Jharkhand High Court

Gauor Kumar Das vs State Bank Of India on 8 October, 2021

                                   1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      L.P.A. No. 477 of 2019
                                With
                      I.A. No. 794 of 2021

                      ------

Gauor Kumar Das, aged about 35 years, son of Kalachand Das, resident of Village-Dumra, P.O.- Nawagarh, P.S- Baghmara, District - Dhanbad.

....Appellant/ Petitioner Versus

1.State Bank of India, Corporate Office at: 212, Fee Press Journal Marg, P.O & P.S.:- Nariman Point, Mumbai - 400021.

2.Deputy General Manager, (Business Office) State Bank of India, Zonal Office, Bank More, P.O & P.S. - Bank More, District - Dhanbad.

3.Regional Manager, State Bank of India, Regional Business Office, Rajshila Kusum Apartment, Lubi Circular Road, Dhanbad, P.O & P.S. - Dhanbad, District - Dhanbad;

.... Respondents/Respondents CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE AMBUJ NATH

-----

For the Appellant : Mr. Abhay Kumar Mishra, Advocate For the Respondents : Mr. Pratiyush Kumar, Advocate Mr. Prashant Kumar Sinha, Advocate

-------

Oral Judgment Order No. 6: Dated 8thOctober, 2021:

I.A. No. 794 of 2021

This Interlocutory Application has been filed for

condoning the delay of 115 days, which has occurred in

preferring this appeal.

2. Heard learned counsel appearing for the parties.

3. Having regard to the facts and circumstances as

mentioned in the application and also considering the

facts that no counter affidavit has been filed opposing

the interlocutory application by the respondents, we are

of the opinion that the appellant was prevented by

sufficient cause from preferring the appeal within the

period of limitation.

4. Accordingly, I.A. No. 794 of 2021 is allowed and

delay of 115 days in preferring the appeal is condoned.

L.P.A. No. 477 of 2019

5. The instant intra-court appeal under Clause 10 of

Letters Patent is preferred against the order/judgment

dated 23.01.2019 passed by learned Single Judge in

W.P. (S) No. 6740 of 2017, whereby and whereunder the

learned Single Judge by dismissing the writ petition has

refused to interfere with the order of dismissal imposed

by the disciplinary authority vide order dated

14.12.2016 as also appellate order dated 29.03.2017

affirming the order passed by the disciplinary authority.

6. The brief facts of the case, as per the pleadings

made in the writ petition, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

The appellant-writ petitioner was appointed as

Assistant in State Bank of India, after going through the

written examination and interview, vide appointment

letter dated 31.12.2012. Thereafter, he was sent for

training and after completion of training, he started to

discharge his duties as Assistant.

However, on the basis of finding of the

investigation report, explanation was sought for from the

writ petitioner-appellant vide memo dated 07.08.2015,

as to why a proceeding should not be initiated against

him for committing alleged offence in recruitment

process, to which he replied denying the allegation

leveled against him, which was found not satisfactory.

Pursuant thereto, a departmental proceeding was

initiated against the writ petitioner-appellant, in which

he appeared and submitted his written statement of

defence. However, the enquiry officer, after considering

the materials available, oral and documentary, found the

charges leveled against the petitioner proved, which was

accepted by the disciplinary authority, who imposed the

impugned punishment of dismissal from service vide

letter dated 14.12.2016, against which the petitioner,

preferred appeal, which was also dismissed vide order

dated 29.03.2017.

Being aggrieved with order of dismissal from

service passed by the disciplinary authority and

appellate authority, the writ petitioner-appellant

approached this Court by invoking the writ jurisdiction

of this Court under Article 226 of the Constitution of

India by filing writ petition being W.P. (S) No. 6740 of

2017, wherein the learned Single Judge after hearing

learned counsel after taking into consideration the rival

submissions of the parties, dismissed the writ petition

showing no interference with the order of punishment,

which is the subject matter of present intra-court

appeal.

7. Mr. Abhay Kumar Mishra, learned counsel for the

writ petitioner-appellant has submitted that there is

inherent irregularity in the departmental proceeding

since according to him, without any evidence the finding

has been recorded by the enquiry officer and therefore,

the order of dismissal since is based upon the aforesaid

finding of the enquiry officer wherein evidence has not

been considered, the order of dismissal is not

sustainable in the eyes of law but the learned Single

Judge has failed to appreciate these aspects of the

matter, as such the order passed by the learned Single

Judge is not sustainable in the eyes of law.

8. Mr. Pratiyush Kumar, learned counsel being

assisted by Mr. Prashant Kumar Sinha, learned counsel

for the respondents-Bank has submitted that there is no

error in the order passed by the learned Single Judge, as

according to him, under the power conferred under

Article 226 of the Constitution of India the writ Court

cannot interfere with the conclusive finding arrived at by

enquiry officer on the basis of Central Forensic

Laboratory Report and the report of Criminal

Investigation Department (CID) of the State and based

upon the same the enquiry officer has found the charge

of impersonation against the writ petitioner proved.

Therefore, according to him since the fact finding is

based upon the cogent evidence and the writ petitioner

was also provided with due opportunity to defend his

case, the submission of learned counsel for the appellant

cannot be said to be correct, as would be evident from

enquiry report. Hence, the order passed by the learned

Single Judge needs no interference by this Court.

9. We have heard learned counsel for the parties,

perused the documents available on record as also

finding recorded by the learned Single Judge.

10. We, before going into the legality and propriety of

the impugned order, deem it fit and proper to refer

certain admitted facts, which is required for adjudication

of the lis:

The writ petitioner claims to have participated in

the written examination conducted for appointment on

the post of Assistant and Stenographer in State Bank of

India, in which, it is alleged that he was declared

successful. Thereafter, he was called for interview and

on being declared successful, he was appointed vide

letter dated 31.12.2012 as Assistant in State Bank of

India, where after completion of training he started to

discharge his duties.

While discharging his duties, on the basis of a

complaint and finding of the investigation report that the

writ petitioner-appellant has never appeared in the

written test conducted for recruitment process of

Assistants & Stenographers held on 03.06.2012,

however, he appeared for interview only held on

18.08.2012, an explanation was sought for from the writ

petitioner-appellant vide memo dated 07.08.2015, as to

why a proceeding should not be initiated against him

for committing offence of impersonation in recruitment

process, to which he replied denying the allegation

leveled against him, which having been found not

satisfactory departmental proceeding was initiated

against the writ petitioner-appellant for the following

charges:

"It has been decided to initiate Disciplinary Action for the charges against you that you never appeared in the written test conducted for recruitment process of Assistants & Stenographers held on 03.06.2012. You appeared at the time of interview only which was scheduled on 18.08.2012.

2.An unfair use of immortal practice had allegedly been committed by you in the written examination conducted for recruitment process of Assistants & Stenographers held on 03.06.2012. GEQD, Kolkata has opined that standard signatures obtained by the Branch Manager, Maharajganj dated 01.10.2013 as well as in interview dated 18.08.2012 differs with the questioned signatures obtained in written examination dated 03.06.2012. Hence, impersonation can not be denied in the instant case.

3.The above charges, if established, would amount to 'Gross Misconduct' in terms of 5 (m) & 5 (o) Memorandum of settlement of Disciplinary Action for Award Staff dated 10.04.2002.

4.You are, therefore, instructed to submit your written statement of defence of the above charges in writing to the undersigned within 10 days from the date of receipts of the memorandum, failing which it will be presumed that you have no reply to submit in this regard and the Bank shall proceed accordingly.

5.If you so desire, you may peruse the related records/papers of the case at the Regional Business Office, Dhanbad and take notes without any photocopy thereof in the uninterrupted presence of the Manager (HR)/his autorised representative.

6.Meanwhile, acknowledge receipt of this memorandum on the duplicate with your full signature and date."

The writ petitioner participated in the proceeding,

and submitted written brief of defence but the enquiry

officer on the basis of report submitted by GEQD

(Government Examiner of Questioned Documents) on

the issue of difference in signature/handwriting and

further report on difference of thumb impression of the

writ petitioner, as submitted by the government agency,

has found the allegation leveled against the petitioner

proved, which was placed before the disciplinary

authority. The disciplinary authority after taking into

consideration the reply submitted by the petitioner as

also the finding recorded by the enquiry officer inflicted

the punishment of dismissal from service vide order

dated 14.12.2016, against which the writ petitioner

preferred appeal which stood dismissed vide order dated

29.03.2017.

11. We have gone through the finding recorded by the

enquiry officer wherefrom it is evident that enquiry

officer, after considering the report submitted by GEQD,

Kolkata, who has opined that standard signature

obtained by the Branch Manager, Maharajganj dated

01.10.2013 as well as interview dated 18.08.2012 differs

with the questioned signature obtained in written

examination dated 03.06.2012 and further considering

the report of Finger Print of Forensic Lab, CID, Patna,

who has opined that standard thumb impression

obtained by the Branch Manager, Maharajganj as well as

in interview dated 18.08.2012 differs with the

questioned thump impression obtained in written

examination dated 03.06.2012 and other relevant

documents and reply submitted by the writ petitioner,

has found the charges leveled against the petitioner

proved and forwarded the said finding to the disciplinary

authority based upon which the impugned order of

dismissal from service was inflicted upon the writ

petitioner.

12. The question herein is that whether the High Court

sitting under Article 226 of the Constitution of India by

exercising power of judicial review can interfere with the

fact finding recorded by enquiry officer, being accepted by

the disciplinary authority and confirmed by the appellate

authority, by re-apprising the evidence?

13. This Court before answering this question deem it

fit and proper to refer certain judicial pronouncements of

the Hon'ble Supreme Court on the scope of judicial

review in exercise of power conferred under Article 226

of the Constitution of India.

Reference in this regard be made to the judgment

rendered in Union of India & Ors Vs. P. Gunasekaran

[AIR 2015 SC 545] wherein at paragraph 13, the

following guidelines has been laid down for showing

interference in the decision taken by the disciplinary

authority and not to interfere with the decision, which

reads hereunder as:

"13.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer.

The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

The Hon'ble Apex Court in the case of

Management of State Bank of India vs. Smita

Sharad Deshmukh and Anr. [(2017) 4 SCC 75], has

laid down therein that it is equally settled position of law

that the High Court sitting under Article 226 of the

Constitution of India can certainly interfere with the

quantum of punishment, if it is found disproportionate

to the gravity of offence.

The Hon'ble Apex Court in Central Industrial

Security Force and Ors. vs. Abrar Ali [(2017) 4 SCC

507], has laid down the guidelines at paragraphs 13 and

14 showing interference by the High Court in the matter

of punishment imposed on conclusion of the

departmental proceeding, which is quoted herein below:

"13.Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.

14.In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:

"7.It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."

14. Thus, it is evident from the judicial

pronouncements of the Hon'ble Apex Court, as referred

herein above, that the judgments have been pronounced

to lay down the guidelines of exercising power of the

High Court under Article 226 of the Constitution of India

in exercise of power of judicial review, as per which, the

High Court can interfere sitting under Article 226 of the

Constitution of India under power of under judicial

review in any of the eventualities as propounded in the

judgments referred herein above.

15. Admittedly, in the case in hand the enquiry officer

has come to the conclusive finding, after taking into

consideration the report submitted by GEQD, Kolkata,

who has opined that standard signature of the petitioner

differs in the written examination and interview and also

considering the report of Finger Print of Forensic Lab,

CID, Patna, who has opined that standard thumb

impression obtained by the Branch Manager,

Maharajganj as well as in interview differs with the

questioned thump impression obtained in written

examination, that the charges leveled against the writ

petitioner has proved which was accepted by the

disciplinary authority by imposing punishment of

dismissal from service and has been affirmed by the

appellate authority, as such no interference is required

in the fact finding recorded by the administrative

authorities.

16. We are, therefore, of the view that the writ

petitioner has failed to make out a case showing

interference by this Court under Article 226 of the

Constitution of India by exercising the power of judicial

review as per the proposition of law laid down in Union

of India Vs. P. Gunasekaran (supra) and Central

Industrial Security Force and Ors. vs. Abrar Ali

(supra).

17. Now the argument has been advanced by learned

counsel for the writ petitioner-appellant that finding of

the enquiry officer is based on no evidence but we after

going through the enquiry report has found that

sufficient evidence was placed before the enquiry officer

by way of report of GEQD, Kolkata with respect to

signature and report of Finger Print of Forensic Lab,

CID, Patna, which was not questioned before the writ

Court or before any appropriate forum, meaning thereby

the same reports having been accepted by writ

petitioner, now it is not available for the writ petitioner

to question the finding recorded by the enquiry officer.

18. The learned Single Judge, after taking into

consideration the aforesaid aspects of the matter and

considering the evidence, as referred herein above, since

has refused to interfere with the impugned order of

punishment taking into consideration the seriousness of

nature of allegation which pertains to impersonation in

the examination conducted by the selection committee

for screening of the candidates for their appointments in

the bank. However, he has appeared in the interview,

therefore, according to our considered view also the

allegation leveled against the petitioner, which has been

found by the enquiry officer as serious in nature, save

and except the order of dismissal no order could have

been inflicted by the disciplinary authority, which we are

saying for the reason that the writ petitioners committed

fraud.

19. It is settled position of law that fraud vitiates

everything. Forgery avoids all judicial acts, ecclesiastical

or temporal. The Hon'ble Apex Court while considering

the ambit of forgery in Devendra Kumar Vs. State of

Uttaranchal and Ors., [(2013) 9 SCC 363] has

observed at paragraph Nos.13, 14, 15, 16 and 17 as

follows:-

"13.It is settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of law, "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. V. Beasley the Court observed without equivocation that: (QB p. 712) [13] ".......No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."

14.In A.P. State Financial Corpn. Vs. GAR Re-Rolling Mills and State of Maharashtra Vs. Prabhu this Court has observed that a writ court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."

15.In Shrisht Dhawan v. Sahw Bros., it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

16.In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana.

17.In Ram Chandra Singh v. Savitri Devi this Court held that "misrepresentation itself amounts to fraud."

20. Thus, the ratio laid down by the Hon'ble Apex

Court in the judgments referred hereinabove lay down

that dishonesty should not be permitted to bear the fruit

and benefit those persons who have committed fraud or

misrepresented, in such circumstances, the Court

should not perpetuate the fraud by entertaining

petitions on their behalf.

21. We, on the basis of entirety of facts and

circumstances of the case, are of the considered view

that the order passed by the learned Single Judge

suffers from no infirmity, as such no interference is