IMPORTANT POINT
While exercising power of judicial review, High Court cannot act like a Court of appeal and re-appreciate the evidence.

Judgment :-

R.M. Lodha, J.

Leave granted.

1.2. The question that this Court is called upon to determine in this appeal by special leave is: whether the High Court was justified in quashing the order dated November 24, 2003, whereby the respondent No. 1 was dismissed from service?

2.3. Man Mohan Nath Sinha , respondent No.1, was posted as Private Secretary (Class II) to the then State Minister, Minor Irrigation, Shri Ram Asrey Paswan, where he worked from November 18, 1997 to April 24, 1999. He is said to have misappropriated the government money while he was attached as Private Secretary to the then State Minister. The Vigilance Department after holding an enquiry against respondent No.1 sought his prosecution under Sections 408, 409, 420, IPC, as well as under Sections 13

(1) (b) read with 13 (2) of the Prevention of Corruption Act, 1988. On October 9, 2001, the respondent No.1 was placed under suspension. The disciplinary proceedings were also initiated against him and he was served with the chargesheet on October 19, 2001. The principal charge against the respondent No.1 was that while being attached as a Private Secretary to the State Minister, Minor Irrigation, he took undue advantage of the ignorance and disability of the Minister and acted in violation of his duties as a Private Secretary by drawing a total of Rs. 37,00,304/-from the State Ministers Saving Bank Account No. 8002, State Bank of India, Secretariat Branch, Lucknow, and out of the amount so withdrawn, an amount of Rs.21,32,011/-was deposited by the delinquent in his own Saving Bank Account No. 8861 in the same bank. It was alleged in the charge that the State Minster received an amount of Rs.12,00,000/-on different dates; payment for petrol etc. to the tune of Rs.3,68,293/-was also made by the delinquent and the remaining amount was misappropriated. The second charge against the respondent No.1 was that being a senior public servant, he obtained undue advantage and by adopting criminal means and acting in contravention of the duties of the Private Secretary, he breached the Code of Conduct prescribed for Private Secretaries in Para 266 of the Sachivalaya Niyam Sangrah, Uttar Pradesh Shashan.

1.4. The delinquent denied the charges and put forth his version in his reply. The Inquiry Officer after recording the evidence, submitted his report on December 12, 2002. The Inquiry Officer recorded a finding that in his capacity as Private Secretary to the then State Minister, the delinquent took undue advantage, acted contrary to the duties and responsibilities of Private Secretary and he perpetrated fraud and deceit upon the State Minister for unlawful gains to himself. The Inquiry Officer found that the delinquent had misappropriated a portion of the amount so withdrawn from the Saving Bank account of the State Minister.

2.5. A copy of the enquiry report was furnished to the delinquent and after giving him a show cause notice, the Competent Authority passed an order on November 24, 2003, dismissing the respondent No.1 from service.

3.6. The respondent No.1 challenged the order of dismissal before the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow.

4.7. The Division Bench by its order dated May 23, 2008, set aside the order of dismissal dated November 24, 2003. The impugned order passed by the Division Bench depicts that it proceeded to consider the controversy by framing two questions namely; (one) whether in view of the evidence on record, two charges leveled against the delinquent stood proved and (two) whether in view of the findings recorded by the Inquiry Officer which have been accepted by the Disciplinary Authority/Appointing Authority, any punishment could have been awarded to the delinquent, much less any major punishment of dismissal from service. The formulation of first question and the discussion that has followed in the impugned judgment suggests that the Division Bench attempted to appreciate the evidence which was produced before the I