Madras High Court
S.Karuppiah vs The Chairman And Managing ... on 25 January, 2021
W.P(MD)Nos.2782 and 2783 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.01.2021
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P. (MD) Nos.2782 and 2783 of 2011
S.Karuppiah ... Petitioner in both W.Ps.
Vs.
1.The Chairman and Managing Director,
Indian Bank, Head Office,
No.66, Rajaji Salai,
Chennai – 600 001.
2.The General Manager/Reviewing Authority,
Head Office,
Indian Bank,
No.66, Rajaji Salai,
Chennai – 600 001.
3.The Deputy General Manager/
Appellate Authority,
Vigilance Department,
Head Office,
Indian Bank,
No.66, Rajaji Salai,
Chennai – 600 001.
4.The Assistant General Manager/
Disciplinary Authority,
Circle Office, Indian Bank,
Trichy – 01, Trichy District. ... Respondents in both W.Ps.
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5.The Chief Manager (HRM),
Indian Bank, Head Office,
HRM Department – Settlement Section,
No.66, Rajaji Salai,
Chennai – 600 001. ... 5th Respondent in W.P.(MD)No.2782 of 2011
Prayer in W.P.(MD)No.2782 of 2011 : Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of
Certiorarified Mandamus, to call for the records pertaining to the Impugned
Order in HO/HRM/SETT dated 18.11.2010 on the file of the respondent No.
5 and quash the same as illegal and consequently to direct the respondents
No.1-5 to provide all service benefits namely the Provident Fund under the
Bank's Contribution, Gratuity Amount, Privilege Leave Encashment,
Encashment of Half Pay Sick Leave and other monetary benefits to the
petitioner within a time stipulated by this Court.
Prayer in W.P.(MD)No.2783 of 2011 : Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of
Certiorarified Mandamus, to call for the records pertaining to the Impugned
Order in TCO: DP:O:20:204:2008-09 dated 11.11.2008 on the file
of the respondent No.4 and subsequent order of the appellate authority in
Ref:Co/VIG/APP/3071/TRY/2009-10 dated 30.10.2009 on the file of the
Respondent No.3 and the order of the Reviewing Authority in
170/REV:TRY:VG:2010-11 dated 12.08.2010 on the file of the Respondent
No.2 and quash the same as illegal and consequently to direct the
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respondents No.1-4 to directed to provide all the consequential service
benefits and other costs and charges to the petitioner.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.Jayesh Dolia, Senior Counsel,
For M/s.Aiyar & Dolia for RR-2, 3 & 5
No appearance for RR-1 and R4.
COMMON ORDER
Both the Writ Petitions have been filed by the very same petitioner
and the issue involved in both the petitions being interconnected, they are
disposed of by this common order.
2.The case of the petitioner is that he was appointed as Clerk in the
respondent Indian Bank at Pudukkottai in the year 1975. The petitioner was
promoted as Assistant Manager and then to the post of Manager. Between
18.04.2001 and 16.06.2005, the petitioner was working as Branch Manager
at Woraiyur Branch, Trichy, whereinafter, the petitioner was transferred to
Rock Fort Branch, Trichy. Thereafter, the petitioner was working as Senior
Manager on deputation from August 2006.
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3.While so, the petitioner received a show cause notice dated
05.05.2007 from the fourth respondent stating that he had committed certain
procedural lapses in pre-sanction appraisal and post-sanction follow-up
relating to 67 Home Loan Accounts sanctioned by him. The petitioner gave
his reply dated 28.05.2007. Thereupon, the fourth respondent issued
another show cause notice dated 18.08.2007 calling upon the petitioner to
submit his reply for the same charge on the ground that salary certificates of
the borrowers were bogus. The petitioner submitted a detailed explanation
for the same to the fourth respondent stating that he had sanctioned home
loans to the salaried class employees/the captioned borrowers on the
production of their original salary certificates. In the meanwhile, he was
suspended from service on 04.02.2008 in terms of Regulation 12(1) of
Indian Bank Officer Employees' (Discipline and Appeal) (Amendment)
Regulations, 1985. Four charges were levelled against the petitioner. He
denied all the allegations made against him vide explanation letter dated
28.02.2008. Thereafter, the fourth and fifth respondents were appointed as
Inquiry Officer and Presenting Officer.
4.The inquiry officer conducted enquiry and submitted his report on
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11.08.2008 holding all the charges proved. Subsequent to the submission of
the enquiry report, another show cause notice dated 09.09.2008 was issued
to the petitioner calling upon him to give his reply to the findings recorded
in the enquiry proceedings to which the petitioner submitted his explanation
dated 27.09.2008. The fourth respondent, being not satisfied with the said
explanation, vide order dated 11.11.2008, passed the order of compulsory
retirement on the petitioner. Aggrieved by the said order, the petitioner
preferred an appeal before the third respondent, which was dismissed and
the review before the second respondent was also rejected and challenging
the same, the writ petitioner filed W.P.(MD)No.2783 of 2011.
5.Pursuant to the order of compulsory retirement, the petitioner made
representation dated 30.07.2020 for disbursement of the retirement benefits
viz., the Provident Fund under the Bank's Contribution, Gratuity Amount,
Privilege Leave Encashment, Encashment of Half Pay Sick Leave and other
monetary benefits, which were withheld by the respondents.. The same was
denied by the respondents by way of the impugned order dated 18.11.2010,
which is under challenge in W.P.(MD)No.2782 of 2011.
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6.The learned counsel appearing for the petitioner submits that the
sum and substance of the four charges relate to improper pre-sanction
appraisal; entertaining middle-men; failure to receive adequate security for
the property; not making thorough independent verification relating to the
value of the property; accepting valuation of the properties facilitating
borrowers to encash the loan amount and failure to ensure verification of
completion of the stage of the construction of plot before disbursal of the
entire amount. It is the submission of the learned counsel that the records in
lieu thereof have not been looked in proper perspective by the inquiry
officer, though the petitioner has followed all the guidelines, which were
alleged to have been violated. It is the further submission of the learned
counsel for the petitioner that maximum of the loan amount was recovered
during the tenure of the petitioner. It is the further submission of the
learned counsel for the petitioner that the other officers, who were equally
liable in the approval process relating to the loans were not proceeded with
and the petitioner alone was proceeded with imposed with major
punishment of compulsory retirement, which has been 90 days prior to the
date of superannuation. The third respondent without considering the
contentions raised in the appeal, mechanically rejected the appeal and the
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review petition has also been disposed of in a mechanical manner and the
said authorities have not applied their minds to the materials available
before them and, therefore, the entire order stands vitiated. It is the further
submission of the learned counsel for the petitioner that the petitioner,
though being imposed with a punishment of compulsory retirement, his
retiral benefits have not been paid to him, which is impermissible, as the
retiral benefits are not a bounty and the same should be directed to be paid
to the petitioner. Accordingly, he prays for allowing the petitions.
7. Learned counsel appearing for the petitioner, in support of his plea
that gratuity and other retiral benefits ought to be paid to the delinquent on
the conclusion of the disciplinary proceedings, relied on the decision in
Union Bank of India v. C.G.Ajay Babu ((2018) 9 SCC 529), wherein it has
been held as under :-
“Under sub-Section (6)(a), also the gratuity can be
forfeited to only to the extent of damage or loss caused to
the Bank. In case, the termination of the employee is for
any act or wilful omission or negligence causing any
damage or loss to the employer or destruction of property
belonging to the employer, the loss can be recovered from
the gratuity by way of forfeiture. Whereas under sub-
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Clause (b) of sub-Section (6), the forfeiture of gratuity,
either wholly or partially, is permissible under two
situations (i) in case the termination of an employee is on
account of riotous or disorderly conduct or any other act
of violence on his part, (ii) if the termination is for any act
which constitutes an offence involving moral turpitude
and the offence is committed by the employee in the
course of his employment. Thus, sub-Clause (a) and sub-
Clause (b) of sub-Section (6) of Section 4 of the Act
operate in different fields and in different circumstances.
Under sub-Clause (a), the forfeiture is to the extent of
damage or loss caused on account of the misconduct of
the employee whereas under sub-Clause (b), forfeiture is
permissible either wholly or partially in totally different
circumstances. Sub-Clause (b) operates either when the
termination is on account of- (i) riotous or (ii) disorderly
or (iii) any other act of violence on the part of the
employee, and under Sub-Clause (ii) of sub-Section (6)(b)
when the termination is on account any act which
constitutes an offence involving moral turpitude
committed during the course of employment.”
8.Reliance was also placed on the decision of the Hon'ble Supreme
Court in Chairman Cum Managing Director Vs. Sri Rabindranath
Choubey, wherein it is held as under:-
“The first question which is posed for the
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consideration of this Court is, whether is it permissible in
law for the appellant employer to withhold the payment of
amount of gratuity payable to the respondent employee,
even after his superannuation from service, because of the
pendency of the disciplinary proceedings against him?
The second question which is posed for the consideration
of this Court is, where departmental enquiry had been
instituted against an employee while he was in service
and continued after he attained the age of
superannuation, whether the punishment of dismissal can
be imposed on being found guilty of misconduct in view of
the provisions made in Rule 34.2 of the CDA Rules?
In view of the above and for the reasons stated above
and in view of the decision of three Judge Bench of this
Court in Ram Lal Bhaskar (supra) and our conclusions as
above, it is observed and held that (1) the appellant
employer has a right to withhold the gratuity during the
pendency of the disciplinary proceedings, and (2) the
disciplinary authority has powers to impose the penalty of
dismissal/major penalty upon the respondent even after
his attaining the age of superannuation, as the
disciplinary proceedings were initiated while the
employee was in service.
To sum up, my conclusion to the question is as under:?
Que. 1?Whether it is permissible in law for the
employer to withhold the payment of gratuity even after
the employee has attained his superannuation from
service because of the pendency of disciplinary
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proceedings against him?
Ans. I am in agreement with the view expressed by
brother Justice Shah that in view of Rule 34.3 of the
Rules, 1978, the employer has a right to withhold gratuity
during pendency of the disciplinary proceedings.”
9. Per contra, learned senior counsel appearing for the respondent
bank submits that the charges have not been disputed by the petitioner and
what is sought to be projected by the petitioner is only justifications for his
acts. It is the further submission of the learned senior counsel for the
respondent bank that though the petitioner has justified that the procedures
prescribed have been scrupulously followed, however, it has not been borne
out by record, as is revealed in the findings recorded by the enquiry officer,
who has held the charges proved. It is the further submission of the learned
senior counsel that the petitioner has not raised any grievance with regard to
the conduct of the enquiry and appreciation of evidence in the case of
departmental proceedings is within the domain of the disciplinary authority
on the basis of the findings recorded by the enquiry officer and so long as
there is no violation of principles of natural justice, the disciplinary
proceedings being proceeded on the touchstone of preponderance of
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probabilities, the Court, in exercise of its inherent power under Article 226
of the Constitution shall not interfere with the order passed by the
disciplinary authority. Further, it is submitted by the learned senior counsel
that the records also reveal independent application of mind by the appellate
and reviewing authorities and such being the case, this Court shall not
interfere with the order and equally so long as the punishment imposed is
not disproportionate and shocking the conscience of this Court, the Court
shall not interfere with the punishment and, accordingly, prays for dismissal
of the petitions.
10. Heard the learned Counsel appearing for the petitioner and the
learned Counsel appearing for the respondents and perused the materials
placed before this Court.
11. The Hon'ble Supreme Court, in B.C. Chaturvedi v. Union of
India, (1995 (6) SCC 749), while dealing with issue relating to the power
of the Court relating to judicial review of the order passed by the
disciplinary authority, held as under :
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“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 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 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,
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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
[(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this
Court held at p. 728 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.”
(Emphasis Supplied)
12. The above view has been reiterated by the Hon'ble Supreme Court
in Principal Secy. Govt. of A.P. v. M. Adinarayana, (2004 (12) SCC 579),
wherein, it has been held as under :-
“23. We have read this charge in the light of allegations in
support thereof. In the instant case, it is not disputed that the
respondent has neither supplied any prior information on the
Government nor did he send any prior intimation to the
Government. By not doing this, he has contravened the
provisions of Rule 9. The Tribunal has also categorically held
that the respondent has not applied for prior information before
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he purchased the items from the competent authority nor he
intimated to the competent authority forthwith soon after the
purchase of the several items. Therefore, in our view, the charged
officer has violated Rule 9 of the Conduct Rules and thus is guilty
of misconduct within Rule 2-H (sic) of the Andhra Pradesh
Disciplinary Amendment Act, 1993. In view of the abovesaid
finding we hold that respondent is guilty of both the charges
framed against him within Rule 2 (b) of the Conduct Rules of
1961 framed under the Amendment Act, 1993.
* * * * * * * *
26. In our opinion, judicial review cannot extend to the
examination of the correctness of the charges as it is not an
appeal but only a review of the manner in which the decision was
made. We have, therefore, no hesitation in setting aside the order
of the Andhra Pradesh Administrative Tribunal and the judgment
of the Division Bench of the High Court for reasons stated
(supra). The order passed by the Government removing the
respondent from service is in order and, therefore, the appeal
filed by the appellant State stands allowed. Further, there will be
no order as to costs.”
13. In a recent decision in Director General of Police, RPF & Ors. -
Vs – Rajendra Kumar Dubey (C.A. No.3820/2020 dated 25.11.20), the
Hon'ble Supreme Court, adverting to the various decisions of the Apex
Court relating to the interference by the High Court in exercise of its writ
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jurisdiction with respect to disciplinary proceedings, including the decision
in Chaturvedi's case (supra), held as under :-
“12.1 ...... It is well settled that the High Court must not act as
an appellate authority, and re-appreciate the evidence led before
the enquiry officer.
We will advert to some of the decisions of this Court with
respect to interference by the High Courts with findings in a
departmental enquiry against a public servant.
In State of Andhra Pradesh v S.Sree Rama Rao, a three judge
bench of this Court held that the High Court under Article 226 of
the Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is not the function of the High Court under its writ
jurisdiction to review the evidence, and arrive at an independent
finding on the evidence. The High Court may, however interfere
where the departmental authority which has held the proceedings
against the delinquent officer are inconsistent with the principles
of natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the statutory
rules prescribing the mode of enquiry, or the authorities were
actuated by some extraneous considerations and failed to reach a
fair decision, or allowed themselves to be influenced by
irrelevant considerations, or where the conclusion on the very
face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion. If
however the enquiry is properly held, the departmental authority
is the sole judge of facts, and if there is some legal evidence on
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which the findings can be based, the adequacy or reliability of
that evidence is not a matter which can be permitted to be
canvassed before the High Court in a writ petition.
These principles were further reiterated in the State of Andhra
Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ
of certiorari under Article 226 is a supervisory jurisdiction. The
court exercises the power not as an appellate court. The findings
of fact reached by an inferior court or tribunal on the
appreciation of evidence, are not re-opened or questioned in writ
proceedings. An error of law which is apparent on the face of the
record can be corrected by a writ court, but not an error of fact,
however grave it may be. A writ can be issued if it is shown that
in recording the finding of fact, the tribunal has erroneously
refused to admit admissible and material evidence, or had
erroneously admitted inadmissible evidence. A finding of fact
recorded by the tribunal cannot be challenged on the ground that
the material evidence adduced before the tribunal is insufficient
or inadequate to sustain a finding. The adequacy or sufficiency
of evidence led on a point, and the inference of fact to be drawn
from the said finding are within the exclusive jurisdiction of the
tribunal.
In subsequent decisions of this Court, including Union of
India v. G. Ganayutham, Director General RPF v. Ch. Sai
Babu, Chennai Metropolitan Water Supply and Sewerage
Board v T.T. Murali, Union of India v. Manab Kumar Guha,
these principles have been consistently followed.
In a recent judgment delivered by this Court in the State of
Rajasthan & Ors. v. Heem Singh this Court has summed up the
law in following words :
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“33. In exercising judicial review in disciplinary matters,
there are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This
is for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The judge does not assume the mantle of
the disciplinary authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who
is responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of natural
justice. But they are not governed by strict rules of evidence
which apply to judicial proceedings. The standard of proof is
hence not the strict standard which governs a criminal trial, of
proof beyond reasonable doubt, but a civil standard governed by
a preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on context
and subject. The first end of the spectrum is founded on
deference and autonomy – deference to the position of the
disciplinary authority as a fact finding authority and autonomy
of the employer in maintaining discipline and efficiency of the
service. At the other end of the spectrum is the principle that the
court has the jurisdiction to interfere when the findings in the
enquiry are based on no evidence or when they suffer from
perversity. A failure to consider vital evidence is an incident of
what the law regards as a perverse determination of fact.
Proportionality is an entrenched feature of our jurisprudence.
Service jurisprudence has recognized it for long years in
allowing for the authority of the court to interfere when the
finding or the penalty are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies in maintaining a
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steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they
exercise judicial review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an initial or
threshold level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support
the charge of misconduct and to guard against perversity. But
this does not allow the court to re-appreciate evidentiary
findings in a disciplinary enquiry or to substitute a view which
appears to the judge to be more appropriate. To do so would
offend the first principle which has been outlined above. The
ultimate guide is the exercise of robust common sense without
which the judges’ craft is in vain.”
In Union of India v. P. Gunasekaran, this Court held that the
High Court in exercise of its power under Articles 226 and 227 of
the Constitution of India shall not venture into re-appreciation of
the evidence. The High Court would determine whether : (a) the
enquiry is held by the 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 which are
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
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had erroneously admitted inadmissible evidence which
influenced the finding; (i) the finding of fact is based on no
evidence.
In paragraph 13 of the judgment, the Court held that :
“13.Under Articles 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 the 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.”
(Emphasis Supplied)
14. From the ratio laid down above, it is implicitly clear that the
Courts, in exercise of its power of judicial review, cannot extend the
examination to the correctness of the act of the disciplinary authority, but
only limit itself to the manner in which the decision has been arrived at by
the authorities and whether the same is in accordance with law. This Court
is to test only the correctness of the decision arrived at by the authorities on
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the basis of the evidence before it and not proceed with the case as if it is an
appeal against the impugned order.
15. In the case on hand, it is not the case of the petitioner that he has
not been provided with adequate opportunity to represent his case and that
there was violation of principles of natural justice in the conduct of enquiry.
However, it is the case of the petitioner that the authorities have not taken
into consideration his explanation in proper perspective and that the
documents have not been appreciated in proper perspective, though the
petitioner has followed all the guidelines and has adhered to the provisions
relating to disbursement of loans, which shows non-application of mind on
the part of the authorities, which makes the impugned orders liable for
interference.
16. It is to be pointed out that the standard of proof required in a
departmental proceedings is not in the same league as the standard of proof
required to establish a charge in a criminal case. Disciplinary enquiries
have to abide by the rules of natural justice. But they are not governed by
strict rules of evidence which apply to judicial proceedings. The standard of
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proof is hence not the strict standard which governs a criminal trial, of proof
beyond reasonable doubt, but a civil standard governed by a preponderance
of probabilities. While the standard of proof in a criminal trial would be on
the basis of the provisions of the Evidence Act and other statutes, however,
in the departmental proceedings, it is only on the touchstone of
preponderance of probabilities, the evidence is evaluated and, therefore, it is
impermissible to equate the way in which the evidence ought to be
evaluated.
17. The Hon'ble Supreme Court, in Rajendra Kumar Dubey's case
(supra), following the ratio laid down in Gunasekaran's case has held that
the High Court, sitting under Article 226 of the Constitution, while
determining its scope of interference in a departmental proceedings is only
bound to determine whether (a) the enquiry is held by the 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 which are
extraneous to the evidence and merits of the case; (e) the authorities have
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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.
18. It is to be stressed that the Court 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 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.
It has been the consistent view of the Courts that the nature of evidence
required in a disciplinary proceedings is not in the same level as required in
a criminal trial, as in the disciplinary proceedings, the finding is arrived at
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on the basis of preponderance of probabilities. In such a scenario, it is not
the function of the High Court under its writ jurisdiction to review the
evidence, and arrive at an independent finding on the evidence. If the
enquiry is properly held within the four boundaries of legal necessities, then
the departmental authority is the sole judge of facts, and if there is some
legal evidence on which the findings can be based, the adequacy or
reliability of that evidence is not a matter which can be permitted to be
canvassed before the High Court in a writ petition. An error of law which is
apparent on the face of the record can be corrected by a writ court, but not
an error of fact, however grave it may be. High Court in exercise of its
power under Articles 226 and 227 of the Constitution of India shall not
venture into re-appreciation of the evidence and further the Supreme Court
has also codified the circumstances under which re-appreciation of evidence
is permissible.
19. In the above backdrop, a careful perusal of the records reveal that
the enquiry officer has taken into consideration the materials placed before
him while recording a finding in the affirmative against the petitioner. The
disciplinary authority also, on cogent and convincing reasons and on
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W.P(MD)Nos.2782 and 2783 of 2011
independent application of mind, has arrived at the finding finding the
petitioner guilty and to impose the punishment on the petitioner. Further, on
appeal and revision, the concerned authorities have also applied their
independent mind while deciding the appeal/revision and, therefore, no
lacunae can be pointed out that there is no independent application of mind.
Such contention on the part of the petitioner is nothing but a faint attempt to
wriggle out of the mess which he has created for himself.
20. It has been the consistent view of the Courts that it is always
within the domain of the appointing authority to decide on the punishment
to be imposed on the delinquent, which should be proportionate to the act of
the delinquent. Only when the punishment is disproportionate and shocking
to the conscience, should the courts interfere in the same in exercise of
powers under Art. 226 of the Constitution. In Prem Nath Bali – Vs - High
Court of Delhi (2015 (16) SCC 415), the Hon'ble Supreme Court held as
under :-
“20. It is a settled principle of law that once the charges
levelled against the delinquent employee are proved then it is for
the appointing authority to decide as to what punishment should
be imposed on the delinquent employee as per the Rules. The
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W.P(MD)Nos.2782 and 2783 of 2011
appointing authority, keeping in view the nature and gravity of
the charges, findings of the inquiry officer, entire service record
of the delinquent employee and all relevant factors relating to the
delinquent, exercised its discretion and then imposed the
punishment as provided in the Rules.
21. Once such discretion is exercised by the appointing
authority in inflicting the punishment (whether minor or major)
then the courts are slow to interfere in the quantum of punishment
and only in rare and appropriate case substitutes the punishment.
Such power is exercised when the court finds that the delinquent
employee is able to prove that the punishment inflicted on him is
wholly unreasonable, arbitrary and disproportionate to the
gravity of the proved charges thereby shocking the conscience of
the court or when it is found to be in contravention of the Rules.
The Court may, in such cases, remit the case to the appointing
authority for imposing any other punishment as against what was
originally awarded to the delinquent employee by the appointing
authority as per the Rules or may substitute the punishment by
itself instead of remitting to the appointing authority.”
(Emphasis Supplied)
21. From the ratio laid down by the Apex Court above, it is crystal
clear that the power to interfere with the punishment should be exercised
only if the delinquent employee is able to prove that the punishment
inflicted on him is wholly unreasonable, arbitrary and disproportionate to
the gravity of the proved charges and, thereby, shocking the conscience of
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W.P(MD)Nos.2782 and 2783 of 2011
the Court or if it is in contravention of the Rules. In the case on hand, the
petitioner has caused a huge loss to the bank by not carrying out his duties
diligently, which has resulted in the punishment of compulsory retirement
imposed on the petitioner. Though the charge is grave, however, the
respondent bank, on a holistic consideration has only compulsorily retired
the petitioner, which entitles the petitioner for the service benefits.
Therefore, the said punishment cannot be said to be excessive,
disproportionate or shocking the conscience of the Court.
22. In the present case, it is the stand of the respondent bank that the
act of the petitioner has caused a loss to the tune of Rs.37 Lakhs to the bank,
which the bank sought to recover it by adjusting the service benefits of the
petitioner, viz., Bank's contribution to the Provident Fund, Gratuity Amount,
Privilege Leave Encashment, Encashment of Half Pay Sick Leave and other
monetary benefits, which were withheld by the respondents. However, it is
to be pointed out that the petitioner has not been dismissed/terminated from
service, but only compulsorily retired from service, which entitles him to
receive service benefits. But equally it also should not be lost sight of that
the petitioner has caused loss to the tune of Rs.37 lakhs to the Bank. It is
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W.P(MD)Nos.2782 and 2783 of 2011
the stand of the petitioner that much of the amount has already been
recovered and, therefore, there is no necessity for the bank to forfeit the
above service benefits of the petitioner. The said stand of the petitioner has
not been countered in a voiceferous way by the respondent bank by placing
any material, which would negate the stand of the petitioner. However,
even according to the petitioner, amounts have been recovered, but the same
has not been quantified. In such a backdrop, this Court is of the considered
view that without there being quantification of the amount by either of the
party, allowing the claim in full to one of the party would not be in the
interest of justice. In such a backdrop, this Court is of the considered view
that the respondent Bank would be entitled to forfeit the amounts towards
gratuity and bank's contribution to the provident fund, but the amounts
towards Privilege Leave Encashment, Encashment of Half Pay Sick Leave
and other monetary benefits ought to be paid to the petitioner.
23. For the reasons aforesaid, while W.P. No.2783/2011 is dismissed,
W.P. No.2782/11 is disposed of directing the respondent bank to forfeit only
the amounts towards gratuity and bank's contribution to the provident fund.
The respondent bank is directed to pay the amounts towards Privilege Leave
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W.P(MD)Nos.2782 and 2783 of 2011
Encashment, Encashment of Half Pay Sick Leave and other monetary
benefits to which the petitioner would be entitled within a period of twelve
weeks from the date of receipt of a copy of this order and it is made clear
that the petitioner would not be entitled for any interest on the said
disbursement. There shall be no order as to costs.
25.01.2021
Index : Yes / No
Internet : Yes/ No
ias
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
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W.P(MD)Nos.2782 and 2783 of 2011
M.DHANDAPANI, J.
ias
W.P(MD)Nos.2782 and 2783 of 2011
25.01.2021
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