The General Manager Personnel ... vs B S N Prasad
2022 Latest Caselaw 9286 AP

     THE HONOURABLE SRI JUSTICE A V SESHA SAI
                       AND
THE HONOURABLE SRI JUSTICE DUPPALA VENKATA RAMANA

                WRIT APPEAL NO.632 of 2022

JUDGMENT:- (per Hon'ble Sri A.V. Sesha Sai, J)

     Heard Sri G.V.S.Kishore Kumar, learned counsel for the

appellants and Sri P.A.V.Padmanabham, learned counsel for

the respondent-writ petitioner, apart from perusing the entire

material available on record.

2. The respondents in W.P.No.40938 of 2014 are the

appellants in the present Writ Appeal, preferred under clause

15 of the Letters Patent. This appeal calls in question the order

passed by the learned single Judge in W.P.No.40938 of 2014

dated 15.06.2022. By way of the order impugned in the present

Writ Appeal, the learned single Judge allowed the Writ Petition,

setting aside the order of dismissal passed by the Disciplinary

Authority, as confirmed by the Appellant Authority, while

declaring that the writ petitioner would be entitled for all the

consequential benefits from the date of dismissal till the date of

attaining the age of superannuation, as the writ petitioner

already attained the age of superannuation. Pursuant to a

preliminary inquiry, the Disciplinary Authority issued a charge

sheet under Regulation No.6 of Syndicate Bank Officer

Employees' (Discipline & Appeal) Regulations, 1976 vide

Ref.NO.382/PD:IRD/DA-3 dated 17.10.2011.

3. A regular Inquiry Officer was appointed and after holding

the inquiry, the said Inquiry Officer submitted his report on

15.03.2012. Enclosing a copy of the Inquiry report, a show

cause notice came to be issued by the Disciplinary Authority on

20.03.2012. Responding to the same, Writ Petitioner-

respondent herein submitted his explanation on 18.04.2012.

Eventually, the Disciplinary Authority vide

REF.NO:458/PD:IRD/DA-6, dated 03.05.2012 passed an order,

inflicting on the Writ Petitioner the punishment of dismissal

from service under Regulation No.3.

4. Aggrieved by the aforesaid order of punishment passed by

the Disciplinary Authority, the respondent-Writ Petitioner filed

a Departmental Appeal before the Appellate Authority and the

Appellate Authority rejected the said appeal vide order dated

30.03.2013. Assailing the validity and legal sustainability of the

order of punishment passed by the Disciplinary Authority, as

confirmed by the Appellate Authority, the respondent herein by

invoking the provisions of Article 226 of Constitution of India,

approached this Court by way of filing the present

W.P.No.40938 of 2014.

5. On receipt of the notices from this Court, the respondent-

Bank filed a counter-affidavit and the petitioner herein also

filed a reply. The learned single Judge on consideration of the

material available on record, as mentioned supra, allowed the

Writ Petition. Hence, the present Letters Patent Appeal by the

respondents in the Writ Petition.

6. Sri G.V.S.Kishore Kumar, learned counsel for the

appellants contends that the order passed by the learned single

Judge is highly erroneous, contrary to law and opposed to the

settled principles of law. In elaboration, it is further contended

that in view of the seriousness of the allegations levelled against

the writ petitioner, by way of charge, the learned single Judge

erred in setting aside the order of punishment. It is further

contended by the learned counsel that, since the bank

authorities scrupulously adhered to the procedure stipulated

under the Regulations and also followed the principles of

natural justice by affording complete opportunity to the

delinquent, the learned single Judge ought to have dismissed

the Writ Petition. It is the further submission of the learned

counsel that mere acquittal in C.C.No.332 of 2012 by the Court

of the Additional Judicial Magistrate First Class, Kadiri, cannot

be a ground for interference with the action taken by the

Disciplinary Authority, pursuant to the departmental enquiry.

In support of his contentions and submissions, learned counsel

places reliance on the judgement of the Honorable Apex Court

in the case of State of Karnataka and Another vs. Umesh1

7. On the contrary, emphatically resisting the contentions of

the learned counsel for the appellants, Sri P.V.A.Padmanabham

learned counsel for the Writ Petitioner-respondent argues that,

having regard to the facts and circumstances of the case,

learned single Judge is perfectly justified in allowing the Writ

Petition. In elaboration, it is further contended by the learned

counsel that, since it is a case of no evidence at all, the learned

single Judge correctly interfered with the order of punishment.

It is also the submission of the learned counsel that the

authorities conducted the inquiry not only in deviation to the

Regulations, but also in violation of the principles of natural

justice. It is also the submission of the learned counsel that the

department utterly failed to prove the charge against the writ

petitioner and did not examine the individuals concerned. It is

further contended by the learned counsel that, simultaneously,

criminal prosecution was also launched against the writ

petitioner and the witness examined during the disciplinary

proceedings i.e., Preliminary Enquiry Officer, was also

(2022) 6 SCC 563

examined as P.W. 8 and the Court of Criminal jurisdiction

acquitted the writ petitioner of the charges.

8. It is further contended that neither the customers nor the

cashier, who alleged to have paid the amount, were examined

during the course of departmental proceedings. In support of

his submissions and contentions, the learned counsel for the

writ petitioner places reliance on the following judgments:

1. State of U P vs. Aditya Prasad Srivastava and Another2

2. Roop Singh Negi vs. Punjab National Bank and Others3

3. Sharaf Shah Khan and others vs. State of Andhra Pradesh4

4. United Bank of India vs. Biswanath Bhattacharjee5

9. In the above background, now the issues which this Court

is called upon to consider and answer in the present Letters

Patent Appeal are:

1. Whether the order passed by the learned single Judge,

which is impugned in the present Writ Appeal, is

sustainable and tenable?

2. Whether the order of punishment passed by the

Disciplinary Authority, as confirmed by the Appellate

Authority, having regard to the facts and

circumstances of the case, is sustainable and tenable?

2017 LawSuit(AII) 164

(2009) 2 SCC 570

AIR 1963 AP 314

2022 SCC OnLine SC 108

3. Whether this Court, in exercise of the jurisdiction

conferred under Article 226 of the Constitution of

India, is authorized to consider and adjudicate the

validity or otherwise of the orders of punishment?

10. The information available before this Court reveals that

preceded by the investigation conducted by the Preliminary

Inquiry Officer, the Disciplinary Authority issued a charge sheet

on 17.10.2011, framing the following Article of charge:

"That you were working as Branch Manager at Mudigubba branch during the period between 11.06.2007 and 03.11.2008 and while working as such, you abused your official position and made fictitious debits to crop insurance account narrating the credit to various SKCC accounts and fraudulently withdrew such amounts by debiting SKCC head without the knowledge of the borrowers; made fictitious debits/release under SKCC accounts and exceeded sanctioned limits in certain cases; obtained dishonestly additional withdrawal from certain customers and misused the same for withdrawing bank's funds unauthorisedly, sanctioned vehicle loans to a NPA borrower in violation of the Bank's guidelines; debited crop insurance premium, fraudulently, in collusion with Sri A Nagireddy and Sri M Ramakrishna and siphoned off Rs.70,000/-; misappropriated an amount of Rs.9,000/- received by the Branch under Debt Waiver Scheme to the SKCC

account of Sri D Nagaraju, thereby exposed the Bank to financial as well as legal risk. In the process, you committed various other irregularities and tarnished the fair image of the Bank.

The details of the above and the irregularities committed by you are more fully described in the Statement of Imputations of Misconduct on your part appended herebelow.

By your above acts, you failed to take all possible steps at all times to ensure and protect with utmost integrity, honesty, devotion and diligence and acted in a manner unbecoming of an officer employee and thereby contravened Reg.No.3(1) read with Regulation 24 of Syndicate Bank Officer Employees(Conduct), Regulations 1976."

11. Subsequently, a regular inquiry was conducted and the

Inquiry Officer appointed by the Disciplinary Authority

submitted report on 15.03.2012, holding that the charge

against the writ petitioner stood proved. In order to prove the

charge against the writ petitioner-respondent, the department

examined the Preliminary Inquiry Officer as sole witness and

filed Exhibits M1 to M89.

12. It is significant to note that except the Preliminary Inquiry

Officer, who acted as Presenting Officer during the course of

inquiry and who recorded the statements of cashier and

customers, no other witness was examined to prove the case of

the department. No plausible explanation or reason is also

forthcoming as to why the department failed to examine the

cashier and the customers, whose signatures are alleged to

have been forged by the writ petitioner. In fact, the said

customers were examined as PW 4 to 7 in C.C.No.332 of 2012

on the file of the Court of Additional Judicial Magistrate First

Class, Khadiri. It is also pertinent to note that the said Court of

Criminal jurisdiction cleanly acquitted the writ petitioner vide

judgment dated 01.07.2013. It is not at all the case of the

appellants that the said judgment is further carried in Appeal

before any Appellate Court. It is also not in dispute that the

evidence recorded in the said criminal case and the evidence

recorded during the departmental inquiry is substantially the

same.

13. According to the learned counsel for the respondent, since

the present case is a case of no evidence at all, the Disciplinary

Authority is not justified in inflicting the punishment of

dismissal from service. It is absolutely not in controversy that,

except the Preliminary Inquiry Officer, who recorded the

statements of the cashier and the customers, no other witness

was examined by the department in support of their stand. It is

also the contention of the learned counsel that mere filing of the

statements of the said individuals through witness would not be

sufficient to prove the guilt of the writ petitioner in the

departmental proceedings. In this context, it would be

appropriate to refer to the judgments cited by the learned

counsel for the respondents. In the case of State of U P vs.

Aditya Prasad Srivastava and Another (second cited supra),

after extensively referring to the judgments of the Hon'ble

Supreme Court, a Division Bench of High Court of Allahabad

(Lucknow Bench) held that the initial burden is on the

department to prove the charges where enquiry is initiated with

a view to inflict major penalty and, the department is required

to prove the charges by adducing evidence, by holding oral

enquiry. Para Nos.5, 7, 8, 9, 10, 11, 14 of the said judgment

read as follows:

"[5] However, from charge sheet (page 59 of paper book) we find that documents which were relied in support of charges included some preliminary inquiry report and other documents of concerned society. In respect of charge no.6 a complaint made by employees was also one of the document relied in support of charge. Aforesaid preliminary inquiry report and complaint etc. could not have been treated to be a valid evidence admissible even in departmental inquiry unless author of aforesaid documents are examined and delinquent employee is given opportunity to cross-examine the same. It cannot be said that in every case where documents are relied,

oral inquiry is not to be conducted. It is settled that unless contents of a document which is not admitted, are proved by the author, who is examined before the inquiry officer and is available for cross examination by the delinquent employee, such document cannot be deemed to be proved and therefore such document cannot be relied to hold a delinquent employee guilty therefore such document cannot be relied to hold a delinquent employee guilty and to impose punishment upon him. We are fortified in taking this view by Apex Court's judgment in M/s Bareilly Electricity Supply Co.

Ltd., Vs. The Workmen and others, 1972 AIR(SC) 330 where court in para 14 of the judgment has observed as under:

"But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries made therein. If a

letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be field and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt."

[7] In State of Uttar Pradesh Vs. Saroj Kumar Sinha, 2010 2 SCC 772, Court has held;-

"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined into consideration to conclude that the charges have been proved against the respondents." "when a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

[8] Similar view was taken in Roop Singh Negi v. Punjab National Bank 2009 2 SCC 570 where Court said:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witness merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

[9] This Court also has taken same view earlier in Subhash Chandra Sharma Vs. Managing director. U.P.Co-op. Spinning Mills Federation Ltd., Kanpur and another 2000 1 UPLBEC 541 and said:-

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witness against him and also he should have

been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clear violative of natural justice."

"In Meenglas Tea Estate v. The workmen. 1963 AIR(SC) 1719, the Supreme Court observed "it is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement

must be substantially fulfilled before the result of the enquiry can be accepted."

In S.C.Girotra v. United Commercial Bank 1995 Supp3 SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of corss-examination. In State of U.P.v. C.S.Sharma, 1968 AIR(SC) 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross- examine these witnesses and to lead evidence in his defence. In Punjab National Bank v.

A.I.P.N.B.E.Federation 1960 AIR(SC) 160, (vide para

66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportu;nity to rebut the said evidence. The same view was taken in A.C.C.Ltd. v. Their Workmen, 1963 2 LLJ 396, and in Tata Oil Mills Co.Ltd. v. Their Workmen, 1963 2 LLJ 78 (SC).

Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, 1962 AIR(SC) 1348, Uma Shankar v. Registrar, 1992 65 FLR 674 (AII)."

[10] The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others 2001 2 UPLBEC 1475 wherein Court held:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, 2000 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000."

[11] This Court in Rajesh Prasad Mishra v.

Commissioner. Jhansi Division, Jhansi and other, 2011 1 UPLBEC 216, after a detailed analysis of earlier precedents on the subject, observed as under:

"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges area not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs.

T.P.Lal Srivastava 1997 1 LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 1 UPLBEC 541.

The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 3 ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment."

[14] Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co- operative Bank Ltd. Vs. Raghunath Singh Rana and others 2016 AIR(SC) 2510 and Court has culled out certain principles as under:

i. "The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. ii. If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry officer, during the enquiry, steps should be taken to see

that the task of holding an enquiry is assigned to some other officer.

iii. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and given an opportunity to him to cross- examine the Witness of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

iv. On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."

14. In the case of Roop Singh Negi vs. Punjab National

Bank and Others (third cited supra), the Hon'ble Supreme

Court at Para Nos.14 and 23 held thus:

"14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The Enquiry Officer performs a quasi-

judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the

parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence."

"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding 17 but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

15. In the case of Sharaf Shah Khan and others vs. State

of Andhra Pradesh (fourth cited supra), the composite High

Court of Andhra Pradesh at Para No.9 held in the following

manner:

"On the second point, we have compared Ex. P-2 with the copy of the translation of the statement made during the investigation furnished to us and find, that they differ in a number of particulars. To begin with, the narrative of the dacoities in the statement during the investigation commences from dacoity No.3, while Ex. P-2 and the evidence at the trial mentions three earlier meetings of the accused and events connected with dacoities Nos.1 and 2. There are also numerous discrepancies with reference to the details of the parts played by the different accused, from dacoity No. 3 onwards. In our opinion, the contention that Ex. P-2 served as an adequate substitute for the earlier statement is untenable. The decision in Gurbachan Singh v. State of Punjab, (G) AIR 1957 SC 623 was based on the peculiar facts there that the defence were at fault in not asking for copies of the earlier statements and that there were be discrepancies between the earlier statements and the evidence at the trail. We have to deal with a different situation here and the following observations of the Judicial Committee with, reference to Section 162 of the Cr Pc in Pulukuri Kotayya v. Emperor, ILR (1948) Mad 1 at pp. 9-10: (AIR 1947 PC 67 at p. 69) are opposite:-

"The right given to an accused person by this Section is very valuable one and often provides important material for cross-examination may seem to be, it is

difficult to cause its possible effect. Minor in consistencies in his several statements may not embarrass a truthful witness but may cause an untruthful witness to pervaricaate and may lead to the ultimate break-down of the whole of his evidence.........."

The rule of common law is stated in Halsburry's Laws of England, 3rd edition, Volume 15 (1956) at page 443 thus: -

"......No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross- examination."

Here the opportunity of cross-examination was illegally restricted to the prejudice of the defence and we must hold, in the circumstances, that the approver's evidence is inadmissible in favour of the prosecution."

16. In the case of United Bank of India vs. Biswanath

Bhattacharjee (fifth cited supra), the composite High Court of

Andhra Pradesh at para Nos.16 to 20 held as follows:

"16. In one of the earliest decisions of Union of India v. H.C. Goel relating to departmental proceedings, this court observed that where a public servant is punished for misconduct after a departmental enquiry is conducted, a clear case where interference under Article 226 of the Constitution is warranted is when there is no evidence to establish the official's guilt.

"22.... The two infirmities are separate and distinct though, conceivably, 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. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.

23. That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondent's case is, is there any evidence on which a finding can be made against the

respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well founded, because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that Charge 3 is proved against him is based on no evidence."

17. Apart from cases of "no evidence", this court has also indicated that judicial review can be resorted to. However, the scope of judicial review in such cases is limited . In B.C. Chaturvedi v. Union of India a three-judge bench of this court ruled that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the

court. The court/tribunal in its power of judicial review does not act as an appellate authority; it does not re-appreciate the evidence. The court held that:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings

against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

18. Other decisions have ruled that being a proceeding before a domestic tribunal, strict rules of evidence, or adherence to the provisions of the Evidence Act, 1872 are inessential. However, the procedure has to be fair and reasonable, and the charged employee has to be given

reasonable opportunity to defend himself (ref: Bank of India v. Degala Suryanarayana a decision followed later in Punjab & Sind Bank v. Daya Singh). In Moni Shankar v. Union of India this court outlined what judicial review entails in respect of orders made by disciplinary authorities:

"17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere."

19.This court struck a similar note, in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya , where it was observed that:

"If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record".

20. The bank is correct, when it contends that an appellate review of the materials and findings cannot ordinarily be undertaken, in proceedings under Article 226 of the Constitution. Yet, from H.C. Goel onwards, this court has consistently ruled that where the findings of the disciplinary authority are not based on evidence, or based on a consideration of irrelevant material, or ignoring relevant material, are mala fide, or where the findings are perverse or such that they could not have been rendered by any reasonable person placed in like circumstances, the remedies under Article 226 of the Constitution are available, and intervention, warranted. For any court to ascertain if any findings were beyond the record (i.e., no evidence) or based on any irrelevant or extraneous factors, or by ignoring material evidence, necessarily some amount of scrutiny is necessary. A finding of "no evidence" or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority.

However, the margin of appreciation of the court under Article 226 of the Constitution would be different; it is not appellate in character."

17. Coming to the judgment cited by the learned counsel for

the Writ Appellant in the case of State of Karnataka and

Another vs. Umesh (first cited supra) the Hon'ble Supreme

Court, while dealing with the parameters for exercising the

power of judicial review, at Para No.22 held as follows:

"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

(i) the rules of natural justice have been complied with;

(ii) the finding of misconduct is based on some evidence;

(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity; and

(v) the penalty is disproportionate to the proven misconduct."

18. In the instant case, as observed supra, though the

Preliminary Inquiry Officer, who was examined as sole witness

during the department proceedings, recorded the statements of

the cashier and the customers, the department, during the

course of the inquiry, did not choose to examine the said

individuals for proving its case.

19. Having regard to the principles laid down in the aforesaid

judgments cited by the learned counsel for the respondents,

mere filing of the statements of the cashier and the customers,

which formed the basis for the department to hold inquiry, is

not sufficient to prove the guilt of the respondent-writ petitioner

and non-examination of such individuals is fatal to the case of

the department. It is also significant to note that, as per the

judgment of the Hon'ble Apex Court in the case of State of

Karnataka and Another vs. Umesh (first cited supra), the

exercise of power of judicial review is permissible when there is

violation of the principles of natural justice and when the

findings are based on no evidence at all. In the considered

opinion of this Court, the case on hand would undoubtedly fall

under the contingencies of (i) and (ii) of Para No.22 of the said

judgment.

20. Coming to the order, which is impugned in the present

Writ Appeal, the learned single Judge recorded a categorical

finding that the inquiry was not conducted in a proper manner

and in the absence of any evidence, the Disciplinary Authority

was not justified in inflicting the punishment. The learned

Judge also took into consideration the acquittal of the

respondent-writ petitioner in C.C.No.332 of 2012. It is also

required to be noted that the sole witness, who was examined

during the course of the departmental enquiry, was also be

examined as P.W. 8 in the criminal prosecution. The facts and

circumstances of the case and the principles of law, referred to

supra, drive this Court towards an irresistible conclusion that

the present case is a case of no evidence at all. In the absence of

any infirmity or error, this Court is not inclined to interfere with

the order passed by the learned single Judge.

21. Accordingly, the Writ Appeal is dismissed. There shall be

no order as to costs.

As a sequel, the miscellaneous applications pending, if

any, shall stand closed.

__________________________ JUSTICE A V SESHA SAI

_______________________________________ JUSTICE DUPPALA VENKATA RAMANA

Date: 05.12.2022 VTS

THE HONOURABLE SRI JUSTICE A V SESHA SAI AND THE HONOURABLE SRI JUSTICE DUPPALA VENKATA RAMANA

WRIT APPEAL NO.632 of 2022

05.12.2022

VTS