Shashi Shekhar vs Bank Of India
2022 Latest Caselaw 4339 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 W.P.(S) No. 3760 of 2020

                Shashi Shekhar, aged about 43 years, son of Rajeshwar Sharma,
                resident of Sahajanand Nagar, Bhuda, Dhanbad, P.O., P.S. & District
                - Dhanbad                                   ...     ...     Petitioner
                                         Versus
                1. Bank of India, a Government of India Undertaking, through the
                   Deputy Manager & Zonal Manager, Dhanbad Zone, having office
                   at S.R. Mansion, 2nd Floor, Shashtri Nagar, Dhanbad, P.O., P.S. &
                   District - Dhanbad
                2. Assistant General Manager & Deputy Zonal Manager, Dhanbad
                   Zone, Bank of India, having office at S.R. Mansion, 2 nd Floor,
                   Shashtri Nagar, Dhanbad, P.O., P.S. & District Dhanbad
                                                      ...        ...      Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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                For the Petitioner    : Mr. Manoj Tandon, Advocate
                                      : Ms. Sneha Kumari, Advocate
                                      : Ms. Neha Bhardwaj, Advocate
                                      : Ms. Akansha Priya, Advocate

For the Respondents : Mr. A. Allam, Senior Advocate : Ms. Asfia Sultana, Advocate

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02/01.11.2022 Heard Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. A. Allam, learned counsel appearing on behalf of the respondents along with Ms. Asfia Sultana, Advocate.

3. This writ petition has been filed for the following relief:

"(i) To quash and set aside the penalty order dated 9.3.2018 (Annexure - 5) passed by the respondent no.2, whereby and whereunder, the petitioner has been dismissed from service.

(ii) To also quash and set aside the appellate order dated 9.10.2018 (Annexure- 8) passed by respondent no.1, whereby and whereunder, the appeal preferred by the petitioner was disposed of without giving any relief to the petitioner and confirming the order of dismissal of the petitioner from service.

(iii) To direct the respondents to reinstate the petitioner in service with all consequential benefits including the back wages."

4. Learned counsel for the petitioner while giving the background of the case has submitted that the petitioner was appointed as Class IV employee in the respondent bank as back as in the year 1998 and by virtue of his hard work, he was promoted to the post of clerk on 01.09.2007 and further promoted to the post of Officer Scale - I on 01.02.2017. However, on 09.10.2017, he was issued a memo of charge for alleged incident which had taken place as back as on 01.02.2016 while he was working as Clerk cum Cashier. Learned counsel submits

that as per the records of the case, the petitioner was found guilty of the charges levelled against him and he was ultimately inflicted with the punishment of dismissal which shall ordinarily be a disqualification for future employment. The petitioner filed an appeal and the appeal was also dismissed.

5. Learned counsel submits that primarily two points are involved in the present case for consideration; Firstly, by referring to para 15 of the writ petition, he submits that two officers namely Chandan Kumar Tamarkar, Manager of the concerned branch and Smt. Chandana Kumari, Officer Scale - I were also proceeded departmentally in relation to the same delinquency, but these two persons were imposed penalty of stoppage of one increment only with cumulative effect and the petitioner has been dismissed from service. He submits that the other two co-delinquents have been retained in service and the petitioner having been dismissed, no parity in the matter of punishment has been maintained by the respondent - bank.

6. Learned counsel has relied upon the judgment passed by Hon'ble Supreme Court reported in (2013) 3 SCC 73 (Rajendra Yadav Vs. State of M.P. & Ors.), para 8 to 12, to submit that the doctrine of equality applies to all who are equally placed and even among persons who are found guilty.

7. Learned counsel while advancing the second point has submitted that the punishment imposed upon the petitioner is too harsh and disproportionate to the charges levelled and proved against the petitioner. He submits that the present age of the petitioner is only 43 years and therefore otherwise also, the punishment calls for interference by this Court. Learned counsel has also submitted that although the incident was of the year 2016, but the charge memo was issued to the petitioner after expiry of more than 1 ½ years when the petitioner was already granted further promotion to Officer Scale - I.

8. Learned counsel for the respondents, on the other hand, has vehemently opposed the prayer of the petitioner and has submitted that the allegation against the petitioner was very serious and the charge having been proved, the petitioner was given appropriate punishment of dismissal. He also submits that even the appellate authority has upheld the order of punishment.

9. Learned counsel further submits that the scope of interference in the matter of disciplinary proceeding is very limited particularly when it relates to the bank and the delinquent is found guilty of inappropriately dealing with the public money. Learned counsel while advancing his arguments on the point of parity has submitted that so far as other two delinquents are concerned, the gravity of allegation against them was less than that of the petitioner. He submits that the petitioner was directly involved and was the beneficiary of the money which was fraudulently taken out through the ATM of a customer of the bank. Learned counsel has submitted that it has been stated in para 20 of the counter-affidavit that the other two persons who were proceeded against, have not been given major punishment because they were put in confidence by the writ petitioner while issuing ATM card and PIN number and the punishment has been imposed as per the gravity of charge levelled and proved against the petitioner. He further submits that the petitioner has been given adequate punishment and no interference is called for even in the quantum of punishment.

10. The law with regard to interference in the matter of disciplinary enquiry is now well settled and has been summarized by the Hon'ble Supreme Court in the case reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) para-25 to 30, which is quoted as under: -

"I. Scope of judicial review in service matters

25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

26. These principles are succinctly elucidated by a three-Judge Bench of this Court in B.C. Chaturvedi v. Union of Indiain the following extract: (SCC pp. 759-60, paras 12-13) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives

fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal concerned is 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 the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at SCR pp. 728-29 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:

(i) State of T.N. v. S. Subramaniam.

(ii) Lalit Popli v. Canara Bank.

(iii) H.P. SEB v. Mahesh Dahiya.

28. It is thus well settled that the constitutional courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon this very evidence and was detailed and well-reasoned. Furthermore, the High Court did not restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.

30. Even in general parlance, where an appellate or reviewing court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed insofar as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder."

11. After hearing the learned counsels for the parties and considering the facts and circumstances of this case, this Court finds that at the relevant point of time, the petitioner was working as Clerk cum Cashier. It was alleged that on 01.02.2016, he unauthorizedly collected ATM cum debit card issued in the name of a customer of the bank namely Sri Chitu Mahto by forging his signature in ATM issue register. Thereafter, on 05.02.2016, a request letter dated 05.02.2016 containing forged signature of Chitu Mahto was presented and insta PIN in respect of the ATM card was issued. It was also alleged that the petitioner made entry in the system for issuance of insta PIN for the said ATM cum debit card and took possession of the insta PIN on a forged signature of Chitu Mahto appearing in ATM PIN issue register and thereafter the petitioner fraudulently withdrew cash aggregating to Rs.6,27,640/-during the period from 08.02.2016 to 09.03.2016 from the saving bank account of Chitu Mahto by unauthorizedly using ATM cum debit card of Chitu Mahto.

12. The petitioner participated in the disciplinary proceeding. The enquiry officer opined that the charge was proved against the petitioner. The disciplinary authority, after considering the materials

and following the procedure passed the impugned order of punishment of major penalty of 'dismissal which shall ordinarily be a disqualification for future employment'. The disciplinary authority while passing the order of punishment has recorded that the charges proved against the petitioner are quite grave and serious in nature and the charge proved against the petitioner showed lack of integrity and dishonesty and continuance of the petitioner in services of the bank was risky. The petitioner filed an appeal which was also dismissed by a well-reasoned order dated 09.10.2018. This Court finds that the appellate authority has passed a reasoned order taking into consideration all the aspects of the matter.

13. The petitioner has annexed the memorandum of appeal as well as the reminder for disposal of the appeal as contained in Annexure - 6 and 7 of the writ petition. However, upon a query made to the learned counsel for the petitioner, he has fairly submitted that no such ground of parity or comparison with other co-delinquents has been taken by the petitioner before the appellate authority. However, the petitioner has taken a ground of parity in the writ petition at para 15 and 20 and has stated that two officers namely Chandan Kumar Tamarkar, Manager of the concerned branch and Smt. Chandani Kumari, Officer Scale - I were also proceeded departmentally in relation to the same delinquency and they were imposed penalty of stoppage of increment and were retained in service. To this, the respondents have stated that the petitioner has been punished considering the gravity of charge levelled and proved against the petitioner. However, neither the charge memo nor the order of punishment with regard to the other two officers have been placed on record by the writ petitioner before this Court. This Court also finds that direct allegation was made with regard to fraudulent act of the petitioner of obtaining the ATM and PIN number of one customer of the bank and it was specifically alleged and proved in the enquiry proceedings that it was the petitioner who had taken out the money through the ATM of the said customer. The said allegations stood proved against the petitioner. This Court is of the considered view that on account of specific and direct allegation made and proved against the petitioner, the case of the petitioner cannot be compared with other

two officers who were the Manager and the Officer Scale I. Further, the other two persons were not subjected to enquiry along with the petitioner and their charge sheet and the order of punishment have also not been filed by the petitioner. The judgment which has been relied upon by the petitioner reported in (2013) 3 SCC 73 (supra) clearly lays down at para 9 that the doctrine of equality applies to all those who are equally placed. Para 9 of the aforesaid judgment is quoted as under:

"9. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences."

14. This Court is of the considered view that the petitioner cannot be said to have been equally placed with the other two delinquents; one was the Manager and other was Officer Scale - I, in view of the aforesaid facts and circumstances of this case where there is direct and specific allegation levelled against the petitioner for withdrawing the money of a customer by fraudulently obtaining his ATM card, PIN number and himself withdrawing the money through such ATM card and PIN number. Thus, in view of direct and specific allegation levelled and proved against the petitioner, the aforesaid judgment on the point of parity in the matter of punishment, does not apply to the facts and circumstances of this case. Accordingly, the plea raised by the petitioner regarding parity in the matter of punishment is hereby rejected as the petitioner cannot be said to be equally placed with other co-delinquents.

15. So far as the quantum of punishment is concerned, this Court finds that the allegation proved against the petitioner regarding fraudulent withdrawal of money from the account of the customer of the bank amounting to Rs.6,27,640/- is a very serious charge. This Court is of the considered view that the punishment imposed is commensurate with the proved charge and therefore no interference is

called for on the quantum of punishment. No other point, except the point of parity in the matter of punishment and on the quantum of punishment has been argued on behalf of the petitioner. This Court finds no merit in both the points argued by the petitioner. There is no illegality or perversity in the impugned procedure and order of punishment passed by the disciplinary authority and upheld by the appellate authority calling for any interference in the limited writ jurisdiction under Article 226 of the Constitution of India. Accordingly, the present writ petition is dismissed.

16. Pending interlocutory application, if any, stands closed.

(Anubha Rawat Choudhary, J.) Saurav