Madras High Court
State Bank Of India vs Palaniappan on 27 September, 2024
Author: Anita Sumanth
Bench: Anita Sumanth
W.A.No.2541 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.09.2024
PRONOUNCED ON : 27.09.2024
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
and
THE HONOURABLE MR.JUSTICE G. ARUL MURUGAN
W.A.No.2541 of 2021
and
C.M.P.No.16550 of 2021
and C.M.P.Nos.9743 & 9745 of 2023
1. The Managing Director,
State Bank of India,
Central Office,
Post Box No.12,
Mumbai – 400 021.
2. The Chief General Manager,
State Bank of India,
Local Head Office, “CIRCLETOP” House”.
18, College Lane,
Chennai – 600 008.
3. The Deputy General Manager ( Appellate Authority),
State Bank of India,
Zonal Office, Ambedkar Road,
Madurai – 625 002.
4. The Assistant General Manager,
Region -II ( Disciplinary Authority),
1/46
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W.A.No.2541 of 2021
State Bank of India, Zonal Office, Madurai .. Appellants
vs
Palaniappan
1402, Ponmalar Street,
Valluvar Nagar,
Karaikudi - 630 002. .. Respondent
Prayer: Appeal filed under Clause 15 of the Letters Patent to set aside
the order passed by the learned Judge dated 07.02.2020 made in
W.P.no.18983 of 2005.
For Appellants : Mr. C.Mohan
for M/s. Rexy Josephine Mary
for M/s. King and Partridge
For Respondent : Mr. K.M.Ramesh, Senior Counsel
for Mr. V.Subramani
JUDGMENT
(Order of the Court was made by Mr. G. ARUL MURUGAN.,J)
This Intra Court Appeal is preferred against the order dated
07.02.2020 made in W.P.No.18983 of 2005, whereby the Writ Court had
set aside the punishment of removal from service imposed on the Writ
Petitioner and directed the appellants to give all the monetary and
consequential benefits as if he had continued in service till the age of
superannuation.
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2. The short facts to be noted in the appeal is that the Respondent/
Writ Petitioner was initially appointed as Clerk on 17.11.1998 in the
appellant bank and thereafter was posted as Assistant in Karaikudi
Branch on 22.11.2002. While so, on 19.12.2002, he was placed under
suspension contemplating initiation of disciplinary proceedings for
having committed certain serious irregularities. The charge memo came
to be issued on 16.05.2003 containing the following five charges.
Charge No.1:
On 26/11/2002, you had fraudulently encashed cheque
No.108701 dated 11/11/2002 for Rs.15000/- issued to one Shri
Ghouse Myan by Shri John Batcha, NRE account holder and
has failed to handover the amount to the beneficiary. In this
connection the payee preferred a complaint on 18.12.2002 to
the Bank for immediate recovery of the amount.
Charge No.2
You had also encashed cheque No.641708 dated 11.12.2002
for Rs.4000/- in favour of Smt. Erudayamari sent to her by
her husband Shri Samikannu, NRE account holder without the
knowledge of the payee of the cheque.
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Charge No.3
While working at Tirupattur Branch, you had in connivance
with Shri S.Ulaganathan, Accountant, Tirupattur Branch
negotiated Cheque No.002539 dated 18.06.2002 for Rs.9000/-
drawn on ICICI Bank, Karaikudi and had retained the above
cheque for more than 5 months. Finally, the Bank could get
reimbursement for the above DD purchased cheque only on
16.12.2002.
Charge No.4
You had issued the following cheques without sufficient funds in
your account.
S.No Cheque Date Amount Returned Reasons Favouring
No. on for
Return
1. 325282 09/12/02 6500 9/12/2002 Insufficie S.B.Nagali
nt Funds ngam
2. 325287 06/02/03 2000 7/02/2003 -do- C.Muthiah
Charge No.5
On 07/11/2002 and 09/12/2002, you have absented yourself
from the Office after lunch without obtaining prior
permission from the Appropriate Authorities. You have not
submitted your explanations to the Chief Manager.
Thus you had been unpunctual, irregular in attending office
and had failed to mend yourself even after the repeated
instructions of the Chief Manager of the Branch. Thus you
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had been disobedient and had shown wilful insubordination
for reasonable orders of the Superior.
Your above acts, if proved, would amount to Gross
Misconduct in terms of paragraph 5(c), (j) and (e) of The
Memorandum of Settlement dated 10/04/2002.
3. It seems that the respondent had not chosen to offer any
explanation by submitting a reply to the charge memo. However the
Bank by proceedings dated 15.07.2003, appointed an Enquiry Officer for
conducting enquiry. Pursuant to the enquiry in the disciplinary
proceedings, the Enquiry Officer submitted his report on 15.04.2004
holding that the charges 1, 3, 4 and 5 as proved and charge No.2 as not
proved. The disciplinary authority concurred with the findings of the
Enquiry Officer and proposed to impose punishment of 'Dismissal
Without Notice from the Bank Service' and issued 2nd show cause notice
to the respondent on 14.06.2004. On receipt of reply, personal hearing
was adduced to the respondent on 26.06.2004 and ultimately by an order
dated 12.07.2004, the 4th appellant imposed the punishment of dismissal
without notice from bank service with immediate effect.
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4. The respondent filed an appeal on 27.08.2004 before the 3 rd
appellant / Appellate Authority and the Appellate Authority by order
dated 30.10.2004 considering the period of fourteen years service of the
respondent to the Bank, modified the punishment as “discharged from
service” instead of “dismissal without notice”. Challenging both the
orders of the Disciplinary Authority and the Appellate Authority, the
respondent had preferred the Writ Petition. The Writ Court observed that
Charge No.1 had been framed only based on the complaint given by the
account holder Ghouse Miyan and since he had not been examined as
witness, the opportunity to the delinquent to cross examine the witness
was denied, particularly when the complainant himself had withdrawn
the complaint by issuing another letter on the same date. The writ court
as such held that there had been violation of fair treatment to the
delinquent and holding that the punishment imposed is illegal, perverse,
had ultimately set aside the punishment and directed the appellant Bank
to give all the consequential benefits. Assailing the orders passed by the
Writ Court, the Appellant Bank had preferred the Writ Appeal.
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5.1. Mr. C. Mohan, the learned counsel appearing for the appellant
Bank argued that, when the respondents had not come forward to offer
his explanation to the charge memo and in the domestic enquiry, the
charges 1, 3, 4 & 5 having been proved, the learned Judge had interfered
in the punishment only on the ground that the complainant was not
examined and the documents were not furnished which is unsustainable
and against the settled proposition.
5.2. The learned counsel further contended that when 14
documents have been marked on the side of the Bank and particularly the
documents in PEX.1 to PEX.3, relates to the first charge and other
exhibits relate to the charges 3, 4 & 5, the learned Judge had erroneously
recorded a finding that the documents have not been submitted.
5.3. The learned counsel, by relying on the complaint dated
18.12.2002 of the account holder B.Ghouse Miyan, submitted that, when
the cheque was handed over to the delinquent on 26.11.2002 for
collecting the amount, the delinquent misled and handed over a receipt to
the complainant, and the money was not handed over on 26.11.2002 and
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even on 09.12.2002 and only a sum of Rs.4,000/- was handed over on
16.12.2002 and due to which the complaint in PEX.2 has been lodged by
the complainant on 18.12.2002.
5.4. The learned counsel by relying on PEX 3, which is the
Cashier's Payment Scroll dated 26.11.2002, submitted that the S.No.13
with token No. 506 was used by the delinquent and he had received a
sum of Rs.15,000/- covered under the cheque. The learned counsel in
respect of the second letter dated 18.12.2002 given by the complainant
submitted that, the word “on that day on 18.12.2002” instead of “today”
for withdrawing the complaint makes it amply clear that only after the
complaint was lodged, the delinquent was able to persuade the
complainant by handing over the money.
5.5. The learned counsel further by relying on the medical report
contended that the delinquent only due to chronic alcoholism had
stomach problem and therefore he cannot have any justification for being
unauthorizedly absent and if at all he had an issue, he can attend to it
only by availing necessary leave.
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5.6. The learned counsel further contended that, it is not mandatory
for the Management to examine the complainant and in the domestic
enquiry, strict rules of evidence may not apply and relied on the decision
of the Hon'ble Supreme Court in the case of State of Haryana & Anr
Vs. Rattan Singh reported in 1977 (2) SCC 491, which has also been
followed in the case of State of Karnataka & Anr Vs. Umesh reported
in (2022) 6 SCC 563.
5.7. The learned counsel further contended that, the scope of the
High Court exercising judicial review under Article 226 of the
Constitution of India, is only to the extent of satisfying the manner in
which the decision has been arrived at and the Court is not the Appellate
Authority to reappraise the evidence and arrive at an independent
finding. In this regard, the learned counsel relied on the following
decisions:
(i) B.C.Chaturvedi Vs. Union of India and Another reported in
(1995) 6 SCC 749
(ii) High Court of Judicature at Bombay Vs. Shashikant S.Patil
and Another reported in (2000) 1 SCC 416
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(iii) Principal Secretary, Govt. of A.P Vs. M.Adinarayana
reported in (2004) 12 SCC 579
(iv) State Bank of India and Others Vs. Ramlal Baskar
reported in (2011) 10 SCC 249
(v) State Bank of India Vs. Narendra Kumar Pandey reported
in (2013) 2 SCC 740
(vi) State Bank of India Vs. R.Periyasamy reported in (2015) 3
SCC 101
(vii) Premnath Bali Vs. High Court of Delhi And Another
reported in (2015) 16 SCC 415
(viii) Director General of Police, Railway Protection Force and
Others Vs. Rajendra Kumar Dubey reported in 2020 SCC OnLine
SC 954
(ix) State Bank of India Vs. Ajay Kumar Srivatsava reported in
(2021) 2 SCC 612.
(x) Chatrapal Vs. State of Uttar Pradesh and Anr reported in
2024 SCC Online SC 146
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5.8. The learned counsel further by relying on the Judgment of the
Hon'ble Supreme Court in the case of State Bank of India Vs. A.G.D.
Reddy reported in 2023 SCC Online SC 1064 contended that, in a
disciplinary proceeding, the question of burden of proof depend upon the
nature of charge and the nature of explanation put forward by the
respondent and in the instant case, the respondent had not come forward
to give explanation and the onus was on him to prove the transactions as
set out in the charge.
5.9. The learned counsel further contended that, the Writ Court had
ventured into to reappraise the evidences and without taking note of the
documents submitted and mainly on the ground that the complainant was
not examined, dehors the availability of the materials had interfered in
the punishment which is not sustainable and sought for interference of
this Court.
6.1. Per contra, Mr. K.M.Ramesh, the learned counsel appearing
for the respondent argued that, as far as the first charge is concerned,
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there is no oral evidence on the side of the employer and only
documentary evidence has been relied on. Further by relying on the
proceedings in the enquiry contended that the second letter dated
18.12.2002 given withdrawing the earlier complaint was very much
available and has also been referred in the proceedings.
6.2. The learned counsel further contended that, one Ramanadhan,
Senior Assistant at the Branch had deposed that he saw the second letter
dated 18.12.2002 given by the complainant. It is his further contention
that, since the complainant had withdrawn the complaint on the same
day, there is no cheating and therefore the first charge against the
delinquent employee cannot be sustained. As far as the charges 3, 4 & 5,
it is the contention of the learned Counsel that, these charges do not
amount to a misconduct and at the best can only invite a minor
punishment.
6.3. The learned Senior counsel further contended that the
departmental enquiry being a quasi judicial proceeding, the Enquiry
Officer has to arrive at a finding upon taking into consideration the
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materials brought on record and when there is no direct evidence and
more particularly when the complainant himself has not been examined,
the report of the Enquiry Officer cannot be sustained as it is based on
mere surmises.
6.4. It is his further contention that in the Departmental Enquiry,
the suspicion however high cannot substitute the legal proof and when
the charges leveled against the respondent has not been proved through
witnesses. More particularly when the respondent did not have the
opportunity to cross examine the witness, fair opportunity has not been
adduced to the respondent and therefore the report submitted by the
Enquiry Officer holding that the charges are proved cannot be sustained.
Only by taking note of all these aspects, the learned Judge had rightly
interfered with the orders passed by the Disciplinary Authority and the
Appellate Authority, as the punishment imposed on the respondent was
found to be illegal and perverse and based on no legal evidence, had set
aside the punishment which is perfectly justified and need no
interference and sought for dismissal of the appeal.
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6.5. In support of his arguments, he relied on the following
judgments:
(i) Roop Singh Negi Vs. Punjab Nation Bank & Others
reported in (2009) 2 SCC 570
(ii) Union of India and Others Vs. Gyan Chand Chattar
reported in (2009) 12 SCC 78
(iii) Commissioner of Police, Delhi and Others Vs. Jai
Bhagwan reported in (2011) 6 SCC 376
(iv) Vincent Vs. The Director of Government Examinations
reported in CDJ 1985 MHC 160
(v) Hardwari Lal Vs. State of U.P and others reported in (1999)
8 SCC 582
(vi) Union of India Vs. H.C.Goel reported in AIR 1964 SC 364
(vii) A.V.Krishnamurthi Vs. Government of Tamil Nadu and
others reported in 1984 (1) LLJ 46
(viii) Central Bank of India Vs. Prakash Chand Jain reported in
1969 (2) LLJ 377 (SC)
(ix) A.L. Kalra Vs. Project and Equipment Corporation of
India Ltd reported in 1984 (2) LLJ 186
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(x) Dasari Srinivas Vs. Deputy General Manager, Syndicate
Bank reported in MANU/AP/1598/2014
(xi) Deputy General Manager, Syndicate Bank and others Vs.
Dasari Srinivas reported in MANU/TL/0453/2022.
7. Heard the rival submissions and perused the materials available
on record.
8. The respondent/ Writ Petitioner who had been appointed as
Clerk in the State Bank of India on 17.11.1998 was posted to Karaikkudi
Branch on 22.11.2002. While so, he was placed under suspension on
19.12.2002 in contemplation of disciplinary proceedings. A charge
memo was issued on 16.05.2003 containing five charges as referred
above. The respondent did not come forward to offer his explanation but
however the 4th appellant by proceedings dated 15.07.2003 appointed an
Enquiry Officer to enquire into the charges. In the enquiry, the appellants
were represented by the Presenting Officer and the respondent was
represented by the defence representative and the hearings were held on
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several dates. In the enquiry, 2 witnesses were examined by the employer
and 14 documents were marked. Further on the defense side 2 witnesses
were examined and 6 documents were marked. The Enquiry Officer
submitted the enquiry report on 15.04.2004 holding that charges 1, 3, 4
& 5 were proved and charge 2 has not been proved.
9. The second show cause notice was issued on 14.06.2004 and
after receipt of the reply, by an order dated 12.07.2004 the 4 th appellant
Disciplinary Authority imposed punishment of dismissal without notice
from bank service. The respondent filed appeal before the 3rd Appellant
on 27.08.2004 and the Appellate Authority by order dated 30.10.2004
modified the punishment from dismissal from service to discharge from
service. By the impugned order dated 07.02.2020, the Writ Court set
aside the punishment and directed the respondent to grant all monetary
and consequential benefits.
10. The main ground on which the Writ Court had interfered in the
punishment imposed is that, the complainant B.Ghouse Miyan in respect
of the first charge was not examined as witness and thereby the
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opportunity for cross examination was denied. It is also the contention of
the respondent that when the complainant B.Ghouse Miyan has not been
examined and further when the complainant himself on the same day, by
a subsequent letter had withdrawn the complaint, the issue of cheating
does not arise and the charges cannot be sustained.
11. In so far as the examination of the complainant as witnesses is
concerned, in the domestic enquiry, the strict rules of evidence may not
apply and even the hearsay evidence is sufficient in the Departmental
proceedings, provided if it has nexus and credibility. The Hon'ble
Supreme Court in the decision of State of Haryana & Anr Vs. Rattan
Singh reported in 1977 (2) SCC 491, held that, departmental enquiry is
not bound by strict rules of Evidence Act and all materials which are
logically probative for prudent mind are permissible. The relevant
portion is usefully extracted is hereunder:
“4. It is well settled that in a domestic enquiry the
strict and sophisticated rules of evidence under the Indian
Evidence Act may not apply. All materials which are
logically probative for a prudent mind are permissible.
There is no allergy to hearsay evidence provided it has
reasonable nexus and credibility. It is true that
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departmental authorities and Administrative Tribunals must
be careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under the
Indian Evidence Act. For this proposition it is not necessary
to cite decisions nor text books, although we have been
taken through case-law and other authorities by counsel on
both sides. The essence of a judicial approach is objectivity,
exclusion of extraneous materials or considerations and
observance of rules of natural justice. Of course, fair play is
the basis and if perversity or arbitrariness, bias or
surrender of independence of judgment vitiate the
conclusions reached, such finding, even though of a
domestic tribunal, cannot be held good. However, the courts
below misdirected themselves, perhaps, in insisting that
passengers who had come in and gone out should be chased
and brought before the tribunal before a valid finding could
be recorded. The ‘residuum’ rule to which counsel for the
respondent referred, based upon certain passages from
American Jurisprudence does not go to that extent nor does
the passage from Halsbury insist on such rigid requirement.
The simple point is, was there some evidence or was there
no evidence — not in the sense of the technical rules
governing regular court proceedings but in a fair
commonsense way as men of understanding and worldly
wisdom will accept. Viewed in this way, sufficiency of
evidence in proof of the finding by a domestic tribunal is
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beyond scrutiny. Absence of any evidence in support of a
finding is certainly available for the court to look into
because it amounts to an error of law apparent on the
record. We find, in this case, that the evidence of
Chamanlal, Inspector of the Flying Squad, is some evidence
which has relevance to the charge levelled against the
respondent. Therefore, we are unable to hold that the order
is invalid on that ground.”
12. The above decision was also reiterated by the Hon'ble Supreme
Court in the case of Divisional Controller, KSRTC v. A.T. Mane, (2005)
3 SCC 254 and the relevant portion is extracted hereunder:
“9. From the above it is clear that once a domestic
tribunal based on evidence comes to a particular
conclusion, normally it is not open to the Appellate
Tribunals and courts to substitute their subjective opinion in
the place of the one arrived at by the domestic tribunal. In
the present case, there is evidence of the inspector who
checked the bus which establishes the misconduct of the
respondent. The domestic tribunal accepted that evidence
and found the respondent guilty. But the courts below
misdirected themselves in insisting on the evidence of the
ticketless passengers to reject the said finding which, in our
opinion, as held by this Court in the case of Rattan Singh
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[(1977) 2 SCC 491 : 1977 SCC (L&S) 298] is not a
condition precedent. We may herein note that the judgment
of this Court in Rattan Singh [(1977) 2 SCC 491 : 1977
SCC (L&S) 298] has since been followed by this Court in
Devendra Swamy v. Karnataka SRTC [(2002) 9 SCC 644 :
2002 SCC (L&S) 1093].
10. Since the only ground on which the finding of the
domestic tribunal has been set aside being the ground that
the passengers concerned are not examined or their
statements were not recorded, in spite of there being other
material to establish the misconduct of the respondent, we
are of the opinion, the courts below have erred in allowing
the claim of the respondent. In our opinion, the ratio laid
down in the above case of Rattan Singh [(1977) 2 SCC 491
: 1977 SCC (L&S) 298] applies squarely to the facts of this
case.”
13. Further the above legal position had also been followed by the
Hon'ble Supreme Court in case of State of Karnataka & Anr Vs.
Umesh reported in (2022) 6 SCC 563 and also in the case of Chatrapal
Vs. State of Uttar Pradesh and Anr reported in 2024 SCC Online SC
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14. From the above referred decisions, it is clear that in the
domestic enquiry, the strict and sophisticated rules of evidence in the
Indian Evidence Act may not apply and all the materials which are
logically probative in a prudent mind are permissible and if there is
reasonable nexus and credibility, the hearsay evidence is also sufficient.
The complainant need not be always examined as witness and if the
materials are available in respect of the charges imputed against the
delinquent, then it will be sufficient to prove the charges. If there has
been a fair enquiry without any arbitrariness or bias, the findings arrived
at in the enquiry need not be disturbed.
15. Keeping the above principles in mind, we would proceed to
deal with the facts of the instant case. The complainant one B.Ghouse
Miyan had come to the Bank on 26.11.2002 to encash the cheque bearing
No. 108701 dated 11.11.2002 for a sum of Rs.15,000/- issued in his
favour by one John Batcha. The delinquent/ respondent after receiving
the cheque instead of giving him the token, misdirected the complainant
that the cheque had to be realized and issued a receipt. However, the
respondent had obtained the token for himself and with a fraudulent
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intention had received the amount of Rs.15,000/- from the cashier.
16. The complainant B.Ghouse Miyan had visited the Bank on
09.12.2002 and he was informed by the respondent that, he had wrongly
deposited the cheque in another account and therefore he cannot get this
money immediately, but however handed over a sum of Rs.4,000/- alone
to the complainant. Again when he visited the Bank on 16.12.2002 still
the respondent had informed him that the money had not been realized
and only thereafter the complainant had met the Manager and informed
the above details and had given the complaint dated 18.12.2002, marked
as PEX 2. The cheque handed over by the complainant has also been
marked as PEX 1. The Cashier's Payment Scroll dated 26.11.2002 has
been marked by the prosecution as PEX 3. In the cash payment scroll, in
S.No.13 with token No.506, the respondent's name had been entered for
having received the cash of Rs.15,000/-.
17. From the documents in PEX 1 to PEX 3 it is clear that, in
respect of the cheque dated 11.11.2002 in PEX 1, the cash towards the
cheque has been received by the respondent on 26.11.2002, as per the
entry made in the Cashier's payment scroll in PEX3. The perusal of the
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complaint dated 18.12.2002 in PEX2 makes it clear that this cheque had
been handed over by the complainant to the respondent on 26.11.2002
and on the same day, the cash payment towards the cheque has been
made to the respondent in PEX3. Inspite of the complainant visiting the
Bank on 09.12.2002, the respondent had given only a sum of Rs.4,000/-
to the complainant and had not made any payment when he again visited
the Bank on 16.12.2002 and only due to which the complainant came
forward to give the complaint on 18.12.2002 in PEX2.
18. It is the vehement contention of the learned counsel for the
respondent that the complainant himself had given another letter dated
18.12.2002, wherein he had withdrawn the complaint and the second
letter dated 18.12.2002 has been referred to in the Departmental
Proceedings. The perusal of the letter as filed in the typed set of papers
by the respondent states that the complainant had received the entire sum
of Rs.15,000/- covered under the cheque and the respondent was not
liable to pay any money towards the cheque and he also withdraws the
complaint given by him earlier. If this letter is read along with the
original complaint, it could be seen that the respondent had retained this
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money from 26.11.2002 and had paid only a sum of Rs.4000/- on
09.12.2002 and only after the filing of the complaint by the complainant
on 18.12.2002, the respondent by returning the balance money was able
to persuade the complainant, which resulted in this alleged letter being
given by the complainant stating that he has received the full payment
towards the cheque.
19. The charge as against the respondent in so far as fraudulently
encashing the cheque of B.Ghouse Miyan for a sum of Rs.15,000/- and
failed to pay the amount to the beneficiary has been established by the
documents in PEX1 to PEX3, more particularly since as per PEX-3 the
respondent had received the cash as early on 26.11.2002 itself and he had
no explanation to offer in this regard. In such circumstances, the non-
examination of the complainant B.Ghouse Miyan does not in any way
impeach the credibility of the documents and when the respondent has
not chosen to submit his reply to the charge memo, the onus has shifted
on the respondent and it is for him to discharge by adducing necessary
materials to disprove the charge as substantiated by the material
documents.
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20. The Enquiry Officer has specifically dealt with all these
aspects in the enquiry report and taken note of the fact that in the cheque
dated 11.11.2002 which is marked as PEX1 handed over by the
complainant to the delinquent, the signature of the respondent is found
on the reverse of the cheque and his name has been stated in the cashier's
payment scroll dated 26.11.2002 in PEX3, which clearly establishes the
fact that the respondent had received the proceeds of the cheque on
26.11.2002. From the documents in PEX 1 and PEX 3, the Enquiry
Officer had come to the conclusion that the respondent had misdirected
the complainant B.Ghouse Miyan that the cheque handed over by him
has to be realized and had turned him away and had thereafter obtained
the token for himself and encashed the cheque which had been retained
by him after making part payment of Rs.4000/- on 09.12.2002 at least till
the complaint was preferred by the B.Ghouse Miyan on 18.12.2002.
21. The Enquiry Officer had also taken note of the subsequent
letter dated 18.12.2002 relied on by the defence where there was a blank
statement by the complainant that the amount of Rs.15,000/- was
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rd
received in full from the respondent. Further a 3 letter which was
received almost after a year was also taken note of, where new stand was
taken that since the respondent was well known to the complainant, this
money was given as loan.
22. The above documents filed in PEX1 – PEX3, has been
analyzed in detail by the Enquiry Officer and had rendered a finding
about that the handing over of the cheque to the respondent and
encashment of the amount on the same date, all having been established
through the documents. The respondent was only able to prevail upon the
complainant by returning the money after the complaint in PEX2 was
filed by the complainant and had made several further attempts to
persuade the complainant from pursuing the complaint by taking new
stand.
23. As referred in the decisions above, all materials which are
logically probative for a prudent mind are permissible and strict and
sophisticated rules of evidence in the domestic enquiry may not apply.
Here it is not a case of no evidence, but the evidence is very much
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available and the documents in PEX1 to PEX3 speak for themselves by
which, the transactions and the irregularities committed by the
respondent stand amply proved. In fact when two witnesses had been
examined on the side of the prosecution and marked documents PEX-1 to
PEX-3 in respect of the first charge, only because the complainant was
not examined it would not be fatal to the case of the prosecution.
24. In respect of the Charge No.3, it was held proved based on the
circumstantial evidence and documents that he had retained the cheque
dated 18.06.2002 for a sum of Rs.9,000/- for more than five months and
the Bank was able to get reimbursement for the DD purchased only on
16.12.2002 and in respect of the 4th charge, the respondent has issued two
cheques without sufficient funds in his account, and the charges were
held as proved. The Writ Court had in so far as the Charge No.3 and 4 are
concerned held that since no witnesses were examined and documents
were marked in respect of these charges and also further the dishonour of
cheque was between the respondent and the third party, it will not
amount to any misconduct as it does not affect the Bank.
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25. In so far as the Charge No.5 is concerned, the respondent
absented himself from Office on 07.11.2002 and 09.11.2002 without
prior permission and when the Enquiry Officer found that the respondent
has not offered any reply to the letter served on him, except by endorsing
that he is ulcer patient and received complaint and nothing prevented him
from approaching the superior from availing permission for medical
reasons. The learned Judge has held that though the respondent had
submitted medical report to show that he was an ulcer patient and
suffered from severe abdominal pain, the same was not considered by the
Enquiry Officer. The Appellant Counsel had only relied on the medical
record filed in PEX-4 wherein it was recorded that the respondent is
affected by the chronic alcoholism that is to be treated accordingly.
Therefore even if he had an abdominal problem which is due to his own
habits, he can be absent from office only on leave or after obtaining
permission from the higher authorities.
26. The enquiry proceedings were conducted on 08.10.2003,
17.10.2003, 18.11.2003, 17.12.2003, 22.12.2003, 20.01.2004 and in the
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enquiry, the presenting officer on behalf of the Management and the
defense representative on the side of the respondent were present and the
respondent had participated in the enquiry. Adequate opportunities have
been given to the respondent and based on the materials available, the
Enquiry Officer had submitted the enquiry report holding that the
Charges 1, 3, 4 and 5 are proved. When all the above referred materials
were available on record, the Enquiry Officer has dealt with these aspects
in his enquiry report and therefore it is not a case of no evidence but
sufficient evidence available to prove the charge.
27. Further the second show cause notice was also issued to the
respondent to offer his explanation based on the enquiry report and only
after considering the reply, the disciplinary authority on concurring with
the findings of the Enquiry Officer imposed the punishment of
“Dismissal Without Notice from Bank Service”. In fact, in the appeal
preferred by the respondent before the Appellate Authority taking into
consideration the fourteen years of service put in by the respondent, the
Appellate Authority had modified the punishment from “Dismissal
Without Notice from Bank Service” to “Discharge from Service”. The
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learned Judge had reappraised the evidence and holding that the non
examination of the complainant in respect of first charge would be fatal
and that the enquiry is improper and perverse, had interfered in the
punishment imposed.
28. The scope of the Judicial Review by the High Court under
Article 226/227 of the Constitution of India, in respect of interfering with
the punishment imposed in the disciplinary enquiry is fairly well settled
and it has been consistently held that in judicial review, the Court ought
not to venture into reappraising the evidence and the Court can only see
whether enquiry has been conducted in a proper and fair manner. When
once the enquiry is found to be fair and proper, then it is for the
disciplinary authority to decide on the punishment to be imposed on
delinquent. The Courts in judicial review must only see whether the
decision making process is correct and not the correctness of the decision
itself. Only when the punishment imposed is not proportionate to the
charges and shocks the conscience of the Court, the Courts can interfere,
but even in such circumstances, the Court can only set aside and remand
the matter to the disciplinary authority for imposing the proportionate
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punishment.
29. At this juncture it would be relevant to refer to the following
decisions. The Hon’ble Supreme Court, in the case of B.C.Chaturvedi
Vs. Union of India and Another reported in (1995) 6 SCC 749,
analyzed the scope of judicial review and held as follows:
“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
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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 [(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
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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.
…
18. A review of the above legal position would
establish that the disciplinary authority, and on appeal the
appellate authority, being fact-finding authorities have
exclusive power to consider the evidence with a view to
maintain discipline. They are invested with the discretion to
impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on
penalty and impose some other penalty. If the punishment
imposed by the disciplinary authority or the appellate
authority shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty
imposed, or to shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate punishment
with cogent reasons in support thereof.”
30. Further in the case of High Court of Judicature at Bombay
Vs. Shashikant S.Patil and Another reported in (2000) 1 SCC 416, the
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Hon'ble Supreme Court dealing with Judicial review has held as follows:
“16. The Division Bench of the High Court seems
to have approached the case as though it was an appeal
against the order of the administrative/disciplinary
authority of the High Court. Interference with the decision
of departmental authorities can be permitted, while
exercising jurisdiction under Article 226 of the Constitution
if such authority had held proceedings in violation of the
principles of natural justice or in violation of statutory
regulations prescribing the mode of such enquiry or if the
decision of the authority is vitiated by considerations
extraneous to the evidence and merits of the case, or if the
conclusion made by the authority, on the very face of it, is
wholly arbitrary or capricious that no reasonable person
could have arrived at such a conclusion, or grounds very
similar to the above. But we cannot overlook that the
departmental authority (in this case the Disciplinary
Committee of the High Court) is the sole judge of the facts,
if the enquiry has been properly conducted. The settled
legal position is that if there is some legal evidence on
which the findings can be based, then adequacy or even
reliability of that evidence is not a matter for canvassing
before the High Court in a writ petition filed under Article
226 of the Constitution.”
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31. Again in the case of Union of India & Ors Vs. P.Gunasekaran
reported in (2015) 2 SCC 610, the Hon'ble Supreme Court has set out
the broad guidelines as to what should and should not be seen by the
High Court while exercising judicial review:
“12. 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,
reappreciating even the evidence before the enquiry officer.
The finding on Charge I 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
Articles 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;
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(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.
13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:
(i) reappreciate 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.
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(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.”
32. Further in the case of State Bank of India Vs. Narendra
Kumar Pandey reported in (2013) 2 SCC 740, the Hon'ble Supreme
Court had held that the proof required in a departmental proceeding in
not beyond doubt but only based on preponderance of probability. The
relevant portion is extracted hereunder:
“23. The inquiring authority has examined each and
every charge levelled against the charged officer and the
documents produced by the presenting officer and came to
the conclusion that most of the charges were proved. In a
departmental enquiry, the disciplinary authority is
expected to prove the charges on preponderance of
probability and not on proof beyond reasonable doubt.
Reference may be made to the judgments of this Court in
Union of India v. Sardar Bahadur [(1972) 4 SCC 618] and
R.S. Saini v. State of Punjab [(1999) 8 SCC 90 : 1999 SCC
(L&S) 1424]. The documents produced by the Bank, which
were not controverted by the charged officer, support all the
allegations and charges levelled against the charged officer.
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In a case, where the charged officer had failed to inspect the
documents in respect of the allegations raised by the Bank
and not controverted, it is always open to the inquiring
authority to accept the same.”
33. In the case of State Bank of India Vs. R.Periyasamy reported
in (2015) 3 SCC 101, the Hon'ble Supreme Court has held as follows:
“11. It is interesting to note that the learned Single
Judge went to the extent of observing that the concept of
preponderance of probabilities is alien to domestic
enquiries. On the contrary, it is well known that the
standard of proof that must be employed in domestic
enquiries is in fact that of the preponderance of
probabilities. In Union of India v. Sardar Bahadur [(1972) 4
SCC 618 : (1972) 2 SCR 218] , this Court held that a
disciplinary proceeding is not a criminal trial and thus, the
standard of proof required is that of preponderance of
probabilities and not proof beyond reasonable doubt. This
view was upheld by this Court in SBI v. Ramesh Dinkar
Punde [(2006) 7 SCC 212 : 2006 SCC (L&S) 1573]. More
recently, in SBI v. Narendra Kumar Pandey [(2013) 2 SCC
740 : (2013) 1 SCC (L&S) 459], this Court observed that a
disciplinary authority is expected to prove the charges
levelled against a bank officer on the preponderance of
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probabilities and not on proof beyond reasonable doubt.”
Further the standard of proof in disciplinary proceedings is
also reiterated in the recent Full Bench decision of the Hon'ble
Supreme Court in Union of India & Ors Vs. Dilip Paul, reported
in 2023 SCC OnLine SC 1423.
34. Further in the case of State Bank of India Vs. Ajay Kumar
Srivatsava reported in (2021) 2 SCC 612, the Hon'ble Supreme Court of
India has held that when the finding has been arrived at by the competent
authority based on some evidence, then the conclusion shall not be
disturbed. The relevant portion is extracted hereunder:
“24. It is thus settled that the power of judicial
review, of the constitutional courts, is an evaluation of the
decision-making process and not the merits of the decision
itself. It is to ensure fairness in treatment and not to ensure
fairness of conclusion. The court/tribunal may interfere in
the proceedings held against the delinquent if it is, in any
manner, inconsistent with the rules of natural justice or in
violation of the statutory rules prescribing the mode of
enquiry or where the conclusion or finding reached by the
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disciplinary authority is based on no evidence. If the
conclusion or finding be such as no reasonable person
would have ever reached or where the conclusions upon
consideration of the evidence reached by the disciplinary
authority are perverse or suffer from patent error on the
face of record or based on no evidence at all, a writ of
certiorari could be issued. To sum up, the scope of judicial
review cannot be extended to the examination of correctness
or reasonableness of a decision of authority as a matter of
fact.
25. When the disciplinary enquiry is conducted for
the alleged misconduct against the public servant, the court
is to examine and determine:
(i) whether the enquiry was held by the competent
authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on
some evidence and authority has power and jurisdiction to
reach finding of fact or conclusion.
...
28. The constitutional court while exercising its
jurisdiction of judicial review under Article 226 or Article
136 of the Constitution would not interfere with the findings
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of fact arrived at in the departmental enquiry proceedings
except in a case of mala fides or perversity i.e. where there
is no evidence to support a finding or where a finding is
such that no man acting reasonably and with objectivity
could have arrived at those findings and so long as there is
some evidence to support the conclusion arrived at by the
departmental authority, the same has to be sustained.”
35. Therefore it has to be only ensured as to whether the enquiry has
been conducted in a proper and fair manner and sufficient opportunity
has been provided to the delinquent. The adequacy or reliability of
evidence is not relevant and so long as there is some evidence to support
the conclusion arrived at by the departmental authority, the same has to
be sustained. As such when the documents have been marked and proper
domestic enquiry has been conducted by affording fair opportunity to the
respondent and there are materials and evidences to substantiate
particularly Charge No.1, in respect of the irregularity committed by the
respondent, it cannot be held to be case of no evidence, only on the
ground that the complainant was not examined, when the respondent was
not able to dislodge the materials available particularly in PEX-1 to PEX-
3, where he has signed in the reverse of the cheque and received the cash
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through the Payment Scroll Register.
36. The Enquiry Officer, based on the materials available, had come
to a conclusion and rendered findings holding that the charges as proved.
As held in the above decisions, the High Court cannot sit in appeal over
the finding rendered by reappraising the evidences in Judicial Review.
The learned Judge had in fact reappraised the evidences and had arrived
at a conclusion that the enquiry proceedings were not proper and
irregular and thereby had interfered in the punishment imposed by the
disciplinary authority, which is legally impermissible.
37. In view of the above discussions, we are of the considered
opinion that the enquiry has been conducted in a fair and proper manner
by affording sufficient opportunities to the respondent and therefore the
order of the learned Judge holding that the fair treatment has not been
given to the respondent cannot be sustained.
38. When once the enquiry conducted has been found to be
proper and the report submitted by the Enquiry officer had also been
based on materials and evidences available which have been accepted,
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then it is for the Disciplinary Authority and the Appellate Authority to
decide on the quantum of punishment to be imposed on the delinquent.
The Disciplinary Authority had agreed with the findings of the Enquiry
Officer and imposed punishment of dismissal without notice from Bank
Service, however the Appellate Authority had taken a lenient view by
considering 14 years of service and modified the punishment to one of
discharge from service.
39. The respondent being an employee of the public Bank,
where the money of customers and public at large are dealt with, high
standard of integrity and honesty is expected from the respondent. When
the respondent had acted prejudicial to the interest of the customer,
which will erode the public trust and confidence over the Bank by which
the prospects of the Bank would be adversely affected, we are of the
considered view that the punishment imposed is not disproportionate
shocking our conscience, but rather proportionate to the charges leveled
against the respondent. The other decisions relied on by the respondent
are not relevant to the facts of the present case.
40. In view of the above findings, we have no hesitation interfering
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in the orders passed by the learned Judge and accordingly the impugned
order passed in the Writ Petition is set aside and the punishment imposed
by the disciplinary authority as modified by the Appellate Authority
stands restored.
41. Resultantly, the Writ Appeal stands allowed. Consequently,
connected miscellaneous petitions are closed. No costs.
(A.S.M.,J) (G.A.M.,J)
27.09.2024
Index: Yes/No
Neutral Citation : Yes/No
sma
To
1. The Managing Director,
State Bank of India,
Central Office,
Post Box No.12,
Mumbai – 400 021.
2. The Chief General Manager,
State Bank of India,
Local Head Office, “CIRCLETOP” House”.
18, College Lane,
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Chennai – 600 008.
3. The Deputy General Manager ( Appellate Authority),
State Bank of India,
Zonal Office, Ambedkar Road,
Madurai – 625 002.
4. The Assistant General Manager,
Region -II ( Disciplinary Authority),
State Bank of Inida, Zonal Office, Madurai.
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