Calcutta High Court (Appellete Side)
Sri Murari Sarkar vs Union Of India & Ors on 16 April, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE.
W.P.A. 21237 OF 2010
SRI MURARI SARKAR
VS.
UNION OF INDIA & ORS.
For the petitioner :: Mr. Durgadas Purokayastha,
Mr. Jiban Hari Mallick,
Mr. Sagar Chowdhury
.... Advocates
For the Respondents : Mr. M. V. Viswanathan,
Mr. S.N. Bera,
Ms. Tanwi De
..... Advocates
Heard on : 05.09.2018, 18.09.2018, 28.09.2018,
18.11.2019 and 24.02.2021.
Judgment on : 16th April, 2021
Arindam Mukherjee, J.:
1) The writ petitioner, Murari Sarkar has in this writ petition challenged
the final order dated 27th June, 2009 passed by the Executive
Director & the Appellate Authority in an appeal preferred by the writ
petitioner under the provisions of the Bank of Baroda Officer
W.P.A. 21237 OF 2010
Employees' (Discipline & Appeal) Regulations 1976 (hereinafter
referred to as the said regulation). The appeal was filed challenging
the order of the Disciplinary Authority dated 31st March, 2009. In
appeal the order of the Disciplinary Authority was partially modified.
2) The facts leading to the passing of the Appellate order as against the
writ petitioner are as follows:-
(a) Murari Sarkar, the writ petitioner while working as Junior
Manager GR-I at Bank of Baroda (hereinafter referred to as the
said bank ) and posted at its Burrabazar Branch was served
with a suspension order on 27th March, 2008 in contemplation
of a disciplinary proceeding under the provisions of the said
regulation. The suspension was with immediate effect.
(b) Thereafter on 5th May, 2008 the Deputy General Manager-
in-Charge of the Zone of the Bank of Baroda issued a show
cause letter containing four (4) allegations to be replied within
seven days from date of receipt thereof. This letter was replied
by the writ petitioner denying all four allegations. The
Disciplinary Authority, however, was not satisfied with the reply
of the writ petitioner and as such a disciplinary proceeding was
initiated against Mr. Sarkar by issuance of Memorandum on
25th August, 2008 accompanied by a Statement of Allegations
and Articles of Charge. Four allegations and five articles of
charges were framed against the writ petitioner in the letter
dated 25th August, 2008. The writ petitioner replied to the same
by his letter dated 17th September, 2008.
Page 2 of 31
W.P.A. 21237 OF 2010
(c) Mr. Prabhat Kumar Chatterjee, Senior Manager, ARM
Branch of the said bank was appointed as the Inquiry Officer.
The Inquiry Officer had set up a preliminary enquiry at 11 a.m.
on 27th September, 2008 for appearance and hearing of the
petitioner. At the preliminary hearing the writ petitioner denied
all the allegations levelled against him and rejected the articles
of charges framed which resulted in a full-fledged departmental
enquiry proceedings.
(d) On behalf of the bank, Sri T.K. Biswas was appointed as
the Presenting Officer (in short P.O.). The said P.O. in the
departmental enquiry submitted the documents on which the
bank relied upon along with the list of witnesses. The writ
petitioner appointed Tridibesh Prasad Nanda, a manager in the
said bank as the Defence Representative (in short D.R.) to
represent the petitioner at the departmental enquiry.
(e) In course of the inquiry six witnesses - Surajit Roy,
Somnath Sen, Narendra Nath Dave, Subrata Chatterjee, Amit
Das and Rabindra Nath Chatterjee were examined on behalf of
the bank and cross-examined by DR on behalf of the writ
petitioner. The witnesses were all employees of the bank who
had worked or were working with the writ petitioner till his
suspension in different branches of the said bank. The writ
petitioner also got himself examined and filed his written
submission.
Page 3 of 31
W.P.A. 21237 OF 2010
(f) The Inquiry Officer submitted his report on 29th January,
2009 holding that the four allegations of the charges have been
proved against the writ petitioner.
(g) On 31st March, 2009 the Disciplinary Authority issued an
order of dismissal from service against the petitioner, the
operative part whereof is as under;
ORDER
In exercise of powers conferred upon me by sub-Regulation
5(3) read with Regulations 4 and 7 of Bank of Baroda Officer
Employees' (Discipline and appeal) Regulations 1976, hereby
order as follows:
"MR. MURARI SARKAR IS HEREBY DISMISSED FROM
SERVICE OF THE BANK, WHICH SHALL ORDINARILY BE A
DISQUALIFICATION FOR FUTURE EMPLOYMENT WITH
EFFECT FROM THE DATE OF RECEIPT OF THIS ORDER."
FURTHER, THE SUSPENSION PERIOD OF MR. MURARI
SARKAR TO BE TREATED AS PERIOD NOT SPENT ON DUTY
AND HE WILL NOT BE ELIGIBLE FOR ANY BENEFITS DUE
DURING THE SUSPENSION PERIOD.
The said order was partially modified by the Appellate Authority on
27th June, 2009, the operative part whereof is as follows:-
DECISION ON APPEAL
W.P.A. 21237 OF 2010
Accordingly, in exercise of powers conferred upon me under
Regulation 17 (ii) of Bank of Baroda Officer Employees'
(Discipline & Appeal) Regulation 1976, the penalty of "Dismissal
from Bank's service which shall ordinarily be a disqualification
for future employment" imposed by Disciplinary Authority on
Mr. Murari Sarkar is hereby modified to. "Removal from Bank's
service which shall not ordinarily be disqualification for future
employment".
Further, there is no change in the treatment of period of
suspension and it shall be treated as period not spent on duty.
The order will be effective from the date of order of the
Disciplinary Authority i.e. 31.03.2009.
3) Submission of the Writ Petitioner
(i) The petitioner has alleged that neither the statement of
allegations nor the articles of charges clearly specify as to the
amount allegedly misappropriated by the petitioner. No
complaint is there from any account holder about defalcation. In
such circumstances the very basis of the formation of charges
are vague. The petitioner alleges to have been victimized. The
preliminary enquiry, according to the writ petitioner was
conducted in a routine manner with the only intent to show
compliance of natural justice. The letter proposing to hold
disciplinary proceedings and the articles of charge, according to
W.P.A. 21237 OF 2010
the petitioner has been framed mechanically, arbitrarily, illegally
and without authority.
(ii) The petitioner has also contended that as per rule 5(1) the
Managing Director of the Bank is the sole authority to decide to
institute any disciplinary proceedings and imposition of penalty
against an officer-employee of the Bank. In absence of any such
authority/direction, passed by the Managing Director of the
Bank empowering the General Manager or Deputy General
Manager by general or special order to institute a disciplinary
proceedings in accordance with the rule 5 of the said regulation,
the actions of the Deputy General Manager in respect of issuing
show cause to initiate disciplinary action by the letter dated 5th
May, 2008 and actions of the General Manager in issuing the
memorandum of charge sheet vide order dated 25th August,
2008 are illegal, arbitrary, without jurisdiction and authority
under law.
(iii) The petitioner further says that the allegations as against the
petitioner are that of irregularities and not of illegality. The
transactions complained of were not mala fide or done with mal-
intention. The transactions were done with the approval of the
account holder who had become friendly with the petitioner.
The petitioner also alleges that the letter of admission relied
upon by the bank as against the petitioner is tainted with fraud
committed by the Branch Manager who induced the petitioner to
sign such letter. The petitioner says to be not bound by such
W.P.A. 21237 OF 2010
admission. To support his contention, the petitioner refers to a
Single Bench judgement and order of this Court dated 27th July,
2005 passed in W.P. No. 15110 (W) of 2004, Samarendra Nath
Roy v. Chairman, Eastern & N.P. Railway Cooperative Bank
Ltd. & Ors.
(iv) The disciplinary proceedings according to the petitioner began
with the issuance of charge-sheet and ended with the imposition
of penalty by the Disciplinary Authority. At every stage the
Disciplinary Authority was to ensure compliance of natural
justice which was violated in the petitioner's case right from the
beginning when the petitioner was denied the opportunity to
appoint D.R. at the preliminary enquiry which was fixed
hurriedly to cause in convenience to the petitioner. The
departmental enquiry was also conducted in a hurried manner
denying the petitioner proper opportunity to represent his case.
The preliminary enquiry according to the petitioner should not
have been proceeded with before finalisation of the list of
prosecution witnesses. The list of witnesses from the bank's
side ought to have been forwarded with the memo of charges. No
report as to the findings of the preliminary enquiry was provided
to the petitioner.
(v) The Inquiry Officer by allowing the P.O. to examine witness and
getting documents marked as Exhibit through them without
there being a list of witnesses had exceeded his jurisdiction as
also violated the principles of natural justice.
W.P.A. 21237 OF 2010
(vi) The Disciplinary Authority according to the petitioner
mechanically accepted the finding of the Inquiry Officer which
was based on wrong premise without independent application of
mind. The Disciplinary Authority, therefor, has acted wrongfully,
arbitrarily and illegally. The order of the Disciplinary Authority
was liable to be and should have been set aside. The Appellate
Authority according to the petitioner committed the same error
by simply concurring with the findings of the Disciplinary
Authority without himself applying his independent judicial
mind. The order of the Appellate Authority is, therefor, also
liable to be and should be quashed and/or set aside. In this
context, the petitioner has relied upon two judgements reported
respectively in A. L. Kalra v. Project and Equipment
Corporation of India Ltd., (AIR 1984 SC 1361)(Para 13, 22,
26) and Ranjit Thakur v. Union of India and Others (1987 4
SCC 611)
4) Submission of the Respondents
a) The respondents refute the petitioner's allegation that the
particulars of transactions and amount were not mentioned in
the statement and charge-sheet dated 25th August, 2008. The
respondents say that the petitioner in his reply to the aforesaid
memo dated 17th September, 2008 did not deny any of the
allegations or charge but on the contrary admitted to have not
followed the bank's rules in operating the CBS transactions. This
in effect according to the respondents amount to admission of the
W.P.A. 21237 OF 2010
allegations. The respondents, therefore, say that it is too late in
the day for the petitioner to allege that the statement of allegation
and the articles of charges are devoid of particular. According to
the respondents in actuality the memo dated 25th August, 2008
clearly and specifically delineated the allegation.
b) The respondents also denied the petitioner's allegation that
neither the Deputy General Manager nor the General Manager
was authorised to institute the disciplinary proceedings and
impose penalty as against the petitioner being an officer-
employee of the said Bank without prior approval of the
Managing Director of the Bank under the provisions of Rule 5(1)
of the said regulations. The respondents say that issuance of the
memo dated 25th August, 2008 by the Deputy General Manager
in charge of the zone is permissible as under the scope of
regulations 5(1) and 5(3) of the said regulations and thus the
penalty imposed is not void and/or nullity or mala fide which is
liable to be set aside.
c) The respondents contend that the petitioner's allegations with
regard to the show cause notice dated 5th May, 2008 gets
completely wiped off from the petitioner's reply thereto dated 7th
July, 2008. The admission in writing made by the petitioner on
29th March, 2008 despite being alleged to be obtained by fraud at
a subsequent stage remains firmly anchored in view of the reply
dated 7th July, 2008 wherein the petitioner says "That at the
instance of the account holders respectively related with the said
W.P.A. 21237 OF 2010
accounts the transaction/banking transaction made and done
with the consent approval and desire of the account holder not
for my personal benefit..."
That the transactions were made by the petitioner instead of
being denied is rather admitted. The petitioner only intends to
justify his conduct with regard to such transactions admitted
done by a petitioner.
d) The respondents further submit that the petitioner even in his
appeal admitted his fault and merely prayed for changing the
punishment of dismissal to any other sort of demotion but did
not challenge the enquiry proceedings or the findings of the
Disciplinary Authority as sought to be done in the writ petition.
The respondent contends that such deliberate omissions on
multiple opportunities available to the petitioner to refute the
allegations as to the mala fide intentions on the part of the
respondents and/or violation of principles of natural justice as
sought to be done only in the writ petition disentitles the
petitioner to challenge the order passed in the disciplinary
proceedings on such ground. There was no mala fide intention
on the part of the respondents or violation of principles of natural
justice.
e) The respondents further contend that the allegation of violation of
principles of natural justice that the petitioner was denied an
opportunity of representation at the hearing are not only baseless
W.P.A. 21237 OF 2010
and incorrect but also without any iota of truth. A proper inquiry
was conducted following the procedure as laid down in the said
regulations. It is also an admitted position that the disciplinary
authority had appointed the Inquiry Officer who allowed the
petitioner to finalise the selection of his Defence Representative
(D.R.) in terms of Regulation 8(2) of the said regulations. Even
when the petitioner did not select his D.R. nor communicated his
name to the Inquiry Officer before the commencement of the
preliminary hearing a further opportunity was given when the
petitioner appointed a D.R. These facts are also apparent from
the writ petition, according to the respondents.
f) The respondents further contend that there is no substance in
the petitioner's allegations as to non-examination of witnesses
and improper procedure of enquiry proceedings. The said
regulations were followed and principle of natural justice was
complied with. The petitioner was furnished with a list of
witnesses the documents intended to be relied upon by the said
bank. The petitioner was allowed to cross-examine each of the
bank's witness. Neither was the petitioner deprived of an
opportunity to cross-examine the witnesses, nor did the Inquiry
Officer examine and record anything outside the documents or
beyond what was deposed. Moreover both the DR and the
petitioner were present at all stages of the said proceedings but
did not raise any objection to the procedure being followed at the
enquiry stage. The Inquiry Officer as also the D.R. were allowed
W.P.A. 21237 OF 2010
to submit their respective written arguments at the end of the
hearing. Equal opportunity was therefor, given to the petitioner of
being heard adhering to the principles of natural justice.
g) The respondents also contend that the petitioner has not been
able to show as to how the Disciplinary Authority and/or the
Appellate Authority did not apply their mind independently
and/or had any mala fide intentions to impose penalty upon the
petitioner at any stage of the proceedings. The penalty imposed
was based on multiple unexplained admissions of the petitioner
at various stages of disciplinary proceedings. The petitioner had
in fact admitted misappropriation of funds which amounts to
breach of trust as against the petitioner and loss of faith on an
officer in public employment. The petitioner according to the
respondents though has made hue and cry as to fraud but have
miserably failed to either make out a case of fraud based on
particulars or otherwise. The conduct of the petitioner, according
to the respondents on the other had buried the allegation of
fraud. Thus, the penalty imposed is not void and/or nullity or
mala fide or liable to be set aside.
5) Before adverting to the case at hand, I think it will be beneficial to
consider the scope of judicial review in matters of Departmental
Enquiry. A plethora of judgments have now settled the ambit and
scope of Judicial Review in departmental enquiry proceedings taking
into account the Forty-Second Amendment of the Constitution.
W.P.A. 21237 OF 2010
(i) In Khem Chand vs. Union of India reported in AIR 1958 SC
300 being one of the earliest decisions wherein judicial review
in respect of a departmental enquiry fell for scrutiny of the
Hon'ble supreme Court two questions squarely fell for
consideration viz., what is meant by the expression "reasonable
opportunity of showing cause against the action proposed" and
at what stage the notice against the proposed punishment was
to be served on the delinquent employee.
The Hon'ble Supreme Court answered as -
"(a) An opportunity to deny his guilt and establish his innocence,
which he can only do if he is told what the charges levelled
against him are and the allegations on which such charges are
based;
(b) an opportunity to defend himself by cross-examining the
witnesses produced against him and by examining himself or any
other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the
proposed punishment should not be inflicted on him, which he
can only do if the competent authority, after the inquiry is over
and after applying his mind to the gravity or otherwise of the
charges proved against the government servant tentatively
proposes to inflict one of the three punishments and
communicates the same to the government servant ....".
(ii) In A. N. D'Silva Vs. Union of India reported in AIR 1962 SC
1130 it was ".....held that the question of imposing punishment can
only arise after inquiry is made and the report of the enquiry officer
is received. It is for the punishing authority to propose the
punishment and not for the inquiring authority to do so. The latter
W.P.A. 21237 OF 2010
has, when so required, to appraise the evidence, to record its
conclusion and if it thinks proper to suggest the appropriate
punishment. But neither the conclusion on the evidence nor the
punishment which the inquiring authority may regard as
appropriate, is binding upon the punishing authority...".
(iii) In Union of India Vs. H.C. Goel reported in AIR 1964 SC 364 it
was held that the employee "....must have a clear notice of the
charge which he is called upon to meet before the departmental
inquiry commences and after he gets a notice and is given the
opportunity to offer his explanation, the inquiry must be conducted
according to the rules and consistently with the requirements of
natural justice. At the end of the inquiry, the enquiry officer
appreciates the evidence, records his conclusions and submits his
report to the Government concerned. That is the first stage of the
inquiry. After the report is received by the Government, the
Government is entitled to consider the report and the evidence laid
against the delinquent public servant. The Government may agree
with the report or may differ, either wholly or partially, from the
conclusions recorded in the report. If the report makes a finding in
favour of the public servant and the Government agrees with the
said finding, nothing more remains to be done and the public
servant who may have been suspended is entitled to be reinstated
with consequential reliefs. If the report makes findings in favour of
the public servant and the Government disagrees with the said
W.P.A. 21237 OF 2010
findings and holds that the charges framed against the public
servant are prima facie proved, the Government should decide
provisionally what punishment should be imposed on the public
servant and proceed to issue a second notice against him in that
behalf. If the enquiry officer makes findings, some of which are in
favour of the public servant and some against him, the Government
is entitled to consider the whole matter and if it holds that some or
all the charges framed against the public servant are, in its opinion,
prima facie established against him, then also the Government has
to decide provisionally what punishment should be imposed on the
public servant and give him notice accordingly.....".
The Hon'ble Supreme Court thereafter discussed the object of the
inquiry and role of the Inquiry Officer in greater details to find out
whether the Government is acting mala fide. It was also held that in
exercising jurisdiction under Article 226, the High Court cannot
consider the question about the sufficiency or adequacy of evidence
in support of a particular conclusion but can and must enquire
whether there is any evidence at all in support of the impugned
conclusion.
(iv) In Central Bank of India Vs. Om Prakash Gupta reported in
1969 (3) SCC 775 it was held that on the basis of the delinquents'
own admissions, the only reasonable conclusion any responsible
person would have come to is that the delinquent is unworthy of
holding any responsible post - any minor irregularities in the
W.P.A. 21237 OF 2010
matter of conducting the enquiry cannot vitiate a finding which is
so obviously correct. It was further held reasonable opportunity
means ".....(i) opportunity to the concerned officer to deny his guilt
and establish his innocence which means he must be told what the
charges against him are and the allegations on which such charges
are based; (ii) he must be given reasonable opportunity to cross-
examine the witnesses produced against him and examine himself
or other witnesses on his behalf; and (iii) he must be given
opportunity to show cause that the proposed punishment would not
be proper punishment to inflict which means that the tentative
determination of the competent authority to inflict one of the three
punishments must be communicated to him".
(v) In the judgment reported in, 2006 (4) SCC 713) Narinder Mohan
Arya vs. United Insurance Co. Ltd & Ors., also in 2009 (2) SCC
570 Roop Singh Negi vs. PNB, it was well settled that in a suit
filed by a delinquent employee in a Civil Court as also a Writ
Court, in the event the findings arrived at in the departmental
proceedings are questioned before it, it should keep in mind the
following: (1) the Inquiry Officer is not permitted to collect any
material from outside sources during the conduct of the enquiry.
(See State of Assam v. Mahendra Kumar Das [(1970) 1 SCC
709 : AIR 1970 SC 1255]) (2) In a domestic enquiry fairness in
the procedure is a part of the principles of natural justice.
(See Khem Chand (Supra) and Om Prakash Gupta (Supra)
W.P.A. 21237 OF 2010
(3) Exercise of discretionary power involves two elements--(i)
objective, and (ii) subjective and existence of the exercise of an
objective element is a condition precedent for exercise of the
subjective element. (See K.L. Tripathi v. State Bank of
India [(1984) 1 SCC 43 : 1984 SCC (L&S) 62 : AIR 1984 SC
273]) (4) It is not possible to lay down any rigid rules of the
principles of natural justice which depend on the facts and
circumstances of each case but the concept of fair play in action is
the basis. (See Sawai Singh v. State of Rajasthan [(1986) 3
SCC 454 : 1986 SCC (L&S) 662 : AIR 1986 SC 995]) (5) The
Inquiry officer is not permitted to travel beyond the charges and
any punishment imposed on the basis of a finding which was not
the subject-matter of the charges is wholly illegal. (See Director
(Inspection & Quality Control) Export Inspection Council of
India v. Kalyan Kumar Mitra [(1987) 2 Cal LJ 344]) (6)
Suspicion or presumption cannot take the place of proof even in a
domestic enquiry. The writ court is entitled to interfere with the
findings of the fact of any tribunal or authority in certain
circumstances. (See Central Bank of India Ltd. v. Prakash
Chand Jain [(1969) 1 SCR 735: AIR 1969 SC 983] , Kuldeep
Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S)
429] )
(vi) Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1
SCC (L&S) 554 : 2014 SCC OnLine SC 917 at page 617
W.P.A. 21237 OF 2010
"In one of the earliest decisions in State of A.P. v. S. Sree Rama
Rao [AIR 1963 SC 1723], many of the above principles have been
discussed and it has been concluded thus:
7. ... The High Court is not constituted in a proceeding under
Article 226 of the Constitution as a Court of appeal over the
decision of the authorities holding a departmental enquiry against
a public servant: it 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. Where there is some evidence,
which the authority entrusted with the duty to hold the enquiry
has accepted and which evidence may reasonably support the
conclusion that the delinquent officer is guilty of the charge, it is
not the function of the High Court in a petition for a writ under
Article 226 to review the evidence and to arrive at an independent
finding on the evidence. The High Court may undoubtedly 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 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
W.P.A. 21237 OF 2010
that conclusion, or on similar grounds. But the departmental
authorities are, if the enquiry is otherwise properly held, the sole
judges of facts and if there be some legal evidence on which their
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 of the
Constitution."
Also in Para 13 as reported in Union of India v. P. Gunasekaran
(Supra) this Court held that while re-appreciating evidence the
High Court cannot act as an Appellate Authority in the disciplinary
proceedings. The Court held the parameters as to when the High
Court shall not interfere in the disciplinary proceedings: "13.
Under Article 226/227 of the Constitution of India, the High Court
shall not: (i) re-appreciate the evidence; (ii) interfere with the
conclusions in the enquiry, in case the same has been conducted
in accordance with law; (iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence; (v) interfere, if there be
some legal evidence on which findings can be based. (vi) correct
the error of fact however grave it may appear to be; (vii) go into the
proportionality of punishment unless it shocks its conscience."
(vii) In one of the recent judgment reported in the case of The State of
Bihar & Ors. vs. Phulpari Kumari 2020 2 SCC 130 the aforesaid
principle of judicial review has been summarized. The Supreme
Court has observed that sufficiency of evidence is not within the
realm of judicial review and interference of court should be limited
W.P.A. 21237 OF 2010
only to no evidence cases as the departmental inquiry does not
follow strict rules of evidence as that in criminal trials. The other
judgement of recent times reported in 2020 SCC Online SC 954
[Director General of Police, Railway Protection Force & Ors.
vs. Rajendra Kumar Dubey, the scope of judicial review has also
been summarized.
viii) In the light of the above judgement it can be concluded that judicial
review is not an appeal from a decision but a review of the manner
in which the decision is made. The Court in its power of judicial
review does not act as Appellate Authority to re-appreciate the
evidence and to arrive at its own independent findings on the
evidence. The Court 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 inquiry 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 may
interfere with the conclusion or the finding, and mould the relief so
as to make it appropriate to the facts of each case. The disciplinary
authority is the sole judge of facts where appeal is presented. The
appellate authority has co- extensive power to re-appreciate the
evidence or the nature of punishment. These principles have been
also summoned in the Five Bench judgement of the Hon'ble
Supreme Court reported in 1993(4)SCC 727 [Managing Director
W.P.A. 21237 OF 2010
ECIL, Hyderabad & Ors vs. B. Karunakar & Ors.] which has been
consistently followed in the subsequent judgements.
Findings: -
After going through the materials on record and considering the
respective contention in the touchstone of the various
judgements laying down the ratio and tests of judicial review
in departmental proceedings, I notice the following:-
(i) On 27th March, 2008, the General Manager being a
Competent Authority under regulation 3(f) of the said
regulation issued a suspension order (in contemplation of a
disciplinary proceeding) and communicated the same to the
petitioner. The petitioner admittedly received the same.
(ii) By a letter dated 5th May, 2008, the Deputy General Manager,
In-charge of the Zone being the authorized officer under the
said regulations issued a show cause notice to the petitioner
clearly indicating therein the facts leading to the charges of
wilful violation of the extant guidelines of the said bank, that
the acts of the petitioner were with mala fide intention, the
petitioner had committed fraud as well as breach of trust. On
a plain reading of the said letter the allegations against the
petitioner can be clearly understood and the points on which
the petitioner was to show cause can also be specifically
deciphered. The petitioner admittedly received this letter and
has replied to the same by his letter dated 7th July, 2008. It
W.P.A. 21237 OF 2010
also appears from the reply that there was no difficulty in the
petitioner in appreciating the charges levelled against him. In
is only in the writ petition; the petitioner has taken the point.
This contention of the petitioner raised at the belated stage
even if, considered is unacceptable in view of the petitioner's
conduct as apparent from his reply.
(iii) The General Manager as the Disciplinary Authority issued a
memo dated 25th August, 2008 informing the petitioner that a
Disciplinary Proceedings (DP) under regulation 6 of the said
regulation will be held against the petitioner. The Articles of
Charges and the Statement of Allegation were annexed to the
said memo. The petitioner's statement of defence was also
invited. The Articles of Charges and the Statement of
Allegations on a plain reading clearly demonstrate the charges
levelled against the petitioner and the supporting statement
for such charges was also provided. I find that the said officer
in terms of the schedule of the said regulation is competent to
issue such notice. The petitioner's objection about the
competence of the said officer is ruled out.
(iv) The petitioner admittedly received the memorandum dated
25th August, 2008 with its annexures being the Articles of
Charges and Statement of Allegations. The petitioner
understood the charges and replied to the same on 17th
September, 2008. It is only at a belated stage i.e., before this
Court the petitioner has alleged about the vagueness of
W.P.A. 21237 OF 2010
charges. On a close scrutiny of the documents up to the
petitioner's reply dated 17th September, 2008 the petitioner's
allegation as to the vagueness of charges cannot be accepted.
(v) Although the memorandum dated 25th August, 2008 does
not say that the petitioner's reply dated 7th July, 2008 has
been considered while issuing such memorandum but the
fact of issuance of such memorandum clearly demonstrate
that the disciplinary authority was not satisfied with the reply
of the petitioner. Non-mentioning of the petitioner's reply in
the said memo at the highest can be an irregularity and not
an illegality to invalidate the disciplinary proceedings. The
petitioner is also not deprived of a reasonable opportunity of
hearing for such omission which can be urged or construed
as violation of principles of natural justice. This is more so in
view of the subsequent steps taken in the departmental
proceedings. In the said memorandum, the Disciplinary
Authority has also appointed an Inquiry Officer and a
Presenting officer in terms of the said regulation. The
Disciplinary Authority, therefore, did not retain with itself the
enquiry required for going into the articles of charges and
statement of allegations and had informed the petitioner
about the Inquiry Officer and the Presenting Officer. The
Disciplinary Authority was well within its power and authority
conferred under the regulation to appoint such Inquiry Officer
and the Presenting Officer.
W.P.A. 21237 OF 2010
(vi) The Inquiry Officer fixed a date of preliminary hearing of the
case on 27th September, 2008 which was duly communicated
to the petitioner. The petitioner accepted the same and
attended the preliminary hearing on 27th September, 2008.
(vii) The minutes of preliminary enquiry as appears from the
record was duly signed by the petitioner and was also
received by him. The petitioner thereafter by a letter dated
30th September, 2008 appointed Tridibesh Prasad Nanda as
the Defence Representative to defend the petitioner. In the
enquiry proceedings, 7 witnesses were examined by the
Presenting Officer who were duly cross-examined. The
petitioner was given ample opportunity to look into the
documents sought to be relied upon by the bank in the
enquiry proceedings. The minutes of the enquiry proceedings
clearly show that the same is signed by the Inquiry Authority,
Presenting Officer, Defence Representative and the petitioner.
The petitioner was, therefore, given reasonable opportunity of
hearing as also every opportunity to represent his case before
the Inquiry Officer which is in compliance with the principles
of natural justice.
(viii) The statement of the Presenting Officer submitted on 16th
December, 2008 was duly made over to the petitioner. The
petitioner had filed his written argument through the Defence
Representative which is also on record. After considering
such written submission, the Inquiry Officer prepared and
W.P.A. 21237 OF 2010
submitted his report before the Disciplinary Authority on 29th
January, 2009. The enquiry report was admittedly made over
to the petitioner inviting his response thereto. There is as
such compliance of the principles of natural justice even at
this stage. The enquiry report does not provide for any
specific punishment for which it can be said that the Inquiry
Officer exceeded his jurisdiction.
(ix) The petitioner by a letter dated 12th February, 2009 which is
also on record, requested the Disciplinary Authority for
sympathetic treatment and benevolent consideration. In the
said letter, the petitioner has virtually admitted the
allegations levelled against him and has expressed his
repentance for the same. The petitioner also promised to
rectify himself and prayed for a lenient view being taken
against him.
(x) The Disciplinary Authority after considering the enquiry
report and the materials on record agreed with the
observations of the Inquiry Officer contained in the enquiry
report and found that 3 out of the 4 allegations contending
the statement of allegations were conclusively proved against
the petitioner. The Disciplinary Authority also held that
though the fourth allegation has not been proved yet on the
basis of proven allegations all the 5 articles of charges were
established as against the petitioner. The Disciplinary
Authority, therefore, concluded that the charges being serious
W.P.A. 21237 OF 2010
in nature and that the petitioner's actions being derogatory,
prejudicial and detrimental to the interest of the said Bank.
The Disciplinary Authority in terms of regulation 5 (3) read
with regulations 4 and 7 of the said regulations, therefore,
imposed a major penalty as against the petitioner. Since the
Disciplinary Authority has accepted the report of the Inquiry
Officer, the question of the Disciplinary Authority inviting
petitioner's views prior to declaring the punishment also does
not arise in view of the ratio laid down by the Hon'ble
Supreme Court in Narinder Mohan Arya (Supra) and Roop
Singh Negi (Supra).
(xi) The petitioner preferred an appeal on 6th May, 2009. The
Appellate Authority as will appear from the order dated 27th
June, 2009 considered the allegations, the charges, the
findings of the Disciplinary Authority, the grounds of the
appeal and after discussing the matter passed his judgment.
In fact, the Appellate Authority modified the order of the
Disciplinary Authority by holding "removal from bank's
service which shall not ordinarily be the disqualification for
future employment". The Appellate Authority also held that
the period of suspension shall be treated as a period not
spent on duty. The Appellate Authority, therefore, cannot be
said to have not applied his independent mind while
performing quasi judicial function. The proof in a disciplinary
proceedings has the trappings of proof in a civil matter and is
W.P.A. 21237 OF 2010
not required to be proved beyond reasonable doubt like in a
Criminal Case as held in Phulkumari (Supra) and Rajendra
Kumar Dubey (Supra)
(xii) It is evident from the enquiry proceedings that the Inquiry
Officer did not collect any evidence from outside of the
materials submitted in the enquiry proceedings. The enquiry
report on this ground cannot be said to be perverse. The
petitioner was rendered an opportunity to cross-examine
which the petitioner has availed through the Defence
Representative. There is as such compliance of the principles
of natural justice in this context. The Disciplinary Authority
by applying his independent mind has concurred with the
findings of the enquiry authority. The Appellate Authority has
also independently scrutinised the materials taken into
consideration by the Disciplinary Authority and thereafter has
passed his order. After there being a concurrent finding by
the Disciplinary Authority as also the Appellate Authority as
to the charges as against the petitioner being proved, there is
also no scope for interference by this Court in exercise of its
authority under the Article 226 of the Constitution of India to
re-appreciate the evidence and come to a finding which may
be different from that of the Disciplinary Authority of the
Appellate Authority. The High Court in exercise of its
jurisdiction under Article 226 of the Constitution cannot
consider the question of sufficiency or adequacy of evidence in
W.P.A. 21237 OF 2010
support of a particular conclusion. That is a matter which is
within the competence of the authority which deals with the
question as held in Roop Singh Negi (supra) cited by the
petitioner. The High Court has to ask in terms of the said
judgment whether there is any evidence at all in support of
the impugned conclusion, which on being asked is found to
be present. The charges are found to be proved as against the
petitioner without even relying upon the petitioner's
admission in the letter dated 29th March, 2008. Although the
scope of going into the allegation of fraud as made out against
the said letter of admission in writ jurisdiction is very limited,
yet the petitioner has not been able to aver and even prima
facie satisfy as to fraudulent nature of the said letter dated
29th March, 2008. That apart and in any event on going
through the minutes of the enquiry proceedings, I do not find
to come to a different conclusion from that what has been
held by the Appellate Authority. The acts of the petitioner
which has been admitted by the petitioner before the
Disciplinary as also the Appellate Authority are sufficient
enough for the said two authorities to hold that the petitioner
is guilty of misconduct yet the bank has independently
without relying upon the admission has proved the case. It is
also clear from the order of the Appellate Authority that the
said authority does not repose any confidence in the petition
in allowing the petitioner to continue with the bank as an
W.P.A. 21237 OF 2010
officer of the said Bank. I also find no material or provision of
law to differ from such findings.
(xiii) The judgements in A.L. Kalra (Supra) cited by the petitioner
has been diluted in 1995 (6) SCC 749 [B.C. Chaturvedi vs.
Union of India]; 1997 (3) SCC 387 [Secretary To
Government & Ors vs. A.C.J. Britto and 2012 (5) SCC 242
[Vijay Singh vs. State of Uttar Pradesh & Ors] and as such
the same cannot be applied to the facts of this case. The
findings of the Appellate Authority as a consequence thereof
cannot also be interfered in judicial review. Similarly, the
Single Bench Judgement in Samarendra Nath Roy (Supra)
also has no application in the facts of this case.
(xiv) I have also considered the issue of disproportionate
punishment though not specifically raised by the petitioner in
view of one of the judgements cited by the petitioner being
Ranjit Thakur (supra). I have considered some of the
judgments delivered by the Hon'ble Supreme Court in this
regard which are as follows : i) 1995 (6) SCC 749 [B. C.
Chaturvedi Vs. Union of India and Others] ii) 1998 (7) SCC
84 [Punjab National Bank vs. Kuj Behari Misra] iii) 2013
(10) SCC 106 [Deputy commissioner, Kendriya Vidyalaya
Sangthan and Others Vs. J. Hussain] iv) 2014 (9) SCC
315 [Life Insurance Corporation of India and Others vs. S.
Vasanthi] v) 2015 (8) SCC 272 [ Nicholas Piramal India
Ltd. Vs. Harisingh] vi) 2017 (2) SCC 528 [Chief Executive
W.P.A. 21237 OF 2010
Officer, Krishan District Co-operative Central Bank Ltd.
and Another vs. K. Hanumantha Rao and Another] vii)
2019(15) SCC 786 [Naresh Chandra Bhardwaj vs. Bank of
India & Others] viii) 2019(16) SCC 69 [State Bank of India
& Others vs. Mohammad Badruddin] ix) 2020 SCC Online
SC 954 [Director General of Police, Railway Protection
Force and Others Vs. Rajendra Kumar Dubey].
(xv) Keeping in mind the ratio laid down in the aforesaid
judgements, I find no reasons to interfere with the order of the
Appellate Authority being the order impugned in this writ
petition. The Appellate Authority has considered the scope
of reduction of punishment and has thereafter modified the
order of the Disciplinary Authority. The offence committed by
the writ petitioner attracts major penalty in terms of the said
regulation and is not shocking to the conscience. Keeping in
mind the petitioner was a bank officer dealing with public
money and that he has compromised his integrity.
Conclusion
In the light of the discussion, analysis and findings made
hereinabove, the writ petition is dismissed, however, without any
order as to costs. The respondent bank shall within three weeks
from date disburse all the benefits available to the petitioner in
terms of the order of the Appellate Authority dated 27th June, 2009
as upheld by this order, if not already paid. The petitioner shall be
W.P.A. 21237 OF 2010
entitled to accept such benefits if offered by the bank without
prejudice to his rights and contention.
Urgent photostat certified copy of this judgment and order, if
applied for, be supplied to the parties on priority basis after
compliance with all necessary formalities.
(ARINDAM MUKHERJEE, J.)
