Sri Uttam Kumar Das vs Bangiya Gramin Vikash Bank & Ors
2023 Latest Caselaw 6051 Cal

           IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE



Present:

THE HON'BLE JUSTICE Shekhar B. Saraf

                            WPA 5066 of 2020

                                   With

                              CAN 1 of 2021

                        SRI UTTAM KUMAR DAS

                                 VERSUS

                 BANGIYA GRAMIN VIKASH BANK & ORS.




For the Petitioner:                 Mr. Aninda Lahiri
                                    Mr. Prasad Bagchi


For the Respondents:                Md. Mokaram Hossain

Last Heard On: August 31, 2023

Judgement On: September 12, 2023

Shekhar B. Saraf, J.:

1. The petitioner was appointed as an Officer [Junior Management Grade

(Scale-I)] at Raniganj Branch on February 8th, 2014, of the respondent

bank being Bangiya Gramin Vikash Bank (hereafter referred to as

respondent). Before his demotion which resulted from a punishment

order dated October 1st, 2018, (hereinafter referred to as 'punishment

order') in connection to a charge sheet dated August 30th, 2016, he was

working in the capacity of a Branch Manager. The current writ petition

has been filed seeking to quash charge sheet dated August 30th, 2016,

the enquiry report dated May 28th, 2018, (hereinafter referred to as

'enquiry report'), the punishment order dated October 1st, 2018, and

the order passed by the Appellate Authority dated November 1st, 2019,

where the petitioner was found guilty of misconduct and his pay scale

was reduced accordingly; and to instruct the respondent to fix the pay

scale according to Circular No. BGVB/HO/P&A/48/2015 dated August

29th, 2015.

2. In a letter dated July 14th, 2016, the bank alleged that the petitioner

had refinanced certain accounts which were beyond his authority.

Regarding loans given under The Prime Minister Employment

Generation Programme scheme (hereinafter referred to as "PMEGP"),

the respondent accused the petitioner of failing to ensure the end use of

such accounts, resulting in such loans accounts becoming irregular

and causing loss to the bank. The petitioner was directed to submit his

written explanation which he did vide an undated letter.

3. In the letter, the petitioner stated that there were certain overdue loans

that were affecting the NPA figures of the branch. With the little

experience he had as a bank clerk, he believed he could reduce the NPA

figures of the branch by contacting the loanee members with a

compromise. However, many did not accede to his proposal and wished

to continue with their loans. Thus, the petitioner suggested that if the

loanees paid off their loans in full, they would be issued new loans that

would satisfy the purposes of their business. Some members agreed to

this proposal. He argued there was no mala fide intention and he

carried out this task with full cooperation of a second officer. He also

argued that one of the impugned loans was sanctioned by the

predecessor of his position and all the other loans were sanctioned with

the discretionary powers given to a Scale-I Branch Manager. Regarding

the loans given under the PMGEP scheme, he confessed that there was

a lot of pressure from local management and government officials to

sanction such loans. Thus, he disbursed the initial portion of the

composite loan and subsequently on the recommendation of a second

officer, cash credit loans were given. The petitioner highlighted that he

did not extend cash credit loans in three of the accounts as the second

officer did not recommend it. He further argued that he was unable to

ensure the end use of such accounts as he was severely injured from a

motor bike accident on July 8th, 2015, and was bed ridden for three

months.

4. On August 30th, 2016, the respondent issued a charge sheet where they

alleged that they had received no reply and accordingly proceeded with

disciplinary proceedings. The petitioner was accused of acting in

contravention of Regulations 18 & 20 of Bangiya Gramin Vikash Bank

(Officers and Employees) Service Regulations, 2010 read with

(Amendment) 2013 and the following charges were i) ARTICLE-I

Sanctioning/Re-financing and disbursing of loans violating Rules,

Norms and Lending Recovery Policy of the Bank; ii) ARTICLE-II

Committing acts detrimental to the interest of the Bank; iii) ARTICLE-III

Lead to loss to the Bank; iv) ARTICLE IV Undue favour to PMEGP

Borrowers and v) ARTICLE V- Committing breach of trust.

Furthermore, they accused him of influencing the second officer of the

branch to obtain his signature, considering the second officer was a

novice and lacked skills.

5. The petitioner replied to the charge sheet vide letter dated September

23rd, 2016, where he submitted that he received the letter of

explanation dated July 14th, 2016 on August 2nd, 2016, and his reply

has been received by the respondents on August 6th, 2016. He also

submitted that he received the charge sheet dated 30th August 2016 on

5th September 2016 and has prayed for extension of time accordingly.

He argued that there is only a difference of 4 months and 7 days in

seniority between the second officer and him in terms of experience

thus it was improper to adjudge him as experienced and the second

officer as a novice. He further argued that the loans he had sanctioned

were not guided by the Lending Policy of the bank for the Financial

Year 2014-2015. He further argued that the Lending Policy stated that

existing non-performing borrowers shall not be allowed any fresh

exposure, however, the borrowers he has refinanced had re paid their

loans before any fresh exposure was made. With regards to the loans

given under the PMEGP scheme; he argued that the branch had little to

do with the selection process of prospective borrowers and selection

was done by a District Level Task Force Committee. Out of the

contended loans, one was sanctioned by the regional manager and the

rest were sanctioned by him on the support of the concerned

Government Agency. Steps were taken to track how the loans were

being utilized and accordingly the residual portion of the loan was

released. In cases of derelict or defiant cases, the loans were stopped.

Regarding giving undue favour to the borrowers under the scheme, he

argued that linking subsidy with the loan account gives no undue

favour as the fund is locked for three years. Furthermore, considering

the task of physically verifying such borrowers is done by the

Government Agency and as he received no negative report of such

borrowers, he did not hesitate in linking such borrowers to the subsidy.

6. The respondent vide letter dated September 23rd, 2016, stated that they

have not received a written statement of defence and thus they shall

hold a departmental enquiry against him in respect of the charges

levelled against him. The departmental hearings were held on

November 17th, 2016, March 16th, 2017, September 4th, 2017, and

September 5th, 2017; and the report was submitted on May 28th, 2018.

The Enquiry Officer held that pertinent documents were placed that

were sufficient to prove the charges against the petitioner and the

petitioner could neither logically deny his lapses, nor cite any defence

exhibits in his favour. It was held that the petitioner had committed

misconduct by failing to discharge his duties sincerely and faithfully.

Regarding the loans approved under the PMEGP scheme, the General

Manager, DIC, Malda found clear anomalies during their branch visit.

Furthermore, such loans were disbursed without ensuring proper end

use of bank finances and the Enquiry Officer rejected the contentions of

the petitioner that such allegations were based on a manufactured

certificate as the petitioner was unable to give valid reasons for such

claims. Regarding the rest of the loans given outside the scheme; the

Enquiry Officer held that the petitioner had chosen to give loans to

defaulters whose integrity are not beyond doubt. However, regarding

the allegations pertaining to the second officer, the Enquiry Officer held

there was no evidence to show that the petitioner had influenced him to

obtain his signature. On May 30th, 2018, the respondents sent the

findings of the Enquiry Officer to the petitioner, asking for the written

submission within 15 days.

7. The petitioner replied to the report of the Enquiry Officer vide letter

dated June 30th, 2018, where he alleged that the Enquiry Officer was

unable to prove the article of charges placed against him.

8. On October 1st, 2018, the respondents issued punishment order No.

10/2018 against the petitioner upholding the findings of the Enquiry

Officer and imposing the penalty of Reduction of Basic Pay from the

post of [Junior Management Grade (Scale-I)]. The petitioner appealed

the punishment order vide letter dated November 18th, 2018, and the

Appellate Authority vide a reasoned order dated November 1st, 2019,

upheld the punishment order. They held that in 11 cases there was an

absence of due diligence in sanctioning and disbursing the loans by the

petitioner and such loans were extended without appraising the

essential parameters. Regarding the loans extended under the PMEGP

scheme it was found that the Management Exhibitions relied on by the

Presenting Officer was sufficient enough to prove the charges against

him and that the petitioner aided fresh finances under the PMEGP

scheme in a manner not recommended by bank's lending policy,

principles and law-abiding practices.

Contentions

9. The petitioner contended that the charges levelled against him were

committed by both the petitioner and the second officer in question, yet

the second officer has been spared. According to Circular no.

CREDIT/238/2009 dated September 22nd, 2009, the second officer

shares duties in credit management and ensuring correct end use of

the fund under sanction and by failing to consider the importance of

the work performed by the second officer, the Enquiry Officer has failed

to act fairly. The Enquiry Officer also overlooked the arguments made

by the petitioner; and the Disciplinary Authority has acted in a

mechanical manner by relying on the faulty findings of the Enquiry

Officer. The Disciplinary Authority also failed to issue a second charge

sheet before releasing the punishment order. The petitioner also argued

that the nature of the punishment is not in conformity with the officer's

pay scale given in Circular No. BGVB/HO/P&A/48/2015 dated August

29th, 2015, as he has been affixed to a pay scale which is lower that the

position he has been demoted to and it was enforced with immediate

effect. By affixing this arbitrary punishment, the Disciplinary Authority

has acted in a mechanical manner. With regards to the order passed by

the Appellate Authority, the petitioner argued that the authority has

failed to apply their mind to the order as they ignored the argument of

the petitioner with regards to fixation of pay scale and reverted him to a

wrong pay scale. Furthermore, the petitioners cited Council of the

Institute of Chartered Accountants of India v. Somnath Basu

reported in AIR 2007 Cal 29 to hold that failure to rise to the expected

level of efficiency in discharging professional duties cannot be regarded

as misconduct and misconduct arises from ill-motive. Mere acts of

negligence, innocent mistake or errors of judgement do not constitute

misconduct.

10. The argument of the respondents is that the loans were granted and

sanctioned without following procedures and rules. Despite having a

history of old NPA and overdue loan accounts, the petitioner refinanced

such loanees without appreciating certain essential parameters when

refinancing such loans, thus violating guideline and rules of the lending

policy of the bank. The respondents cited State Bank of India and

Ors v. S.N Goyal reported in AIR 2008 SC 2594 and argued that the

position of a bank manager is a matter of great trust and any

misappropriation, even temporary, constitutes a serious misconduct,

inviting serious punishment. The respondents further cited Ram

Pratap Sonkar v. Chairman and Managing Director, Allahabad

reported in (2001) 1 LLN 727 where the Allahabad High Court relying

on Supreme Court judgements held that the bank operated on public

confidence and that even if no loss is proved, if misconduct is found

then the punishment order is justified. Furthermore, he was given

ample opportunity to present his case in his reply to the charge sheet,

his reply to the enquiry report and the appeal to the order of the

Disciplinary Authority. With regards to the punishment of reduced pay

scale, the respondent argued that the post of Branch Manager is not a

promotional post, and the petitioner cannot be promoted from Scale-I

officer to Scale-II officer with less than 8 years of experience as a Scale-

I officer. Thus, the petitioner was at a pay scale of a Scale-I officer and

his pay scale has been reduced accordingly, and such reduction is in

cognizance with Circular No. BGVB/HO/P&A/48/2015 dated August

29th, 2015. The respondents cited Apparel Export Promotion Council

v. A.K Chopra reported in 1999 (1) SCC 759 where the Supreme

Court held that it is a settled position of law that the Disciplinary

Authority and the Appellate Authority are the sole judge of facts and

unless there are certain circumstances, the High Court cannot interfere

with the factual findings.

Analysis and Conclusion

11. The current petition is with regard to the charge sheet dated August

30th 2016, the enquiry report dated May 28th 2018, the punishment

order dated October 1st, 2018 and the order passed by the Appellate

Authority dated November 1st, 2019 where the petitioner has alleged

that relevant factors have not been considered, that is, the involvement

of a second officer in sanctioning the loans had not been considered by

the authorities when deciding the admission of guilt of the petitioner.

He also alleged that a second charge sheet had not been released before

releasing the punishment order. The petitioner also argued that the

nature of the punishment is arbitrary as his pay has been reduced to a

pay scale he never belonged to, and the punishment was enforced with

immediate effect.

12. It is clear from a prima facie perusal of the issue that the petitioner has

refinanced wilful defaulters and such loan disbursal is against the

general policy of the bank, thus constituting misconduct. While the

petitioner has questioned whether such accounts were actually NPA's

and whether such accounts can be considered wilful defaulter under

the bank lending policy, this Court is not inclined to peruse the matter

as it does not have the jurisdiction to do so.

13. In Apparel Export Promotion Council (supra), the respondent had

challenged his dismissal from service on the grounds of sexual

harassment before the department could even release their order. While

his appeal was allowed by the High Court of Delhi, the decision of the

High Court was overruled by a Division Bench of the Supreme Court

who instructed the department to finish their enquiry. The department

terminated the services of the respondent who then challenged his

removal of service to the High Court of Delhi where the learned Single

Judge once again allowed his appeal, however, ordered that he should

be posted in any other office outside Delhi. The respondent appealed

the judgement of the Single Judge Bench to the Division Bench of the

High Court to claim back wages and appropriate posting. However, the

previous employees of the respondent, agitated by his return to work

filed an application seeking intervention in the then pending appeal.

The Division Bench upheld the decision of the Single Judge Bench and

dismissed the application of employees. The aggrieved employees filed a

special leave petition to the Supreme Court where the appeal was

allowed. The Supreme Court held the Disciplinary Authority, and the

Appellate Authority are the sole judges of facts and unless it finds that

the recorded findings were based either on no evidence or that the

findings were wholly perverse and/or legally untenable, the High Court

cannot interfere with the factual findings. The relevant paragraphs are

extracted and quoted below:

"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly

perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court.

Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141 HL] observed:

'The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.'

17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.

18. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur [(1972) 4 SCC 618]: (SCC p. 623, para 15)

'Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court, exercising its jurisdiction under Article 226, to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.'"

14. According to the law settled above, it is not within the purview of this

Court to call for records and see whether their decision was correct or

not. This Court shall not look into the Bank Lending Policy and the

nature of the accounts in order to adjudicate whether the punishment

was truly deserved or not. The only time the court can interfere is when

the Bank acts in an arbitrary manner as discussed in Om Kumar v.

Union of India reported in (2001) 2 SCC 386. The relevant

paragraphs have been reproduced below:

"66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority.

67. But where an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he had acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary......."

15. To understand whether the Wednesbury Principle or the Principle of

Proportionality should be invoked, one is required to refer to the Apex

Court judgement in Anil Kumar Upadhyay v. The Director General,

SSB and Others reported in 2022 SCC OnLine SC 478. In this case

two officers were charge sheeted with equal charges yet one was

removed from service and the other was given the penalty of forfeiture

of two years seniority in the rank of constable and forfeiture of two

years' service for the purpose of promotion. The appellant approached

the court stating that given the facts of the case, his punishment was

discriminatory and disproportionate. The court laid down the scope of

judicial review in such cases that is delineated below:

"22. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to:

i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as 'Wednesbury principles'.

In the Wednesbury case, [1948] 1 K.B. 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under:

'18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.'

iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:

'19. The principles discussed above can be summed up and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical, or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge- sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.'"

16. The court further held that a punishment cannot be held to be

disproportionate merely on the grounds that another employee has

been given a lesser punishment. The relevant paragraph is provided

below:

"25. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him...."

17. As per the Circular dated September 22nd, 2009, there is a difference

between the position of a Branch Manager and a Credit Manager, and it

cannot be said that both the positions are in parity with one another.

The position of the Branch Manager and the second officer cannot be

considered to be identical and as per the law laid down in the

abovementioned cases; this Court is confined only to a secondary role

of review to see if the authorities have acted in cognisance with the

Wednesbury Principle.

18. In the case of Associated Provincial Picture Houses Limited v.

Wednesbury Corporation reported in (1948) 1 KB 223 the Kings

Bench held that under the Wednesbury Test, the courts could interfere

with administrative decisions if (i) the order was contrary to law (ii) or

relevant factors were not considered, or (iii) irrelevant factors were

considered or, (iv) or the decision was such that no other authority

under similar circumstances would have come to this conclusion.

19. The Wednesbury Principle also finds its place in Indian jurisprudence

and has been used by the Apex Court in various cases to understand

whether the actions of the state are arbitrary in nature. The principles

laid down in Associated Provincial Picture Houses Limited v.

Wednesbury Corporation (supra) were echoed by the Apex Court in

Union of India v. G. Ganayutham, reported in (1997) 7 SCC 463.

The relevant paragraph has been reproduced below:

"31. To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test."

20. If we look at the contentions of the petitioner, that is (i) procedural

failure of the authorities to issue a second charge sheet; (ii) the failure

of the authorities to consider the importance of the role of the second

officer in the disciplinary proceedings and (iii) the nature of the

punishment being arbitrary, three out of four factors in the

Wednesbury Principle are being tested; those being (i) the order was

contrary to law (ii) relevant factors were not considered and (iii) the

decision was such that no other authority under similar circumstances

would have come to this conclusion. I shall deal with each of these

contentions one by one in seriatim.

21. The petitioner argued that the order was not incognizance with law as a

second charge sheet was not released before releasing the punishment

order. The petitioner has not placed any rules under the Bangiya

Gramin Vikash Bank (Officer and Employees) Service Regulations, 2010

read with the subsequent Amendment, 2013 to prove that issuing a

second charge sheet is envisaged in the rules of the Bank. On the other

hand, the petitioner has been given a chance to reply to his charge

sheet, the Enquiry Officers report and appeal the decision of the

disciplinary authority to the appellate authority. Thus, the petitioner

has been given the opportunity to present his case in front of the

authorities.

22. Regarding whether the authorities in question have failed to consider

relevant factors as the second officer was spared, the Apex Court in

Union of India v. G. Ganayutham (supra) held that the court does

not have jurisdiction to go into the correctness of the choice made by

the administrator amongst the various alternatives open to him.

Furthermore, in Punjab and Sind Bank v. Daya Singh reported in

(2010) 11 SCC 233, a report of the Enquiry Officer was set aside by

the High Court on the grounds that the Enquiry officer merely stated in

his report that certain documents were in support of each of the

charges and the reply of the petitioner was not tenable. The High Court

further held that the documents produced were neither detailed, nor

their nature was explained. There was no discussion and much less

any analysis of the evidence presented, thus the absence of good reason

was held to be a breach of the principles of natural justice. The

Supreme Court set aside the order of the High Court on the grounds

that once the charges were found to have been established, the High

Court had no reason to interfere in the decision unless the findings

were perverse; which is a finding based on no evidence or one that no

reasonable person would arrive at. The relevant paragraphs have been

reproduced below:

"23. We are rather amazed at the manner in which the High Court has dealt with the material on record. The enquiry officer is an officer of a Bank. He was considering the material which was placed before him and thereafter, he has come to the conclusion that the misconduct is established. He was concerned with a serious charge of unexplained withdrawals of huge amounts by a Branch Manager in the name of fictitious persons. Once the necessary material was placed on record and when the charge-sheeted officer had no explanation to offer, the enquiry officer could not have taken any other view. The order of a bank officer may not be written in the manner in which a judicial officer would write. Yet what one has to see is whether the order is sufficiently clear and contains the reasons in justification for the conclusion arrived at. The High Court has ignored this aspect.

24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the

present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665]. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State [(2009) 10 SCC 206]. The decision of the High Court cannot therefore be sustained.

25. As held in T.N.C.S. Corpn. Ltd. v. K. Meerabai [(2006) 2 SCC 255] the scope of judicial review for the High Court in departmental disciplinary matters is limited. The observations of this Court in Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762] are quite instructive: (SCC pp. 768-69, para 11)

'11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived

at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel [AIR 1964 SC 364] the Constitution Bench has held: (AIR p. 370, para 23)'

'23. ... 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.'

26. In a number of cases including SBI v. Bela Bagchi [(2005) 7 SCC 435] this Court has held that a bank employee has to exercise a higher degree of honesty and integrity. He is concerned with the deposits of the customers of the bank and he cannot permit the deposits to be tinkered with in any manner."

23. The Enquiry Officer in his report dated May 28th, 2018, had taken

cognisance of the allegation where it had been argued that the

petitioner had influenced the second officer and held there was no

evidence to show that the petitioner had influenced him to obtain his

signature. The actions of the Enquiry Officer cannot be said to be

arbitrary enough to sanction the interference of this Court.

Furthermore, the Enquiry Officer noted that the petitioner had been

given reasonable opportunities for comfortably verifying all the

documents exhibited by the Presenting Officer, had verified all the

concerned documents and had compared the documents with the

original during the enquiry proceedings. The Enquiry Officer also held

that the petitioner could not show evidence to disprove the

irregularities he was charged for when the documentary evidence was

being shown to him. He was found extending undue favour to

borrowers without taking into consideration their past track record

considering; and financing accounts under the PMEGP scheme without

undertaking post lending inspection. While the petitioner has

highlighted the importance of the role of the second officer, I fail to see

how issuing charge sheet to the second officer would absolve the

petitioner of his own guilt.

24. The petitioner also argued that the punishment order dated October 1st,

2018, was unreasonable. In CCSU v Minister for the Civil Service

reported in (1985) AC 374, Lord Diplock held that for a decision to be

unreasonable under the Wednesbury Test, it must be so outrageous in

its defiance of logic or of accepted moral standards that no sensible

person who had applied his mind to the question to be decided could

have arrived at it. It was also held in B.C. Chaturvedi v. Union of

India reported in AIR 1996 SC 484 that a decision must shock the

conscience of the High Court in order for the petitioner to avail

appropriate relief.

25. To support their case, the petitioner cited Council of Institute of

Chartered Accountants of India v. Somnath Basu (supra), however,

this case is of no persuasive value to the court as the punishment was

to remove the respondent from the registry of membership from the

Institute of Chartered Accountants of India as they failed to report any

irregularities and submitted a clean audit report. In the current case

the respondent has had his pay scale reduced as he had reached out to

owners of NPA accounts to refinance them and have wrongly disbursed

bank funds under the PMEGP scheme. The nature of the misconduct

alleged is completely different.

26. The petitioner argued he was getting paid Rs. 44,640/- (Forty-Four

Thousand Six Hundred and Forty Only) as a Branch Manager and his

initial pay was Rs. 24,100/- (Twenty-Four Thousand One Hundred

Only) as an Assistant Manager. His pay should be Rs. 39,400/- (Thirty-

Nine Thousand Four Hundred Only) as per the Circular No.

BGVB/HO/P&A/48/2015 dated August 29th, 2015, yet his pay was

fixed to Rs. 23,700/- (Twenty-Three Thousand Seven Hundred Only).

He argued that his pay should be reduced to Rs. 39,400/- (Thirty-Nine

Thousand Four Hundred Only) and not Rs. 23,700/- (Twenty-Three

Thousand Seven Hundred Only). The petitioner has only provided his

promotion letter from Office Assistant (Multipurpose), Group B to

Officer [Junior Management Grade (Scale-I)], Group A to show he was

promoted. The respondent argued that officers in the bank are

promoted by scale, for example Scale-I to Scale-II. Branch Manager is

not a promotional post and is merely a post given out of the business

and his position was always that of an Officer [Junior Management

Grade (Scale-I)] before the punishment order. By the law set down in

the precedents mentioned before, this Court does not have jurisdiction

to interfere with punishments that do not shock the conscience of the

court. Considering there is prima facie proof of misconduct on behalf of

the petitioner, demotion in salary pay scale does not shock the

conscience of this Court and I am not inclined to interfere with the

punishment order.

27. It is apparent from the law set down by the judgements given above that

the following principles emerge:

A. Judicial review, not being an appeal from a decision, but a

review of the manner in which the decision was arrived at, the

court, while exercising the power of judicial review, must

remain conscious of the fact that if the decision has been

arrived at by the administrative authority after following the

principles established by law and the rules of natural justice

and the individual has received a fair treatment to meet the

case against him, the court cannot substitute its judgment for

that of the administrative authority on a matter which fell

squarely within the sphere of jurisdiction of that authority

B. Where an administrative action is challenged as arbitrary under

Article 14, the question will be whether the administrative order

is rational or reasonable and the test then is the Wednesbury

Test. The courts would then be confined only to a secondary

role and will only have to see whether the administrator has

done well in his primary role, whether he had acted illegally or

has omitted relevant factors from consideration or has taken

irrelevant factors into consideration or whether his view is one

which no reasonable person could have taken. If his action does

not satisfy these rules, it is to be treated as arbitrary.

C. According to the test of the Wednesbury Principle, the courts

can only interfere with the judgement if (i) the order was

contrary to law (ii) or relevant factors were not considered, or

(iii) irrelevant factors were considered or, (iv) or the decision

was such that no other authority under similar circumstances

would have come to this conclusion.

D. For a decision to be unreasonable under the Wednesbury Test,

it must be so outrageous in its defiance of logic or of accepted

moral standards that no sensible person who had applied his

mind to the issue could have come to this conclusion.

E. The only exception to the abovementioned principle is that

when the co-delinquent is awarded lesser punishment by the

disciplinary authority even when the charges of misconduct are

identical. However, there must be a complete parity between the

two. Merely because one of the employees was inflicted with a

lesser punishment cannot be a ground to hold the punishment

was disproportionate especially if the higher punishment is

warranted and inflicted by the disciplinary authority after due

application of mind.

28. Based on the above principles, it is patently clear that in the present

case, the petitioner has been unable to show that the punishment order

dated October 1st, 2018, is in violation of any law, based on non-

appreciation of relevant facts and on consideration of irrelevant facts or

that the judgement was completely irrational. Ergo, the petitioner could

not adequately prove that this Court should exercise its discretionary

powers and interfere under Article 226 of the Constitution of India.

29. Thus, this Court is of the opinion that charge sheet dated August 30th,

2016, the enquiry report dated May 28th, 2018, the punishment order

dated October 1st, 2018, and the order passed by the Appellate

Authority dated November 1st, 2019, does not warrant any interference

by this Court.

30. Accordingly, this Writ Petition being WPA 5066 of 2020 is dismissed.

There shall be no order as to the costs.

31. An urgent photostat-certified copy of this order, if applied for, should be

made available to the parties upon compliance with requisite

formalities.

(Shekhar B. Saraf, J.)

.