Y.K. Singla vs Punjab National Bank And Ors.
1999 Latest Caselaw 364 Del

JUDGMENT

K. Ramamoorthy, J.

1. The writ petitioner was working as Chief Manager with the first respondent. The petitioner was removed from service by an order dated 24.10.1996 by the General Manager. The petitioner preferred an appeal and that was dismissed by the Charismatic-Managing Director by an order dated 26.6.1997. Challenging those orders the petitioner has filed the present writ petition.

2. According to the petitioner that he had served in the first respondent-Bank for about 38 years with all sincerity and devotion to duty. The petitioner was promoted as a Senior Management Grade, Scale IV Post i.e. the post of Chief Manager on 1.10.1986.

3. On 2.2.1993, a chargesheet was issued. On 4.11.1993, a supplementary to the charge-sheet dated 2.2.1993 was issued. On the basis of the charges the inquiry was conducted. The Inquiry Officer submitted his report but no date has been given.

4. Mr. S.C. Aggarwala, the learned Senior Counsel appearing for the petitioner brought to my notice the details about the ultimate conclusion arrived at by the Inquiry Officer. The Inquiry Officer had given the summary and the same reads as under:

CHARGE I

(a) Charge is not proved.

(b) Charge is proved to the extent that party had just 98.760 KW electricity power connection against the requirement of 400 KW.

(c) Charge is not proved.

(d) Charge is not proved.

(e) Charge is proved.

(f) Charge is proved to the extent that availability of the requisite margin with the party was not ensured.

(g) Charge is proved to the extent that working capital facilities were considered on the basis of annual capacity of 9000 MT/PA as against actual installed/licensed capacity of 3900 MT/PA. Other part of the charge is not proved.

(h) Charge is proved.

(i) Charge is proved to the extent that a vailment in CC (Book Debt) was allowed without procuring inventories of Book Debts from the party.

(j) Charge is proved.

CHARGE II

(a) Charge is proved.

(b) Charge is proved.

(c) Charge is proved.

(d) Charge is not proved.

(e) Charge is not proved.

(f) Charge is not proved.

(g) Charge is proved to the extent that stock reports were not got prepared to ensure proper control on operation of Cash Credit (P) Account.

CHARGE III

(i) Charge is not proved.

(ii) Charge is not proved.

(iii) Charge is not proved.

(iv) Charge is not proved.

(v) Charge is proved to the extent that charged officer did not ensure fixing of repayment schedule and instalments.

(vi) Charge is proved.

(vii) Charge is proved.

(viii) Charge is proved.

(ix) Charge is proved.

(x) Charge is not proved.

(Concluding Part) Charge is not proved.

ARTICLE OF CHARGES

Article I Charge is proved.

Article II Charge is proved.

Article III Charge is proved to the extent that pre-sanction safeguards/post-sanction follow-up were not observed/exercised. The other part of the charge of jeopardy to Bank's interest is not proved.

5. The learned Senior Counsel for the petitioner Mr. S.C. Aggarwala, formulated the following points:

(I) There is no evidence to sustain the charges against the petitioner;

(II) The conclusion arrived at by the Disciplinary Authority and the Appellate Authority is perverse and no reasonable person properly instructed in law would come to the conclusion arrived by the Inquiry Officer, Disciplinary Authority and the Appellate Authority;

(III) The Bank itself had admitted that the petitioner had not committed any offence;

(IV) The Appellate Authority refused to give personal hearing to the petitioner which would vitiate the order of the Appellate Authority;

(V) Very crucial documents which were necessary for establishing the case, were not furnished to the petitioner.

(VI) The first respondent had committed breach of mandatory provisions in Regulations 6(5)(iii) of the Punjab National Bank Officer Employee's (Discipline & Appeal) Regulations, 1977.

6. I shall now take Charge No. 1(b). The said charge reads as under:-

Charge No. 1(b)

He did not ensure availability of requisite power supply before sanctioning the Term Loan. The viability of the project was based on power to be generated through a Diesel Generator Set. It was not a viable proposition resulting in increase in cost and consequent break-down of the Unit. As per sanction note Diesel Generator Set of 300 KW was proposed to be utilised as an alternate arrangement of power supply but the electric power available with the party was just 98.760 KW against the actual requirement of 400 KW.

According to the petitioner, the loan was sanctioned on 13.3.1990 and 14.3.1990. The petitioner had made the following endorsement in the document which is produced as Annexure P-11 which would evidence the sanctioning of the loan:

The unit was visited in the 1st week of March, 1990. It is quite encouraging that the party is firstly working. The above proposed facilities are sanctioned subject to the above referred terms and conditions and also that payment be released in case of T/L to the suppliers. The working capital facilities to be released in stages, after ensuring that machinery is ready for production activity.

Sd/-                 

Y.K. Singha - Chief Manager

dt: 14.3.1990

7. The Inquiry Officer in his report has stated that "Presenting Officer has not produced any document or oral evidence to establish the required power load to run the size of the Unit the party was possessing except quoting the Inspector's objection appearing in his Inspection Report dated 16.2.1991 (P-62)".

8. The Inquiry Officer has also said "However, this requirement of 400 KW has also not been contested by the defense". This Ex. P-62, the Inspection Report was 11 months after sanctioning of the loan. The charge is that the petitioner had not taken into account the power load requirement. The first respondent was aware that the borrower had a Diesel Engine Generator. The Inquiry Officer had noticed from the crucial points " there has been no difference of opinion that Steel Rolling Mills, can be run exclusively on power generated through diesel engine". Therefore when the constituent had diesel engine generator, no complaint can be made against the action of any officer sanctioning loan. It was argued by the first respondent-Bank before the Inquiry Officer that if a Steel Rolling Mills must work on generator that would affect the profitability of the product. The Inquiry Officer dealt with this aspect squarely by saying however if Steel Rolling Mills being run primarily on power generated through diesel engine whether is cost effective and profitable in comparison to it being run on electricity power supply having

no adverse effect on this profitability. The Presenting Officer has not substantiated the charge through any 'authentic data'.

9. The Inquiry Officer has referred to the evidence of Shri Nirmal Dass PW-4 who had stated that the use of diesel engine as a permanent source of power is more costly resulting in adverse effect on the profitability. The Inquiry Officer has also referred to the material produced by the petitioner based on calculations on CAS data, the sanction note dated 13.3.1990 and 14.3.1990, accordingly the Inquiry Officer depicts that the unit will run on both power connections and diesel engine power in case of power failures. The fact that the party had the capacity to run the Steel Rolling Mills on generator by using diesel engine is not disputed. The fact that during the relevant period the generator had affected the supply of diesel cannot be disputed by anybody. The Inquiry Officer without applying his mind to the relevant facts had rendered the findings as under :

In the backdrop of above, the charge stand proved to the extent that the unit was proposed to be utilised as an alternate arrangement of power supply but the electric power available with the party was just 98.760 KW against the actual requirement of 400 KW. The other part of the charge has not been substantially proved.

10. The Disciplinary Authority has not at all adverted to this aspect in his order. The Appellate Authority has also not discussed at all and has simply affirmed the order of the Disciplinary Authority. The learned Senior Counsel Mr. S.C. Aggarwala, submitted that on the basis of Exh. 62 inspection report dated 16.2.1991 which was 11 months after the sanctioning of the loan, which does not in any way affect the decision making process of the Sanctioning Authority, no conclusion can be arrived at that there was any lapse on the part of the petitioner. There is absolutely no evidence at all against the petitioner to sustain this charge. The reasoning given by the Inquiry Officer is no reason at all in the eyes of law.

11. Charge No. 1(e) is to be dealt with Charge No. 1(e) reads as under:

Charge l(e)

He failed to take cognizance of the fact that the Directors of the Company were not experienced in the line.

12. The concerned officer while sanctioning the loan had taken into account the persons Incharge of the Company and their capacity to employ persons for running the Steel Rolling Mills. The Inquiry Officer in his report had stated that only Ex. P-35 and Ex. P-36 had been relied upon by the persons to substantiate this charge. Ex. P-35 dated 26.2.1990 is the loan application by the Company to apply for the loan. Ex. P-36 is the dated 13.3.1990/14.3.1990 is the sanctioning note. There is a technical report with reference to M/s. Balwant Steel Rolling Mills prepared by the Bank. In that inspection report it is stated :

Male Directors cf the Company have got sufficient business experience in the line and appear managerially, competent to handle business affairs of the unit. Shri Raj Kumar Bansal is reported to have 24 years experience in the line. He is also interested in trading concern having its name and style as M/s. Hari Om Steel Traders. To manage various aspects of the unit like technical, financial and marketing etc. the party has proposed to employ technically skilled persons and

managerially qualified personnel to assist Directors in managing overall affairs of the unit efficiently. In view of these, overall managerial aspects of the unit can be considered as satisfactory.

13. The officers who had prepared the technical report have also considered the experience by the persons and the management of the Company. The Technical report had also taken into account the business experience of the Directors of the Company.

14. Mr. S.C. Aggarwala, the learned Senior Counsel for the petitioner, submitted that the officers who had prepared the technical report which has been accepted by the Bank had focussed their attention to the business experience of the Directors of the Company and that has not been considered by the Inquiry Officer, Disciplinary Authority and the Appellate Authority and therefore, the findings given by the Inquiry Officer is wholly perverse and the Disciplinary Authority and the Appellate Authority had not at all discussed the matter and therefore, their orders also are vitiated and they are liable to be set aside.

15. Mr. A.K. Sikri, the learned Senior Counsel for the Bank submitted, that the Inquiry Officer though candidly stated that there are two documents available with the - Presenting Officer i.e. Ex. P-35 and Ex. P-36, which he had observed is sufficient in law to sustain the charge. The Enquiry Officer had stated:

Loan application form is expected to contain all the relevant and material information regarding the applicant-firm which becomes the basis for taking decision on the applicant's request. Under item No. 5 on page 2 of the loan application form (Ex. P-35), it is mentioned by the applicants; themselves that they have experience in trading of products proposed to be manufactured which is sufficient proof of their not having requisite experience in the manufacturing of the proposed product. Moreover, marketing is only one of the aspect (though important) of the entire project of a manufacturing of the proposed product.

16. This is no reason at all when a person who is a trader is desirous of running a Steel Rolling Mills, the Directors of the Company should be the persons who can work in the Steel Rolling Mills or they should be technically qualified, the reason given by the Inquiry Officer is totally unreasonable and it is contrary to the norms. I have no hesitation holding that the view taken by the Inquiry Officer, Disciplinary Authority and the Appellate Authority is absolutely perverse and it cannot be sustained in law. No person properly instructed in law would take the view.

17. Charge No. 1(f), according to the Inquiry Officer is partly proved, the charge reads as under:

Charge 1(f):

He did not ensure availability of the requisite margin with the party. The party had NWC of Rs. 1.27 lac as per provisional Balance Sheet as at 5.3.90 and Rs. 3.67 lacs as at 31.3.1990 against required NWC of Rs. 13.47 lacs.

18. The Inquiry Officer has referred to the case of the Bank which is in the following terms:

Presenting Officer referred documents marked Exs. P-37 to P-42,53,62, D-50, 109 to prove the charge.

Ex. P-37 - Dr. .(Transfer) Voucher dated 14.3.90 for Rs. 6.00 lacs -T/L A/c of above party.

Ex. P-38 - Dr.(Transfer) Voucher dated 14.3.90 for Rs. 7.00 lacs - T/L A/c of above party.

Ex. P-39 - Cr. (Transfer) Voucher dated 143.90 for Rs. 6.00 lacs - HO Gobind Garh Mandi for issue of draft fvg. Aman Machinery & Electric Co.

Ex. P-40 - Cr. (Transfer) Voucher dated 14.3.90 for Rs. 7.00 lacs - for issuing Cash Order fvg. G.D. Industries.

Ex. P-41 - Dr. (Transfer) Voucher dt. 29.3.90 for Rs. 1.60 lacs - T/L A/c of above party.

Ex. P-42 - Transfer Credit Voucher C/C A/c M/s. Balwant Steel Rolling Mills -Rs.1,60,000/-

Ex. P-53 - Cr. unsigned dated 10.3.90 on M/s. Balwant Steel Rolling Mills.

Ex. P-62 - IR dated 16.2.91 Appendix 'C item No. 15.

Ex. D-50 - Balance Sheet as on 5.3.90 of M/s. Govind Iron Mills Pvt Ltd.

Ex. D-109 - Balance Sheet as on 29.9.90 of M/s. Balwant Steel Rolling Mills (Prop. Gobind Iron Mills Pvt. Ltd.)

As per the contention of Presenting Officer, share application money amount i.e. Rs.13.54 lacs shown in the Balance Sheet dated 5.3.90, (Ex. D-50) the basis of processing/sanction of loan to the party on 14.3.90 cannot be treated as share capital until the shares are allotted as the same was held as custodian by the Company on behalf of the applicants. Hence no capital was available on 5.3.90. Even as per Balance Sheet dated 24.9.90 (Ex. D-109) the paid up capital of the Company is Rs. 10,000/- only. Hence, Company has no funds of its own to meet the margin requirements for the credit facilities sanctioned by the charged officer. Even if, share application money is considered as capital of the Company, the Company did not have sufficient liquid funds even to meet the margin requirements of the Term Loan what to say about Hyp. and Pledge Limit. Presenting Officer tried to justify his plea by the following calculations:

(Amount rounded to Rs. in Lacs)

1. Value of proposed Machinery to be financed as per Project Report (Ex. P-47).

19.75

2. Stipulated Margin as per sanction note 25% (Ex. P-36).

4.94

3. Term Loan sanctioned 14.60

4. Balance amount to be met by the Company including Margin.

5.15

Whereas as per Balance Sheet dated 5.3.90 (Ex. D-50) the availability of margin position is as under:

1. Share Application Money (Considering it as share paid-up capital).

13,54,000.00

2. Fixed assets.

11,35,574.00

3. Security with PSEB 90,675.00

4. Pre-Operating Exp.

91,681.00

5. Amount available as Margin against required margin of Rs. 5.15 lacs in Term Loan only (l-(2+3+4)) 36,070.00

Further, Presenting Officer pleaded that only a sum of Rs.6.00 lacs and Rs.7.00 lacs were released to the debit of Term Loan A/c of the party as against Rs. 7.10 lacs and Rs. 9,92,652/- being the full cost of Machinery proposed to be financed without recovering the proportionate margin in each case. It was contended that the Machines were not fully paid and seller can claim the balance amount from the Bank. Besides, payments to the suppliers have not been made as per established practice and Bank's guidelines i.e. by means of Draft/Cash Order as the case may be, as a sum of Rs. 1.60 lacs was credited to party's C/C A/c after debiting its Term Loan A/c at their (party's) request on account of "being balance amount of Term Loan". It is termed as "Accommodating Loan" as the same was neither towards cost of Machinery nor for reimbursement of Machinery purchased by the Company. Shri L.L. Nirwan (DW-3) the then Manager (Loans) at BO Civil Lines, Ludhiana deliberately avoided to answer the question on this score (Q. No. 471 on page 216 EPR).

It is further contended that Branch after verifying the record, has certified that No Proforma Bill/Pacca Bill Invoice is available in the Branch's record. Unattested quotations produced by the charged officer are not available in Branch record and charged officer has also not disclosed the source from where these have been procured. None amongst the witnesses testified these quotations. Quotation No. AMEC/89-90/258 dated 17.7.89 of Aman Machinery & Electric Co. and quotation dated 5.5.89 of Khalsa Bearing Corporation are not even addressed to anyone. Unstamped Receipt available on branch record on letter pad do not speak out Bills (Bill-No., date, amount etc.) for which the payment was received by the party. Amount of Rs. 6.00 lacs as per receipt was received by the so-called seller from the borrowing Company and not from the bank.

Fixed assets, if any, of the Company cannot be treated as margin as the facilities were sanctioned for specific purpose i.e. for purchase of Machinery and for working capital and not for financing the entire project (Ex. P-36) L&A Cir. No. 63 dated 11.11.93 (Ex. D-58) produced by defense was not in force at the time of sanction/release of loan in March, 1990.

19. The learned Senior Counsel for the petitioner submitted that the Bank refused to furnish the necessary documents to the petitioner to show that the party had applied for enhancement of the loan and the Zonal Office had directed to prepare the feasibility report. According to the learned Senior Counsel there are three volumes of documents relating to sanction of loan. Volume I is the file relating to pre-sanctioning of loan. Volumes II and III would relate to post sanction period which would contain the necessary files. These files were not made available to the petitioner and this would prove that absolutely nothing wrong was pointed out by anybody relating to the sanctioning of the loan. And as a matter of fact, the request of the party for enhancement of loan was considered and, necessary reports were directed to be prepared. Ultimately no doubt the enhancement was not granted and that is not relevant. In para 45 in the counter affidavit the Bank would state:

That the contents of para 50 are wrong and denied and the submissions made hereinbefore are reiterated. It is further submitted that the Inquiring Authority did not commit any error of irregularity when he asked the Presenting Officer to make a submission in respect of the documents demanded by the petitioner in order to decide the relevancy of the same. It is further submitted that all those documents which were found relevant by the Inquiring Authority and which were available were produced in the enquiry proceedings. The Bank would crave leave to refer to the enquiry proceedings at the appropriate stage.

20. According to the learned Senior Counsel for the petitioner para 51 had not been disputed. The learned Senior Counsel for the petitioner referred to para 81 of the writ petition wherein it is stated:

81, The petitioner submits with great respect that at every stage of the impugned proceedings, Enquiring Authority, the respondent 4 herein, has had been irreparably and although repudiating the defense by unlawful, mala fide, capricious, whimsical, fanciful and illegal withholding of "best evidence" and this aspect wholly vitiated the impugned departmental proceedings. For example, detail of some of such documents which have been unlawfully withheld by the respondents, is respectfully given herebelow:

(a) the petitioner requested for allowing him to adduce in the enquiry, Vols. II and II! of the correspondence files of the questioned borrower maintained at the Branch but despite repeated tearful, lamentable and humble submissions to the Domestic Tribunal holding the impugned enquiry, the same files/documents were malafidely not provided. These files alongwith relevant documents also contained Balance Sh'eet as on 313.1991 which clearly proves that the party had introduced funds sufficient to meet margin requirement and thereby the Change-1(f) and II could have been out rightly and absolutely 'disproved'. Had these documents/files been allowed to be adduced in the impugned enquiry, the Enquiring Authority could not have held the alleged charge as proved.

(b) not only the aforesaid documents were said to be not available by the Presenting Officer, they were withheld even when at Pages 50 of the Enquiry Proceeding Register, the availability of the documents was proved.

(c) Bills/Invoices in respect of machinery, purchased by the Questioned Borrower, were malafidely withheld by the Presenting Officer by saying that the said documents are not available. It is really extremely painful that the said documents were not ordered to be produced even when the petitioner on page 208 of Enquiring Proceedings Register has proved the existence of the said document. In answer to Q. 432/433, Shri L.L. Nirwan (Witness) confirmed the existence of said bills. Had these documents not withheld by the Domestic Tribunal, Custodian of Records, the Enquiring Authority could not have held proved alleged Charges - II(a) and II(c).

Similarly office copy of the Refinance Claim was very much in existence in Vol. II file and malafidely and illegally withheld by Domestic Tribunal and Custodian of Records and taking undue advantage of this crucial situation, the Enquiring Authority unreasonably and malafidely held on page 23 of impugned Enquiry

Report that "the defense did not produce either the original or carbon copy of the Refinance Claim prepared/lodged, the copies of correspondence addressed; to the party on this score in support of its conclusion". These findings can not pass the test laid down by the Hon'ble Supreme Court of India in National Insurance Company v. Jugal Kishore , wherein it has been held that it is the duty of the Custodian of Records to produce the documents. It is piteously submitted that the documents are invariably in the custody and control of the respondent-Bank and it was beyond supervening limit of the impossibility to bring those documents on record by the petitioner unless and except they were provided by the Custodian of Records at the requisition of the Enquiring Authority in accordance with Regulations 6(10)(b)(iv), 6(12) of Discipline Regulations. Under the clouds of these malafide exercises, the Enquiring Authority held Charge-1(h) as proved on page 24 of the impugned Enquiry Report. For, the whole impugned process of imposing penalty is vitiated.

21. The learned Senior Counsel for the petitioner submitted that in reply to this para the Bank had not given any reason as to why the documents could not be produced. Para 81 is dealt with by the Bank in its counter in para 69. Para 69 reads as under:

That the contents of para 81 are wrong and denied. It is denied that the Inquiring Authority acted with a prejudiced mind. It is further submitted that all relevant documents which were demanded by the petitioner and which were available with the Bank were produced on the record of the enquiry proceedings and the allegation by the petitioner that the documents were unlawfully withheld is denied.

22. The learned Senior Counsel relied upon the judgment of the Supreme Court reported in State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 the employee concerned in an inquiry should be given all the necessary documents by the department concerned. In para 10 their Lordship had observed:

Mr. Khaskalam has strenuously contended before us that in not supplying the copies of the documents asked for by the respondent the Enquiry Officer was merely exercising his discretion, and as such it was not open to the High Court to consider the propriety or the validity of his decision. In support of this argument he has referred us to the decision of the Patna High Court in Dr. Tribhuwan Nath v. State of Bihar, . In that case of public officer wanted to have a copy of the report made by the anti-corruption department as a result of a confidential enquiry made by it against the said officer; and the Enquiry Officer had rejected his prayer. When it was urged before the High Court that the failure to supply the copy of the said report constituted a serious infirmity in the enquiry and amounted thereby to a denial of a reasonable opportunity to the public officer the High Court repelled the argument, and held that the officer was not entitled to a copy of the report unless that report formed part of the evidence before the Enquiry Commissioner and was relied upon by him. "When however, the report was not at all exhibited in the case, nor was it referred to nor relied upon by the Commissioner", said the High Court, "there was no meaning in contesting it, and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions". In our opinion, mis decision cannot assist the appellant's case because, as we have already pointed out, the

documents which the respondent wanted in the present case were relevant and would have been of invaluable assistance to him in making his defense and cross-examining the witnesses who gave evidence against him. It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by petition filed in the High Court under Article 226 it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the Enquiry Officer. The Enquiry Officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly; and properly conducted the decisions reached by the Enquiry Officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. As Venkatarama Aiyar, J. has observed in Union of India v. T.R. Varma, "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry office by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Article 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India, where this Court has emphasised the importance of giving an opportunity to the public officer to defend himself by cross-examining the witnesses produced against him.

23. The learned Senior Counsel for the petitioner submitted that the findings report-by the Inquiry Officer on Charge No. 1(g), (h), (i) and (j) cannot at ail be sustained because there is absolutely no evidence to sustain those charges.

24. The learned Senior Counsel for the petitioner submitted that the Bank itself had admitted that there were no irregularities of sanctioning of loan. He referred to Annexure P-45 at page 288 of the typed set, is the application making claim on insurance

filed by the Bank. This was on 29.3.1993 just a month after the framing of the charges against the petitioner. In the relevant Column at page 289, the Bank had observed:

That the loss in respect of the credit facilities under claim has not arisen on account of any negligence in the observance of the necessary safeguards and procedures in regard to appraisal, supervision and follow-up of the credit facility or any dishonesty on the part of any of our employees or owing to decisions taken by them contrary to or in contravention of the instructions issued by us or the Corporation.

25. At page 292 in Column 14(c) the Bank had clearly admitted that they have taken all safeguards. Column 14(c) is as under:

Whether in regard to advances under claim the credit institution had observed all the necessary safeguards at:

(a) Pre-sanction stage Yes

(b) Post-sanction stage Yes

26. The Inquiry Officer has not dealt with this aspect at all. In dealing with the inquiry report in his explanation to the Disciplinary Authority the petitioner had clearly stated "that the Inquiry Officer has not taken any cognizance of the fact that the Bank had already lodged claim with the DICGC in the account of M/s. Balwant Steel Rolling Mills which declares that no responsibility whatsoever devolves upon him for the alleged irregularities with reference to the account of the said party".

27. The Disciplinary Authority observed :

The plea of Shri Singta that Enquiry Officer did not take cognizance of the fact that the Bank had already lodged claim with DI & CGC and as such no responsibility developed upon him is also not maintainable as lodging of claim by Bank with DICGC/FCGC does not mean that disciplinary proceedings cannot be initiated against erring officials.

28. The Appellate Authority had observed:

Lodging of claim with DICGC does not absolve the erring official from the irregularities committed by him. The contention raised by the appellant in this regard is not tenable.

29. The Disciplinary Authority and the Appellate Authority, accordingly to the learned Senior Counsel for the petitioner had not at all considered the legal effect of the admission on the part of the Bank when claim was made that the Bank had taken all safeguards and there were no irregularities in sanctioning of the loan and that would vitiate the decision of the Disciplinary Authority and the Appellate Authority. The learned Senior Counsel submitted deliberately post sanctioning files were not produced before the Inquiry Officer. According to the learned Senior Counsel, the Bank knew that if those volumes were produced no offence can be made out against the petitioner and the stand of the petitioner would vindicate. The learned Senior Counsel for the petitioner referred to Annexures 22, 26, 27 and 29. According to the learned Senior Counsel, the petitioner was not even allowed to go to the Zonal Office.

30. In Annexure P-27, the Bank had taken very curious stand. In reply to the letter

dated 19.2.1993 from the petitioner to the Senior Manager of the Personnel Division had written stating:

  Ref: PL:DAC:2137        dated: 6.3.93

 

Shri Y.K. Singla, 

Chief Manager,  

BO: Sabzi Mandi,  

Delhi. 
 

 Charge sheet dated 2.2.93 served upon you. 
 

Please refer to your letter dated 19.2.93 wherein you have sought permission from the Disciplinary Authority for consulting the relevant files at Zonal Office, Ludhiana as well as the concerned records at BO: Civil Lines, Ludhiana. Further, you have also requested for extension of time for submission of your statement of defense upto 20.3.93.

The matter was placed before the General Manager, the Disciplinary Authority who has since accepted to your request and has allowed you time upto 20.3.93, for submission of your statement of defense, failing which the matter shall be considered ex-parte, by him. However, your request for grant of permission for consulting the concerned file at Zonal Office, Ludhiana has not been acceded to by the Disciplinary Authority.

You are as such requested to submit your statement of defense positively upto 20.3.93.

31. The Disciplinary Authority had refused to give permission to the petitioner to see the files without assigning any reasons. This is contrary to the established principle of fair play and justice is the submissions of the learned Senior Counsel The learned Senior Counsel also referred to the letter dated 2.4.1993 from the Senior Manager on the same tone. The letter reads as under :

   Ref: PL:DAC:2137        dated: 63.93
 

Shri Y.K. Singla,Chief Manager,  

BO: Sabzi Mandi,  

Delhi.  
 

 Charge Sheet dated 2.2.93 OA served upon you. 
 

Please refer to your letter dated 17.3.93 requesting to permit you to consult relevant files at Zonal Office, Ludhiana and also to extend time for submission of your statement of defense for 2 weeks.

The matter was placed before General Manager, the Disciplinary Authority who has permitted you time upto 15.4.93 to submit your statement of defense. Further, your request for consulting the concerned files at Zonal Office, Ludhiana has not been acceded to by the Disciplinary Authority. As such, we would request you to submit your statement of defense positively by 15.4.93 after consulting the relevant records at the concerned branch only.

32. The learned Senior Counsel for the petitioner submitted that if those files were made available to the petitioner he would have been able to show to the Inquiry Officer

the feasibility report and other noting by the officers concerned of the Zonal Office to show that there is absolutely no transgression of any rules in sanctioning of the rules. The learned Senior Counsel submitted that if the loan was not sanctioned in accordance with the rules, the application for enhancement would have been straightaway rejected and that is one of the facts which would show that there was no violation of any rules at the time of sanctioning of the loan. The learned Senior Counsel submitted that admission made by the Bank while making the claim had not been given the due attention by the Inquiry Officer, the Disciplinary Authority and the Appellate Authority. The reason given by the Disciplinary Authority and the Appellate Authority, that the fact claim had been made by the Bank would not absolve the petitioner is absolutely misconceived and no authority properly instructed in law having regard to the inference drawn from what had been admitted by the Bank would take the view.

33. The learned Senior Counsel for the petitioner submitted that the Bank had committed violation of mandatory provisions in the regulations. Regulation 6(5)(iii) reads as under:

6(5)(iii) a list of documents by which and list of witnesses by whom the articles of charge are proposed to be substantiated:

34. In this, the learned Senior Counsel submitted that Regulation 5(iii) had been infringed by the Bank.

35. In para 40 in the writ petition, the petitioner had alleged:

The petitioner submits with great respect that in accordance with statutory duty/ function, the Disciplinary Authority, respondent 3 herein, has not forwarded the Lists of Documents by which and List of Witnesses by whom the charges were proposed to be substantiated. Regulation 6(5)(iii) of Discipline Regulations is reproduced hereunder:

"(5) The Disciplinary Authority shall, where it is not the Inquiring Authority forward to the Inquiring Authority :

(i) XXX

(ii) XXX

(iii) a list of documents by which and list of witnesses by whom the Articles of Charge are proposed to be substantiated."

36. According to the learned Senior Counsel for the petitioner in para 35 of the counter, the Bank had not denied the position. In para 35 of the counter, it is stated:

"In reply to para 40 it is submitted that the documents relied upon by the Bank in support of the allegations in the charge sheet as well as list of witnesses were placed on the record of the enquiry proceedings by the Presenting Officer who was appointed by the Disciplinary Authority only. Also the Presenting Officer in reply to the question at page 9 of the enquiry proceedings has stated that the Annexures were received by him from the Disciplinary Authority. It is further submitted that copies of the documents placed on the record were also provided to the petitioner and he was also provided an opportunity to inspect the said documents, as is apparent from the proceedings dated 23.12.1994 of the enquiry record. In view of this it is denied that there has been any violation of Regulation 6(5)(iii) of D&A Regulations as alleged or otherwise. In any case it is further

submitted that no prejudice can be said to have been caused to the petitioner on this score. It is further submitted that the case law cited under para under reply is not attracted to the facts and circumstances of the present case and the Bank places its reliance on the decision of the Hon'ble Supreme Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma."

37. The stand taken by the Bank in para 35 of the counter is not sustainable, was the argument of the learned Senior Counsel as great prejudice has been caused to the petitioner. According to the learned Senior Counsel, the sine qua nan for proceeding with me inquiry on the charges against an officer is compliance with the Regulation. The object of the Regulation is to protect officers from being unnecessarily being harassed by the superior officers. The purpose of the Regulation is that the delinquent officer should know the case he is to meet, the document is to consider, witnesses he is to face so that he could fully prepare himself to substantiate his position. That is a basic right given to the officers and that cannot be denied by the Bank. According to the learned Senior counsel for the petitioner, it is a mandate of the Regulations and that cannot be ignored by the Bank. In this case, the charge-sheet was given on 10.2.1993. The petitioner submitted his explanation on 10.9.1993. The Presenting Officer sought to produce the list on 23.4.1994 and that is not a compliance with the mandatory provisions which is referred to above.

38.1 find considerable force in the arguments of learned Senior Counsel for the petitioner and the non-compliance with the Regulation 6(5)(iii) has completely vitiated the whole proceedings.

39. The learned Senior Counsel referred to various irregularities alleged to have been committed by the petitioner dealt with in paras 39, 40, 42, 43, 50, 64, 71, 72, 74, 77 and 81. According to the learned Senior Counsel, it is not necessary to deal with each of them and it is thus only to highlight that the whole approach by the Inquiry Officer, Disciplinary Authority and the Appellate Authority was completely perverse and cannot be sustained in law.

40. The learned Senior Counsel for the petitioner submitted that the Appellate Authority did not give a personal hearing in the matter. In the view I have taken it is not necessary to deal with in this point. The learned Senior Counsel submitted that the Bank had acted with malice in law and therefore, the entire proceedings are vitiated. The learned Senior Counsel stated that in paras 15 to 21 in the writ petition the necessary averments were made in the writ. Paras 15 to 21 are as follows:

"15. The petitioner submits with great respect that the impugned departmental actions are grounded upon enmity which the petitioner earned on account of refusal to recommend unviable and risky proposal of a Bank Guarantee for Rs. 50 lacs desired to be issued by the petitioner's Controlling Authority, i.e., the then Zonal Manager of the respondent-Bank which is the only consideration for the respondent-Bank to take impugned actions against the petitioner, and therefore, all the impugned actions are liable to be quashed by this Hon'ble Court as the purpose of taking the impugned actions travel beyond the scope of the statute which creates the disciplinary power. It is a case of fraud on power and the impugned disciplinary proceedings can not withstand the dictum laid down by a Constitution

Bench of the Hon'ble Supreme Court of India in Partap Singh v. State of Punjab .

16. The petitioner submits with great respect that in the month of July, 1991, the then Zonal Manager, Ludhiana of the respondent-Bank, Shri R.G. Puri desired that the petitioner should recommend a non-viable Bank Guarantee in sum of Rs. 50 lakhs in favour of M/s. Om Prakash & Co-Lottery Agency, Ludhiana. Shri Om Prakash, who was the Proprietor of said Lottery Agency was father of son-in-law of the said Zonal Manager Mr. Puri's sister-in-law. Since the recommendation sought by the said Zonal Manager on the unworkable proposal (devoid of any merit whatsoever) was forced to be given, the petitioner was extremely reluctant in putting his recommendation on the said proposal but when the said Zonal Manager threatened the petitioner of dire consequences, and he was also the immediate superior of the petitioner, on 19.7.1991, the petitioner was forced to put his recommendation on the said proposal for issuance of Bank Guarantee to the tune of Rs. 15 lakhs. It was not at all a viable proposal since was contrary to all banking norms and detrimental to respondent Bank's interest. That is why, the said vindictive Zonal Manager, managed to get the loan proposal of the said client prepared and processed at the Zonal Office itself instead of routing it through Branch which is the first essential postulate/requirement of sanctioning a banking facility including the Bank Guarantee to any customer of the respondent-Bank.

17. The petitioner submits with great respect that it is a matter of unimpeachable record that the aforesaid proposal was directly prepared and entertained by the officials of the Zonal Office at the Zonal Office itself and even without the knowledge and recommendation of the Petitioner it was sanctioned on 18.7.1991 by the Zonal Manager. In order to fill the mouth of the file, in highly irregular manner, the said Zonal Manager obtained recommendation of the petitioner after one day of its sanctioning on 19.7.91 which the petitioner grudgingly made. As duty bound, the petitioner lodged a strong protest against the detrimental functioning of the said Zonal Manager to the higher Authorities of the respondent-Bank. Since the petitioner agitated this act of the said Zonal Manager, there was he and cry in the respondent-Bank.

18. The petitioner submits with great respect that inspite of the fact that respect that inspite of the fact that the aforesaid party should not have been given a Bank Guarantee even for Rs.l, as in accordance with banking norms, there were no such merits to have obliged the said Party, the said Zonal Manager out rightly wanted to unduly oblige the party, knowing fully well that Guarantee for Rs. 1 should not be given. Somehow or the other, going totally out of the way and lending norms, contrary to the respondent-Bank's interest, the said vindictive Zonal Manager gave sanction of Bank Guarantee for Rs. Fifteen Lakhs. This type of dishonest functioning of the Zonal Manager was telephonically reported by the petitioner to the higher Authorities which earned to the petitioner a severe wrath of the Zonal Manager who also was provoked even by good

assistance to him by the Petitioner. A copy of the said Sanction Order dated 18.7.1991 of the Zonal Manager is annexed herewith and marked as 'Annexure P-14'. It is necessary to mention here that the terms & conditions stipulated even in the said Sanction Order by the Zonal Manager, clearly evidence that the said proposal was not at all viable even then the Zonal Manager going totally out of the way sanctioned to the said client Bank Guarantee for Rs. 15 lakhs.

19. The petitioner submits with great respect that for the aforesaid faithful and bona fide action as of the petitioner, the said Zonal Manager developed an enmity as a result of which in order to settle the scores, he made a sinister scheme to ruin the career of the petitioner so that under the garb of deceptive innocuousness he could satisfy his grudge against the petitioner and as such practically for all purposes, the impugned departmental action is the baby of the said sinister scheme of the Zonal Manager and this humble, poor and down-trodden Petitioner is the victim of the said sinister scheme, therefore, the impugned actions are liable to be set aside by this Hon'ble Court on this single ground as well.

20. The petitioner submits with great respect that for the aforesaid happenings, the vindictive Zonal Manager misused and abused his official position and took undue advantage of a system and practice prevalent in the respondent-Bank of mechanically issuance of the Charge Sheets on the basis of the reports of the Zonal Managers. As per the prevalent practice in the respondent-Bank, all the Charge Sheets including the impugned Charge Sheet and supplementary to it herein, are being issued on the basis of a Tabular Proforma submitted by the immediate superiors of delinquents and on the basis of the informations contained in such type of Tabular Proformas, the Disciplinary Authorities are mechanically signing the Charge Sheet prepared by their subordinates.

21. The petitioner submits with great respect that taking undue advantage of the aforesaid vulnerable and deleterious prevalent practice and/or procedure in the respondent-Bank, the said vindictive Zonal Manager, in order to wreck his vengeance, chalked-of a fraudulent device and managed to get prepared a fraudulent Tabular Proforma. In the said Tabular Proforma, the Zonal Manager knownably, incorporated all sorts of fraudulent, misleading and honest matters with a view to settling his grudges against the petitioner. Normal procedure prevalent in the respondent-Bank with regard to disciplinary cases of similarly circumstanced/ situated Chief Managers inevitably postulates that the said Tabular Proforma should be got signed by the delinquents so that the matters reflecting out of it should be authenticated before it is furnished to the Disciplinary Authority. Pertinently submitted, in the case of the petitioner, the Tabular Proforma was kept as "guarded secret" which by itself depicts malafides on the part of the said vindictive Zonal Manager, who is the Chief Architect of the impugned actions. It is necessary to mention here that the vindictive Zonal Manager exhibited extreme haste that he did not put even date on the Tabular Proforma which is the only foundation of impounded

Charge Sheet dated 2.2.1993. A copy of the said undated and unsigned Tabular Proforma is annexed herewith and marked as 'Annexure P-15'."

41. In dealing with this in reply to para 17 the Bank had stated:

"That the contents of para 21 are wrong and denied. It is submitted that Shri Singla was served with Tabular Proforma in respect of irregularities committed by him in respect of loan account of M/s. Balwant Steel Rolling Mills to which he had submitted his reply. Further, he was served with Tabular Proforma in respect irregularities/lapses in the loan accounts of Shri N.D. Awasthi and Mrs. Vijay Awasthi. However, despite having been granted sufficient opportunity he did not submit any reply to the said Tabular Proforma. In any case it is submitted that under the provisions of the D&A Regulations it is not at all essential that an officer employee should be given Tabular Proforma before service of charge sheet upon him for his alleged acts of misconduct under the Conduct Regulations."

42. Annexure P-15 is the document, a tabular statement which should have been given to the petitioner in this case. According to the learned Senior Counsel for the petitioner, such a document was never furnished to the petitioner and not was produced at the time of inquiry which has been filed as Annexure P-15 are completely fabricated by the Bank and the petitioner had not made anything in writing in that tabular statement. Column 1 is the observations by the Bank. Column 2 is a column Delinquent Officer. Column 3 the views and recommendations by the Bank. According to the learned Senior Counsel for the petitioner this tabular statement was prepared by the Bank just for the purpose of inquiry and instead of denial by the petitioner no material had been produced by the Bank to show that it was ever sent to the petitioner for remarks and the petitioner made any such remarks in the tabular report. The presenting officer at the time of inquiry stated "Are you prove it on the basis of the record produced in the inquiry in due course, further though technically there is ro comments of the CO appearing on tabular proforma Annexure D-104 but it was based on the reply/letter submitted by the EO. I will refer this document at appropriate stage".

43. This statement of the Presenting Officer is extracted by the petitioner in his rejoinder. Therefore the present officer admitted that the tabular statement was not sent to the petitioner for signatures. The learned Senior Counsel for the petitioner referred to para 17 of the counter affidavit of the Bank wherein it submitted "that Sh. Singla was served with Tabular Proforma in respect of irregularities committed by him in respect of loan account of M/s. Balwant Steel Rolling Mills to which he had submitted his reply. Further he was served with Tabular Proforma in respect of irregularities lapses in the loan accounts of Shri N.D. Awasthi and Mrs. Vijay Awasthi".

44. Therefore, a wrong statement had been made in the counter affidavit about furnishing of Tabular Proforma as required under the Regulation. I am clearly of the view that there is absolutely no evidence against the petitioner of anyone of the charges levelled against him. This is a clear case of no evidence and the order passed by the Disciplinary Authority, order passed by the Appellate Authority are perverse and no person properly instructed in law would take the view that has been taken by those Authorities.

45. The learned Senior Counsel for the petitioner submitted that having regard to the charges and the way in which the inquiry had been conducted the punishment

imposed is excessive. The learned Senior Counsel referred to Annexures P-1 to P-10 where the merits of the petitioner had been recognised and the certificate had been issued. The learned Senior Counsel submitted that the Bank had not lost anything and the value of the security given is ample and the money due could be recovered from the parties. The learned Senior Counsel referred to the valuation certificate given by the Architects & Engineers (Regd.) Ludhiana wherein it is stated :

It is certified that the valuation of the Industrial property situated at G.T. Road, Near Raja Vanaspati, 10642.0 sq. yards belonging to M/s. Govind Iron Mills Pvt. Ltd. & M/s. Hariom Steel Traders is reasonably assessed in our considered opinion according to the present fair market value as Rs. 3,30,08,000/- only.

46. The learned Senior Counsel submitted that the Disciplinary Authority and the Appellate Authority had acted unreasonable fashion in imposing punishment of removal which comes in mischief of the Article 14 of the Constitution of India. The learned Senior Counsel relied upon the judgment of the Supreme Court in Ex, Naik Sardar Singh v. Union of India and Ors., AIR 1992 SC 417.

47. In para 5 their Lordships of the Supreme Court had observed:

In Council of Civil Service Union v. Minister for Civil Service, (1984)3 All ER 93OA 950 Lord Diplock said:

"judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call "illegality', the second "irrationality' and the third procedural impropriety. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community...."

This principle was followed in Ranjit Thakur v. Union of India, , where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the Army Act and it was observed thus

(at p. 2392 of AIR):

"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

In Bhagat Ram v. State of Himachal Pradesh, , this Court held as under (at p. 460 of AIR):

"It is equally true that the penalty imposed must be commensurate with the

gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution."

47. The learned Senior Counsel for the Bank Mr. A.K. Sikri referred to the judgments of the Supreme Court for the proposition that this Court cannot reappraise the evidence. The learned Senior Counsel referred to Union of India and Ors. v. Upendra Singh, . The Supreme Court reaffirmed its view that judicial review is not directed against the decision but is confined to the decision making process. The learned Senior Counsel referred to Government of T.N. and Anr. v. A. Rajapandian, . In this case, the respondent before the Supreme Court was working as Sub Inspector Police in the State of Tamilnadu. He was promoted to the post of Inspector in the year 1977. Disciplinary proceedings were initiated against him and ultimately he was dismissed from service on 7.2.1994. He challenged the order before the High Court of Madras by filing a writ petition was transferred to the Tamilnadu Administrative Tribunal after its formation. The Tamilnadu Administrative Tribunal set aside the order of dismissal on the ground that the evidence was not sufficient to prove the charges against the Inspector. The Supreme Court held:

"The Administrative Tribunal reached different conclusions from the Inquiring Authority on its own evaluation of the evidence. The Tribunal fell into patent error and acted wholly beyond its jurisdiction."

The Supreme Court had referred to Union of India v. Sardar Bahadur, and Union of India v. Parma Nanda, .

48. The learned Senior Counsel then referred to judgment in B.C. Chaturvedi v. Union of India and Ors., . The appellant before the Supreme Court was dismissed from service by order dated 29.10.1986. That order was challenged before the Central Administrative Tribunal. The Tribunal after appreciating the evidence upheld all the charges as having been proved but came to the conclusion that the order of dismissal was disproportionate to the office committed and modified the punishment into one compulsory retirement. The appellant challenged the findings given by the Tribunal and the Union of India filed an appeal before the Supreme Court canvassing the power of the Tribunal to interfere with the punishment imposed by the Disciplinary Authority. In para 12, the Supreme Court held:

"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 inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry 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 inquiry 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 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 inquiry or when 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 even 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."

49. In paragraph 18 the Supreme Court posited:

"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."

Hansaria, J. concurring with the view taken by K. Ramaswamy, J. held :

"I am in respectful agreement with all the conclusions reached by learned brother Ramawamy, J. This concurring note is to express my view on two facets of the case. The first of these relates to the power of the High Court to do "complete justice", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act.

The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well-settled in law. It may, however, be stated that this power of moulding relief in

cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks 'the judicial conscience."

Hansaria, J. further held :

"What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case (Rustom Cavasjee Cooper v. Union of India, , which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India, , the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P., also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it."

Hansaria, J eventually observed:

"I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra Pallai v. Union of India , by asking why the power of doing complete justice has been denied to the High Courts. I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment."

50. The learned Senior Counsel Mr. A.K. Sikri referred to State of Tamil Nadu and Anr. v. S. Subratnaniam, JT 1996 (2) S.C. 114. The respondent before the Supreme Court was removed from service. He challenged the order before the State Administrative Tribunal. The Tribunal appreciating the evidence came to the conclusion that the evidence adduced was not cogent and the Department had not proved the charges satisfactorily and on that ground set aside the order of removal. That was taken up before the Supreme Court. The Supreme Court held:

"When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is consistent view of this Court vide B.C. Chaturvedi v. Union of India , State of Tamil Nadu v. T. V. Venugopalan , Union of India v Upendra Singh , Government of Tamil Nadu and Anr. v. A. Rajapandian and Union of India v. B.S. Chaturvedi . In view of the settled legal position, the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is ex facie illegal. The order is accordingly set aside."

51. The learned Senior Counsel Mr. A.K. Sikri referred to State of U.P. and Ors. v.

Nand Kishore Shukla and Anr., . The respondent before the Supreme Court challenged the order of his removal from service Tribunal unsuccessfully. But the order of removal was set aside by the High Court in a writ petition filed by the employee. The Supreme Court held that the order of removal did not cast any stigma on the employee to disable him to seek any appointment elsewhere and held that the High Court was wholly wrong in setting aside the order of removal.

52. The learned Senior Counsel Mr. A.K. Sikri refitted to Rai Bareli Kshetriya Gramin Bank v. Bhole Nath Singh and Ors., . The respondent before the Supreme Court was dismissed from service. He filed a writ petition in the Allahabad High Court. The learned Single Judge found that the charges had not been proved and set aside the order of punishment of dismissal from service. The Supreme Court noticed the facts in the following terms:

"Having regard to the respective contentions, the only question that arises for consideration is : whether the conclusion reached by the High Court is correct in law? It is not in dispute that the procedural steps under the disciplinary rules, required by the appellant, have been followed. After the enquiry was concluded and report was submitted, the Disciplinary Authority had given him a show-cause notice to the proposed punishment and the respondent also submitted his explanation. After consideration of the report and the reply, the punishment of dismissal was imposed by the Disciplinary Authority against which an appeal was filed. At this stage, he made an application for summoning the witnesses afresh. That application was dismissed by the Appellate Authority. This order also was allowed to become final. The appeal was dismissed by the Board."

Dealing with the position of law, the Supreme Court held:

"Under these circumstances, the question arises: whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence as examined and to record a finding in that behalf ? The judicial review is not akin to adjudication of the case on merits as an Appellate Authority. The High Court, in the proceedings under Article 226 does not act as an Appellate Authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of national justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a Court of first appeal and reversed the finding of fact recorded by the Enquiry Officer and accepted by Disciplinary Authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained."

The ratio descend discernible from the above decisions of the Supreme Court can not at all be disputed. What is pointed out by the Constitution Bench of the Supreme Court in Union of India v. H.C. Goel, , has to be borne in mind? The Supreme Court held:

"It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."

53. The learned Senior Counsel Mr. Sikri in his written arguments had given Annexures A & B highlighting the charges and the findings by the Inquiry Officer and the Appellate Authority and also broad features of the case of the petitioner in the writ petition and the reply given by the Bank. Annexure-A is as follows:

Shri Y.K. SINGLA - W.P. No.3940/97 BEFORE HON'BLE HIGH COURT

Charge Sheet dt . 2.2.93/4.11.93 Findings of the enquiry officer Order of the Appellate Authority

1. Charge No1-B Diesel Generator Set of 300 KW was propo sed to be utilised as an alternate arrange ment of power supply but the electric power available with the party was just 98.76 KW against the actual requirement of 400 KW (Pg. 163 of Paper-Book) The charge stands proved to the extent that the unit was proposed to be uti lised as an alter nate arrangement of power supply but the electric power available was just 98.76 KW against the actual requirement o f 400 KW.

(Pg. 165 of Paper - Book) The unit was not having requisite power load.

(Pg. 283 of Paper-

Book)

2. Charge No.1(e) failed to take cognizance of the fact that the Directors of the Company were not experienced in the line.

(Pg.169 of Paper The applicants them selves mentioned in the application that they have experience in trading of products proposed to be manufactured which implies that they did not have requisite experience in the manufacturing of the proposed product.

(Pg.l69-170 of the Paper-Book).

Page 284 of Paper-

Book.

3. Charge No.1(f) did not ensure availability of requisite margin with the party.

The party has NWC of 1.27 lacs as per provisional balance sheet as on 5.3.90 & 3.67 lacs as on 31.3.90 against required NWC of 13.47 lacs.

(Pg.170 of Paper -Book).

Shri Singla did not ensure availability of the requisite margin with the party. (Pg. 175 of the Pape r Book).

Page 284 of Paper-Book.

Contents of Petition Reply

1. Bank has made admission before DI & CGC that there is no irregularity committed by its officials.

This relates to insurance against bad-debts. The pur pose is entirely different i.e. of claiming the money that has become bad. If at the time of filling the form some officials of the Bank has written something, it is of no consequence and does not mean that no irregularity has been committed by an official. The charge against Shri Singla has been proved by departmental enquiry on the basis of evidence produced there which alone is material. Even if any such certificate was given it was by the Chief Manager, Civil Lines Ludhiana Branch on 10.3.93 whereas the charge-

sheet was issued to Mr. Singla by General Manager on 2.2.93 when Shri Singla was posted at Delhi. Further in the instant case, even the DI & CGC rejected the claim of the Bank attributing it to the negligence of the official of the Bank.

2. No hearing was given before passing of orders by the appellate Authority (1986 SC 1173 to 1182, para 24). Even though Shri Singla has specifically requested for the same.

The statute does not provide for providing hearing before passing order by the Appellate Authority. Other wise, the principles of Natural Justice can be excluded by specific provisions in the rules.

(Relied on Tulsi Ram Patel 1985 SC 1416).

3. There is no loss in the Account.

Even if there is profit in the account, the charge-sheeted officer is liable For the irregularities. Even if there is no loss in the account is immaterial.

(Relied on 1996 CLR (1) 991).

4. The Disciplinary Authority has not passed any specific order on the point that the generator was used for pro ducing 300 KW of Electricity when the power sanctioned was for 100 KW and there was demand notice for 400 KW.

Because of Gulf War there was shortage of Diesel; hence difficulties in running the unit.

Where the Disciplinary Authority agrees with the findings of the enquiry officer, it is not necessary for it

to pass any specific order.

Further, the court should not re-appreciate the evidence and pass orders. Moreover, this aspect has been discussed by the Appellate Authority on page 8 of its order dated 26.6.97 (page 283 of the Paper-Book).

Relied on 1994 (1) LLJ 808 JT 1996 (2) SC 114."

This would not in any way advance the case of the Bank and I have dealt with these aspects above.

54. The learned Senior Counsel for the petitioner submitted that the punishment imposed is out of proportionate to the offence said to have been made out and the Disciplinary Authority had not taken into clean the perfect service record of the petitioner for 38 years.

55. As I have come to the conclusion that no offence has been made out against the petitioner, it is not necessary to go into the quantum of punishment

56. The order passed by the Disciplinary Authority dated and the order passed by the Appellate Authority are quashed. The petitioner shall be entitled to all consequential benefits. The writ petition stands allowed. There shall be no order as to costs.