order dated 6-4-1976 dismissed the said appeal of the petitioner. He came to the conclusion that the charge of perverse conduct in keeping the amount of illegal gratification of Rs. 65/- by the present petitioner was held proved against the petitioner. The Inspector General of Police also held that considering the seriousness of the charge, he did not feel that there was any reason for interfering with the punishment imposed on the petitioner.
9. The petitioner thereafter preferred a revision application against the order of the Inspector General of Police, Shri Wagh, to the Secretary, Home Department, Government of Maharashtra. The revision application was considered by the Assistant Secretary to the Government of Maharashtra, Home Department. The Assistant Secretary, felt that in as much as the Inspector General of Police, State of Maharashtra, had heard the appeal, the petitioner had lost the opportunity of filing a revision application before the Inspector General of Police, and to that extent the case of the petitioner was prejudiced. The Assistant Secretary field that if the Deputy Inspector-General of Police, Aurangabad, was the same gentleman who passed the order of removal, then the Inspector-General of Police ought to have transferred the appeal to some other Deputy Inspector-General of Police. In this view of the matter, he set aside the order dated 6-4-1976 passed by the Inspector General of Police, Shri Wagh, and directed that the appeal be re-heard by the then incumbent of the post of the Deputy Inspector-General of Police, Aurangabad, Range, Aurangabad, with a direction that the should pass a fresh order in appeal with reference to the appeal application preferred to him.
10. The petitioner's appeal was then re-heard by the Deputy Inspector General of Police, Aurangabad Range, Aurangabad, Shri Sahni. By his order dated 31-5-1979 the Deputy Inspector-General of Police came to the conclusion that the charge of perverse conduct on the part of the petitioner in accepting the amount of bribe from P.C. Dongre and keeping it in his pocket was proved beyond doubt. Consequently, he dismissed the petitioner's appeal. He also felt that there was no reason for interference with the punishment imposed on the petitioner.
12. Against the said order passed by the Inspector-General of Police dated 30-6-1980, the petitioner filed an appeal to the Home Department Government of Maharashtra. The Under Secretary to the Government of Maharashtra, Shri Dixit, by his order dated 18-12-1981 rejected the petitioner's appeal. He held that the petitioner's contention that he had no knowledge that the amount handed over by P.C. Dongre to him was towards the bribe, was unacceptable. In these circumstances, the petitioner's appeal was rejected.
13. The petitioner has now approached this Court by way of the writ petition, praying for quashing the order of the Superintendent of Police dated 31-1-1975, as also the order of the Deputy Inspector-General of Police, Shri Sahni dated 31-5-1979, as also of the Inspector-General of Police dated 30-6-1980 and the order of the Under Secretary to the Government of Maharashtra dated 18-12-1981.
14. Shri Bora, the learned Advocate appearing on behalf of the petitioner, has made two submissions in this petition. He firstly submitted that the order of the Superintendent of Police, Aurangabad, was an invalid order, in that the Superintendent of Police failed to take into consideration the fact that the basic ingredient in a charge of acceptance of illegal gratification i.e. the demand for the bribe, had not been proved against the petitioner. He further submitted that the petitioner had been charged with conniving with P.C. Dongre and that the word 'Connive' meant conspiracy with or abetment of the offence of acceptance of illegal gratification. Shri Bora contended that there was no evidence on record to show that the petitioner was aware or had the knowledge that the amount of Rs. 65/- accepted by P.C. Dongre was towards acceptance of bribe.
15. Secondly, Shri Bora contended that the order of the Deputy Inspector General of Police, Shri Sahni dated 31-5-1979 was an invalid order inasmuch as the said officer had failed to apply his mind to the facts of the case and the record and documents produced before him.
16. We shall first consider and discuss submission of Shri Bora. Shri Bora contended that on a perusal of the order passed by the Deputy Inspector-General of Police, Aurangabad, Shri Sahni, it will be noticed that the said officer had taken down verbatim word for word and paragraph by paragraph the order passed by the Inspector-General of Police, Shri Wagh dated 6-4-1976. Shri Bora argued that this mechanical reproduction by the Deputy Inspector-General of Police would indicate only one thing that the Officer had not cared to go through the record and documents of the case and to apply his mind afresh to the facts of the case and arrive at his own conclusion. Shri Bora submitted that the Officer had merely adopted the reasoning of the order passed by the Inspector-General of Police, Shri Wagh and endorsed the same as his own.
17. We have perused the order of the Deputy Inspector-General of Police dated 31-5-1979 and we find that in a large measure Shri Bora is justified in the grievance which he has made. On a perusal of the order passed by the Deputy Inspector General of Police dated 31-5-1979 and the order passed by the Inspector General of Police dated 6-4-1976, we find that the Deputy Inspector General of Police from paragraph 2 onwards of his order has followed the pattern of the order passed by the Inspector-General of Police word for word and paragraph by paragraph. Now it is pertinent to point out that when the Assistant Secretary to the Government of Maharashtra, Home Department in his order dated 20-12-78 set aside the order of the Inspector-General of Police, he directed that the appeal be heard by the Deputy Inspector-General of Police, he directed that the appeal be heard by the Deputy Inspector-General of Police, Aurangabad Range, Aurangabad, who should pass a fresh order in appeal with reference to the petitioner's application. Therefore, the Deputy Inspector-General of Police was called upon to re-hear the appeal and apply his mind afresh to the appeal filed by the petitioner. Instead of applying his mind to the evidence and the record of the case, the Deputy Inspector General of Police appears to have merely reproduced the order passed by the Inspector General of Police. He had thereby brought into existence the order which had been passed by the Inspector General of Police and which had been set aside by the Assistant Secretary to the Government of Maharashtra, Home Department on 20-12-1978. We, therefore, feel that there is considerable substance in Shri Bora's contention that the Deputy Inspector, General of Police had failed to apply his mind to the evidence and the record, which he was called upon for General of Police dated 31-5-1979 deserves to be set aside. If that order is set aside, then the subsequent order of the Inspector General of Police dated 30-6-1980 by which the petitioners revision was rejected and the order of the D.I.G. was confirmed, would also have to be set aside. For the same reason, the order of the Under Secretary to the Government of Maharashtra, Home Department, dated 18-12-1981 which confirmed the appellate order of the Inspector-General of Police also have to be set aside.
18. The question which we were confronted with at this stage was whether we ought to remand this case to the Deputy Inspector-General of Police to re-hear the appeal of the petitioner or whether we should consider Shri Bora's first submission that there was a total lack of evidence on the charge of perverse conduct by conniving in the acceptance of bribe by P.C. Dongre. At this stage, we consider it relevant to enquire into the scope of the powers of this Court to hear matters under Article 226 of the Constitution of India. For this purpose, it will be relevant to refer and discuss certain authorities which have been cited at the Bar.
19. Shri Bora firstly relied upon the ruling of the Supreme Court in the case of Union of India v. H.C. Goel, reported in : (1964)ILLJ38SC wherein their Lordships were pleased to observe :
'Mala fide exercise of power can be attacked independently on the ground that it is mala fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. 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 not evidence to support it. The two infirmities are separate and distinct though, conceivable, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide, the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides.'
20. Shri Bora next relied upon the ruling of the Supreme Court in the case of State of Andhra Pradesh and others v. Chitra Venkata Rao, reported in : (1976)ILLJ21SC , where the scope of the Court under Article 226 of the Constitution was discussed. Their Lordships held:
'The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in (State of A.P. v. Sree Rama Rao), : (1964)IILLJ150SC . First, there is no warrant for the view that in considering whether a public officer is guilty of mis-conduct 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 the rule be not applied by a domestic Tribunal of inquiry the High Court in petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a department enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonable 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 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry 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 a irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at the conclusion, the departmental authorities are, if the enquiry is otherwise properly held, the sole Judges of facts and if there is some legal evidence on which findings can be based, the adequacy or 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.
'The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior Court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. 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 or 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.'
21. Shri Bora next cited before us the ruling of the Supreme Court in the case of Nand Kishore Prasad v. The State of Bihar and others, reported in A.I.R. 1979 S.C. 1277, wherein their Lordships were pleased to observe :---
'Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystalised by judicial decisions. The first of these principles is that disciplinary proceedings before a domestic Tribunal are of a quasi-judicial character, therefore, the minimum requirement of the rules of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence i.e., evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India v. H.C. Goel, : (1964)ILLJ38SC , 'the principle that in 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.'
'The second principle, which is a corollary from the first, is that if the disciplinary inquiry has been conducted fairly without bias or prediliction, in accordance with the relevant disciplinary rules and the constitutional provisions, the order passed by such authority cannot be interfered with in proceedings under Article 226 of the Constitution, merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial.'
22. On the question of the scope of the powers of this Court under Article 226 of the Constitution of India, Shri Jadhav has also drawn our attention to certain authorities. Shri Jadhav referred us to a ruling of the Supreme Court in the case of J.D. Jain v. Management of State Bank of India and another, reported in : (1982)ILLJ54SC , wherein the learned Judges were pleased to hold :---
'In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.'
It may be pointed out that the case relied upon by Shri Jadhav concerns an awarded passed by the Industrial Tribunal and, therefore, the observations of their Lordships will not apply to the instant case.
23. Shri Jadhav also relied upon the ruling of the Supreme Court in the case of K.L. Shinde v. State of Mysore, reported in : 3SCR913 , wherein their Lordships were placed observed :---
'Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings in which high degree of proof is required. It is true that in the instant case, reliance was placed by the Superintendent of Police on the earliest statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry of the impugned order of dismissal, as departmental proceedings are not by strict rules of evidence as contained in the Evidence Act.'
24. Keeping in mind the ratio laid down by the decisions of the highest Court, we shall now consider the submission made by Shri Bora, to the effect that there was no evidence whatsoever to support the finding that the petitioner had connived at the offence of acceptance of illegal gratification. In order to substantiate his submission, Shri Bora has taken us through certain portions of the evidence. Shri Bora referred to the evidence of the complainant Shivsing Pardeshi and pointed out that Shivsing had not stated in his complaint that at the time when P.C. Dongre made the demand for a bribe, the petitioner was present. Relying on this part of the evidence of the complaint, Shri Bora submitted that a demand was the first ingredient of the offence of acceptance of bribe and it was undisputed that at the time when P.C. Dongre made the demand for a bribe from the complainant Shivsing, the petitioner was not present. Therefore, at the initial stage the petitioner's presence was not proved. Shri Bora has further taken us through the evidence of the complaint Shivsing and stated that on the day on which P.C. Dongre made an appointment with the complainant for the acceptance of the bribe, the petitioner, was present. However, when the talk between Shivsing Rajput and P.C. Dongre took place, he was not present. According to Shri Bora this evidence would also indicate that the petitioner was at no time aware of the fact that Shivsing Rajput was about to pass the amount of Rs. 65/- as a bribe or that P.C. Dongre was going to accept that amount as bribe. Shri Bora submitted that if the petitioner was unaware of this fact, then he could not be found guilty of conniving at the offence of accepting illegal gratification. Shri Bora submitted that all that should be stated on the evidence was that the petitioner had taken the moneys from P.C. Dongre and kept them in his pocket and that later that amount was recovered from the pocket of the petitioner. Shri Bora contended that mere recovery of money was not sufficient to prove acceptance of bribe. He stated that other circumstances were necessary. In support of this submission, Shri Bora relied upon the ruling of the Supreme Court in the case of Hazari Lal v. The State Administration, reported in : 1980CriLJ564 wherein their Lordships observed :---
'In Suraj mal v. The State (Delhi Administration), also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money.'
25. In the instant case, the evidence is to the effect that the petitioner had accepted the amount of Rs. 65/- from P.C. Dongre and had kept the same in his shirt pocket. The charge with which he has been levelled is that this act on his part amounted to perverse conduct in that he had connived in the act of accepting illegal gratification. As we have pointed out earlier, there is no evidence at all on record to hold that the present petitioner had any knowledge or that he was at any time aware that Shivsing Rajput was about to hand over the amount of Rs. 65/- to P.C. Dongre as a bribe. If that knowledge had not been brought home to the petitioner, then we do not think that he could be charged with having connived at the offence of acceptance of illegal gratification. According to the Oxford Dictionary, one of the meanings of the word 'CONNIVE' is to conspire. For the offence of conspiring, it is necessary that the order should know the offence in respect of which he is conspiring with another. On the evidence which we have looked into, not for the purpose of re-assessing or re-evaluating the same, but only to find out whether there was anything to show that the petitioner was aware of the fact that the complainant was about to pass the amount of money as bribe to P.C. Dongre, we do not think that there is any such evidence on record. If that be so, then we do not think that it can be stated that the petitioner had connived at the offence of acceptance of illegal gratification. We find that this particular aspect has not been taken into consideration by the Superintendent of Police, Aurangabad in his order dated 31-1-1975. Therefore, in the words of their Lordships in the case of Union of India v. H.C. Goel, : (1964)ILLJ38SC , ' if there is no evidence to support the conclusion of the Enquiry Officer, the Writ of Certiorari will issue without proof of mala fides.' We are, therefore, of the opinion that the conclusion reached by the Superintendent of Police, Aurangabad in his order dated 31-1-1975 is untenable and perverse, inasmuch as there is no evidence to support his finding that the petitioner was aware of the fact that the amount given by Shivsing Rajput to P.C. Dongre was by way of a bribe. In these circumstances, the rule will have to be made absolute.
26. In the result, the rule made absolute. There will be a writ of certiorari quashing the order of removal of the petitioner from service passed by the Superintendent of Police. Aurangabad dated 31-1-1975, as also the order of the Deputy Inspector-General of Police, Aurangabad, dated 31-5-1979, as also the order of the Inspector-General of Police dated 30-6-1980 and of the Under Secretary to the Government of Maharashtra, Home Department, dated 18-12-1981. We direct that the petitioner be reinstated in service with back wages from the date of his suspension. There will be no order as to costs of this petition.