Sri Bidyadhar Mallick vs Uco Bank
2025 Latest Caselaw 6517 Ori

Therefore, the contention raised by Sri Surendra Nath Panda, learned Advocate for the petitioner stands dismissed lacking merit on facts.

8. The second limb of argument of Sri Surendra Nath Panda, learned Advocate proceeds on the basis of new stance taken by way of rejoinder affidavit dated 27.08.2024. It is contended by the learned counsel that the incidents/events or alleged transactions under allegations/charges being beyond more than four years, the enquiry could not have been conducted for such stale allegations being hit by limitation as stipulated in a document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner". He relied on Clause (22) of said document which reads thus:

"Every Bank has evolved a system of credit audit/ inspection for non-borrowal/borrowal accounts under which they are subjected to close scrutiny. This audit/ inspection would scrutinize pre-sanction appraisal, documentation and disbursement of loans/advances and post-sanction follow up. If any irregularity is missed out by auditors/inspections in the first audit/inspection, it is reasonable to expect that the remaining undetected irregularities will be detected in the second audit/inspection and necessary disciplinary proceeding initiated against the concerned officials in the follow up action. Normally the second audit/inspection would be completed within 3-4 years. The Commission has accordingly approved the proposal that no disciplinary

proceeding will ordinarily lie against any official for any lapse not detected within two successive internal regular audits/inspections of the same account or 4 years from the date of event, whichever is later. In case any irregularity is detected subsequent to the second audit/inspection, the auditors/inspectors concerned will be held accountable and be liable for disciplinary proceedings. This time limit will not apply cases of (i) fraud, (ii) other criminal offences, or (iii) cases where mala fides are inferable."

8.1. For the following reasons, this Court is not inclined to entertain such a plea taken at the belated stage:

i. Learned counsel for the petitioner failed to explain the authenticity of the document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner". Complete document is not placed on record by the petitioner. As if said document is made effective from 25.08.1998, heavy reliance is placed by the learned counsel for the petitioner. Rather bare reading of said document reveals "The Commission has been accorded statutory status with effect from 25.08.1998 through the Central Vigilance Commission Ordinance, 1998". In absence of any material to show that such document as enclosed to rejoinder affidavit has been brought to force by way of valid law and that the document relied upon has been issued in

exercise of statutory provisions with duly delegated authority conferred on the competent authority, this Court is not obligated to examine the issue raised by the learned counsel for the petitioner.

ii. As such a plea is not available neither before the Enquiry Officer nor the Disciplinary Authority or the Appellate Authority or did the petitioner raise the plea of limitation based on such document in the writ application, the same does not deserve examination in view of Rule 10 of Chapter-XV of the Rules of the High Court of Orissa, 1948, whereby it is stipulated that "a further reply or counter-affidavit by any party to the proceedings, as the circumstances may require may be filed with the leave of the Court". No such leave has been sought for by the petitioner before this Court. Therefore, the ground of limitation based on inchoate document "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner" without demonstrating the statutory force of such document could not be argued by Sri Surendra Nath Panda, learned Advocate for the petitioner. Resultantly, such a plea, being vexatious, would have attracted imposition of costs regard being had to the change of stance by the petitioner from time

to time, but recognizing the anxiety on behalf of the petitioner and taking note of age of the petitioner who is stated to be about 60 years in the year 2011 and dismissed from service, this Court desists from doing so.

iii. Glance at the said document enclosed to rejoinder affidavit does not reveal its statutory support. As it appears, said document relates to the Central Vigilance Commissioner (CVC).

iv. It is not cited by the learned counsel for the petitioner whether the enquiry and disciplinary proceeding in question emanates from the audit/ inspection undertaken by the CVC.

v. Recital of Clause (22) of the document "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner" does not reveal the period of limitation is having statutory force. Careful reading of such clause would suggest that the proceeding is to be drawn up against the auditors/inspectors who were accountable for having not detected irregularity at the first instance, but detected the same subsequently.

vi. The words "normally" and "ordinarily" employed in the said document have significance.

The Hon'ble Supreme Court of India in Jasbhai Motibhai Desai Vrs. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671 held,

"The expression „ordinarily‟ indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it."

In Commissioner of Customs Vrs. J.D. Orgochem Limited, (2008) 6 SCR 200 it has been held,

"The expression „ordinarily‟ may mean „normally‟. It has been held by this Court in Kailash Chandra Vrs. Union of India and Krishangopal Vrs. Shri Prakashchandra and Ors., (1974) 1 SCC 12, that the said expression must be understood in the context in which it has been used and, thus, „Ordinarily‟ may not mean „solely‟ or „in the name‟, and thus, if under no circumstance an appeal would lie to the Principal District Judge, the Court would not be subordinate to it. When in a common parlance the expression „ordinarily‟ is used, there may be an option. There may be cases where an exception can be made out. It is

never used in reference to a case where there is no exception. It never means „primarily‟."

This Court in Division Bench in the case of Union of India Vrs. Krishna Chandra Biswas, 2023 SCC OnLine Ori 6002, taking note of aforesaid decision, observed as follows:

"49. Taking into account the principles of construction of meaning of word in the provision of a statute, the meaning of the word „ordinarily‟ can be couched as interpreted by the Hon‟ble Supreme Court. In Kailash Chandra Vrs. Union of India, (1962) 1 SCR 374 = AIR 1961 SC 1346; Eicher Tractors Ltd. Vrs. Commissioner of Customs, (2001) 1 SCC 315 = AIR 2001 SC 196; State of Andhra Pradesh Vrs. Sarma Rao, (2007) 2 SCC 159 = AIR 2007 SC 137, the meaning of the word „ordinarily‟ has been given to understand as „in the large majority of cases but not invariably‟. The expression „ordinarily‟ means normally and it is used where there can be an exception. „Ordinarily‟ excludes extraordinary or special circumstances.

50. In Mohan Baitha Vrs. State of Bihar, (2001) 4 SCC 350 the use of the word „ordinarily‟ has been meant to have indicated that the provision is a general one and must be read subject to the special provisions contained in the Criminal Procedure Code. That apart, the Court has taken the view that the exceptions implied by the word „ordinarily‟ need not be

limited to those specially provided for by the law and exceptions may be provided by law on considerations of convenience or may be implied from other provisions of law permitting joint trial of offences by the same Court.

51. In Krishan Gopal Vrs. Shri Prakashchandra, (1974) 1 SCC 128, it has been discussed that the word „ordinarily‟ does not indicate that the provisions of sub-section (2) of Section 80-A of the Representation of the People Act, 1951, are not mandatory and that relaxation in compliance with those provisions is permissible. The word „ordinarily‟ only qualifies the number of judges who can exercise the jurisdiction, which is vested in the High Court to try an election petition. The said word indicates that normally it would be a single Judge of the High Court who can exercise the jurisdiction which is vested in the High Court, but in appropriate cases, such jurisdiction can also be exercised by two or more judges."

Taking cue from above interpretation of the expression "normally" and "ordinarily", natural corollary would be that, the limitation specified in Clause (22) of the document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner" cannot be the "sole" or "primary"

factor to obliterate entire proceeding as suggested by the learned counsel for the petitioner.

8.2. It is trite that limitation being mixed question of fact and law, the same ought to be raised at appropriate stage before the proper authority or the Court having jurisdiction to adjudicate issue on facts.

8.3. For the above reasons as discussed above, this Court is not persuaded to accede to the argument advanced by Sri Surendra Nath Panda, learned Advocate for the petitioner that the entire disciplinary proceeding including the enquiry proceeding is barred by time and therefore, vitiated.

9. The last ditch attempt valiantly made by Sri Surendra Nath Panda, learned Advocate to render relief to the petitioner was that imposition of major penalty does not commensurate with the misconduct or irregularities established by the quasi-judicial authorities and such penalty being disproportionate to the material on record, the Orders in Annexures-7 and 10 are liable for intervention of this Court.

9.1. Scanned through the Enquiry Proceeding Register it would reveal that to the questions put by the Presenting Officer on 15.09.2010, the petitioner has responded by saying "verbal instructions was given", "I have no knowledge of loan policy", "I do not know" about

delegated power for sanction of TL, "Delegated power is not known to me" while sanctioning TL beyond Rs.4 lakhs, "Lien was not marked in the renewed two KYs nor in the related CFD ledgers". These are viewed very seriously by the Disciplinary Authority. After threadbare discussion factually the Disciplinary Authority justified the finding contained in the Report vis-à-vis seventeen allegations in seriatim and imposed major penalty in respect of charges framed. The Disciplinary Authority passed order to dismiss the petitioner. Such finding of fact as also the penalty so imposed has been confirmed by the Appellate Authority after factual discussion with reference to material available on record on the grounds set out before him.

9.2. During the course of hearing in the present case on a query from this Court, Sri Surendra Nath Panda, learned Advocate for the petitioner candidly admitted that no plea was raised before any of the Authorities with respect to infraction of Clauses (13) and (17) of Regulation 6 of Regulations, 1976. The plea with respect to limitation as stated to be contained in "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner"

has been taken for the first time by way of rejoinder affidavit, which was filed without compliance of Rule 10(2) of the Rules of the High Court of Orissa, 1948. It is

also not the case of the petitioner that fact-finding by the Disciplinary Authority as confirmed by the Appellate Authority is perverse and contrary to record.

9.3. In Rajendra Singh Vrs. State of M.P., (1996) 5 SCC 460 it has been stated thus:

"6. It has been held by a Constitution Bench of this Court in Har Shankar Vrs. Deputy Excise and Taxation Commissioner, (1975) 1 SCC 737 = AIR 1975 SC 1121 that: (SCC p. 748, para 22)

„[T]he writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred.‟

At the same time, it was observed that the licensees are not precluded from seeking to enforce the statutory provisions governing the contract. It must, however, be remembered that we are dealing with parties to a contract, which is a business transaction, no doubt governed by statutory provisions. [Reference may also be made to the decision of this Court in Assistant Excise Commissioner Vrs. Issac Peter, (1994) 4 SCC 104.] While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted.

Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. In other words, wherever a complaint of violation of a mandatory provision is made, the court should enquire-- in whose interest is the provision conceived. If it is not conceived in the interest of the public, question of waiver and/or acquiescence may arise -- subject, of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Court in State Bank of Patiala Vrs. S.K. Sharma, (1996) 3 SCC 364 and in Krishan Lal Vrs. State of J&K, (1994) 4 SCC 422 on the basis of a large number of decisions on the subject. Though the said decisions were rendered with reference to the statutory rules and statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involving government servants and employees of statutory Corporations, the principles adumbrated therein are of general application. It is necessary to keep these considerations in mind while deciding whether any interference is called for by the court-- whether under Article 226 or in a suit. The function of the court is not a mechanical one. It is always a considered course of action."

9.4. In Chintamani Industries Vrs. Commissioner, Sales Tax, 107 (2009) CLT 232 it has been laid down that,

"16. Mr. Paikray, learned counsel for the petitioner, has also not been able to satisfy this court in what

manner any prejudice was caused to the petitioner because of cancellation of registration certificate of the petitioner with effect from April 1, 1999, when it had no business during the preceding three consecutive financial years and also in the year 1999-2000. The honourable apex court in Rajendra Singh Vrs. State of Madhya Pradesh AIR 1996 SC 2736 held that while examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provision, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course.

17. It is also well-settled principle of law that the courts are meant to determine the rule on living issues and not any academic question as it would be a futile exercise. The honourable Supreme Court in Loknath Padhan Vrs. Birendra Kumar Sahu AIR 1974 SC 505 held that it is a well-settled practice recognised and followed in India that if an issue is purely academic in that its decision, which one way or the other would have no impact on the position of the parties, it would be a wastage of public time and indeed not proper exercise of authority for the court to engage itself in deciding such issue."

9.5. Though as many as eight grounds have been taken by the writ petitioner at paragraph 16 of the writ petition (already extracted hereinabove), Sri Surendra Nath Panda, learned Advocate for the petitioner has not pressed them which are based on factual analysis of the material on record. The arguments with regard to violation of procedural aspect as contained in Clause (13) and Clause (17) of Regulation 6 of the Regulations, 1976, and the objection as to limitation have been repelled hitherto. In such view of the matter this Court is loathe in intermeddling with the punishment imposed on factual analysis of the matter by the authorities.

9.6. The learned counsel for the petitioner stemming on paragraphs 15 and 19 of Commissioner of Police Vrs. Sat Narayan Kaushik, (2016) 6 SCC 303 sought to impress upon this Court that there is scope for indulgence in the Orders impugned imposing major penalty and matter can be viewed leniently with pragmatic approach by way of judicial discretion in favour of the petitioner. Said reported judgment reads as:

"15. Coming to the first two submissions of the learned counsel for the appellant, we are of the view that the High Court, in exercise of its writ jurisdiction, has power to interfere with the quantum of punishment imposed by the appointing authority in an appropriate case provided the High Court has taken into consideration the totality of the facts and

circumstances of the case such as nature of charges levelled against the employee, its gravity, seriousness, whether proved and, if so, to what extent, entire service record, work done in the past, remaining tenure of the delinquent left, etc. In other words, it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment.

19. Having regard to the peculiar facts of the case in hand, we are of the considered opinion that the High Court erred in holding that the respondent was not entitled to claim any service benefits from 02.07.2009. Instead it should have been held that the respondent was not entitled to claim any service benefits from the date of his suspension order i.e. from 22.06.2008. In our view, the impugned order [Sat Narayan Kaushik Vrs. Commissioner of Police, 2015 SCC OnLine Del 14456] of the High Court requires to be modified to this extent in favour of the appellants and against the respondent."

9.7. This Court on taking holistic view, does not feel it apposite to consider that the case of the petitioner falls within the parameters propounded in the Sat Narayan Kaushik (supra). In contrast, regard being had to Bhaskar Chandra Mohapatra Vrs. The Disciplinary Authority, UCO Bank, 2015 (II) OLR 1042, where ratio of very many decisions have been taken note of, would lead to show that judicial review, on facts, is impermissible. This Court has been pleased to observe that,

"8. So far as the jurisdiction of the Court to interfere with the quantum of punishment is concerned, it is well settled that it is within the complete domain of the Disciplinary Authority. Whether on the basis of facts alleged the punishment imposed by the Disciplinary Authority is proportionate or not or it is required to be reduced that can be considered at the discretion of the Disciplinary Authority. Therefore, what is appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the discretion of the Disciplinary Authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charge of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of

decision rendered by the superior Court. This view has also been taken in Ranjit Thakur Vrs. Union of India, (1987) 4 SCC 611 = AIR 1987 SC 2386, Dev Singh Vrs. Punjab Tourism Development Corporation Limited, (2003) 8 SCC 9 = AIR 2003 3712, Union of India Vrs. Ganayutham, (1997) 7 SCC 463 = AIR 1997 SC 3387, Ex-Naik Sardar Singh Vrs. Union of India, (1991) 3 SCC 213 = AIR 1992 SC 417, Om Kumar Vrs. Union of India, (2001) 2 SCC 386 = AIR 2000 SC 3689. Similar view has also been taken by this Court in Girish Mohanty Vrs. Union of India represented through its Secretary in Home Department, New Delhi and others in OJC No. 2607 of 2001 disposed of on 03.03.2015 [2015 SCC OnLine Ori 70].

9. In Deputy Commissioner, KVS & others Vrs. J.

Hussain, AIR 2014 SC 766, the apex Court has held that host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. Therefore, in exercise of power under judicial review, the apex Court time and again has held that the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of

good faith. In paragraph-11 of the said judgment, the apex Court held as follows:

„*** In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust & Anr. Vrs. State of Karnataka & Ors. (2006) 1 SCC 430 in the following words:

„A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforesaid principles in view, we may hereinafter notice a few recent decisions of this Court.‟

Similar view has also been taken in Krushna Chandra Behera Vrs. Union of India and others in W.P.(C) No. 1845 of 2006 disposed of on 12.03.2015 [2015 (I) OLR 725].

10. In Jogeswar Bagh Vrs. Registrar (Admn) Orissa High Court, 2009 (II) OLR 483 referred to above, though the apex Court has held the scope of judicial review is limited to the extent that Court may examine whether the enquiry has been conducted inconsonance with the statutory requirement and

authority has given strict adherence to the principle of natural justice, the decision has been taken relying upon relevant materials and order is not perverse being based on irrelevant materials and the delinquent had been given a fair opportunity to meet the charge and punishment is not disproportionate to the gravity of the misconduct. However, in exceptional circumstances, where the punishment imposed is disproportionate to the delinquency to the extent that it shocks the conscience of the Court, the Court may interfere with the quantum of punishment also. But this principle of interference on quantum of punishment is not applicable to the present context in view of the fact that there is a procedural lapses in conducting the inquiry. More particularly the provisions contained under sub-Regulation (13) of Regulation 6 has not been complied with since the imposition of penalty is well within the complete domain of the Disciplinary Authority. In judicial review, this Court refrains from interfering with the same in the present application.

11. In B.C. Chaturvedi Vrs. Union of India & Ors., AIR 1996 SC 484, the Apex Court observed that in exercise of powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by the Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. This principle of the

Apex Court cannot be applicable in the present context in view of the fact that since there is a procedural lapse by the authority while conducting the inquiry as the discretion lies with the Disciplinary Authority to impose the particular punishment.

12. Reference has been made to the case of Ram Prit Singh Vrs. Union of India, 2010 (I) OLR 51 where a minor penalty imposed by withholding one increment of pay for a period of one year without cumulative effect has been considered to be disproportionate to the nature of misconduct established against him. Accordingly, this Court let off with the punishment of censure or warning, but this principle is not applicable to the present context.

13. So far as applicability of the case of Nirmala J. Jhala Vrs. State of Gujarat, 2013 (I) CLR (SC) 940 = (2013) 5 SCR 200 and R. Mahalingam Vrs. Chairman, Tamilnadu PSC, AIR 2013 SC 2225 is concerned, the same has been decided by the apex Court in its own facts and circumstances of the case itself.

14. So far as Atlas Cycle (Haryana) Ltd. Vrs. Kitab Singh, AIR 2013 SC 1172 = (2013) 1 SCR 611 is concerned the same arose out of industrial dispute case where the apex Court held that if the finding of the facts recorded by Labour Court is in disregard to evidence interference by writ Court would be sustained.

15. Reliance has been placed on Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) Vrs. Rajendra Singh, AIR 2013 SC 3540 by the opposite party-Bank, wherein the apex Court has held that

punishment which is to be awarded to the delinquent is for the Disciplinary Authority to decide not for the Court. The quantum of punishment even if found disproportionate matter has to be referred back to disciplinary authority to take fresh decision and Court cannot usurp jurisdiction of Disciplinary Authority and decide the punishment subject to exception laid down in the said judgment."

9.8. This Court finds the finding returned by the Disciplinary Authority is on analysis of evidence on record with reference to Report submitted by the Enquiry Officer and the Appellate Authority having regard to grounds and objections of the petitioner upheld the punishment imposed by the Disciplinary Authority. Therefore, this Court has little scope in exercise of power under Article 226/227 of the Constitution of India to meddle with the concurrent view expressed by the quasi-judicial authorities on factual matrix.

Scope of judicial review-- Legal perspective:

10. This Court feels it expedient to discuss on the principles laid down with respect to scope of judicial review in the matter of conclusion arrived at by the Disciplinary Authority and appreciation of evidence.

10.1. The Supreme Court in the case of State of Rajasthan Vrs.

Heem Singh, (2021) 12 SCC 569 has held as under:

"37. 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 recognised 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 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 reappreciate 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.

***

40. In the present case, the respondent was acquitted of the charge of murder. The circumstances in which the trial led to an acquittal have been elucidated in detail above. The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a

disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are, as we have seen earlier, circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force."

10.2. The Supreme Court in the case of State of Karnataka Vrs. N. Gangraj, (2020) 3 SCC 423 has held as under:

"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.

9. In State of A.P. Vrs. S. Sree Rama Rao, AIR 1963 SC 1723, a three-Judge Bench of this Court has held that the High Court is not a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:

„7. *** The High Court is not constituted in a proceeding under Article 226 of the

Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.‟ ***"

10. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, again a three-Judge Bench of this Court has held that power of 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 eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:

„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 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 Vrs. H.C. Goel, (1964) 4 SCR 718, 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.‟

11. In High Court of Bombay Vrs. Shashikant S. Patil, (2000) 1 SCC 416, this Court held that interference with the decision of departmental authorities is permitted 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 while exercising jurisdiction under Article 226 of the Constitution. It was held as under:

„16. The Division Bench [Shashikant S. Patil Vrs.

High Court of Bombay, 1998 SCC OnLine Bom 97 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.‟

12. In State Bank of Bikaner & Jaipur Vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry,

nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:

„7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC

749, Union of India Vrs. G. Ganayutham, (1997) 7 SCC 463 and Bank of India Vrs.

Degala Suryanarayana, (1999) 5 SCC 762, High Court of Bombay Vrs. Shashikant S. Patil, (2000) 1 SCC 416.)

***

10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.‟

13. In another judgment reported as Union of India Vrs.

P. Gunasekaran, (2015) 2 SCC 6101, this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:

„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;

1    Paragraph 12 of said Judgment in P. Gunasekaran, (2015) 2 SCC 610 runs as
     follows:

"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;

(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."

(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.‟

14. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank Vrs. Krishna Narayan Tewari, (2017) 2 SCC 308, wherein this Court held that if the Disciplinary Authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.

15. The Disciplinary Authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the

State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in State of A.P. Vrs. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749 as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law.‟ ***"

10.3. The Supreme Court in the case of State Bank of India Vrs. Ramesh Dinkar Punde, (2006) 7 SCC 212 has held as under:

"6. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an Appellate Authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an Appellate Authority:

„Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority.‟ [See Govt. of A.P. Vrs. Mohd. Nasrullah Khan, (2006) 2 SCC 373].

9. It is impermissible for the High Court to reappreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record.

12. From the facts collected and the report submitted by the inquiry officer, which has been accepted by the disciplinary authority and the Appellate Authority, active connivance of the respondent is eloquent enough to connect the respondent with the issue of TDRs and overdrafts in favour of Bidaye.

15. In Union of India Vrs. Sardar Bahadur, (1972) 4 SCC 618 = (1972) 2 SCR 218 it is held as under:

„A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the Single Judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts. (SCR p. 219)

16. In Union of India Vrs. Parma Nanda, (1989) 2 SCC 177 it is held at SCC p. 189, para 27 as under:

„27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.‟

17. In Union Bank of India Vrs. Vishwa Mohan, (1998) 4 SCC 310 this Court held at SCC p.

315, para 12 as under:

„12. After hearing the rival contentions, we are of the firm view that all the four charge- sheets which were enquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non- supply of the enquiry authority‟s report/ findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non- furnishing of the enquiry report/findings to him.‟

18. In Chairman and MD, United Commercial Bank Vrs. P.C. Kakkar, (2003) 4 SCC 364 this Court held at SCC pp. 376-77, para 14 as under:

„14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers.

Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost

integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager Vrs. Nikunja Bihari Patnaik, (1996) 9 SCC 69 it is no defence available to say that there was no loss or profit resulted in case, when the officer/ employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere.

Acting beyond one‟s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.‟

19. In Regional Manager, U.P. SRTC Vrs. Hoti Lal, (2003) 3 SCC 605 it was pointed out as under:

(SCC p. 614, para 10)

„If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the

person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.‟

20. In Cholan Roadways Ltd. Vrs. G. Thirugnanasambandam, (2005) 3 SCC 241 this Court at SCC p. 247, para 15 held:

„15. It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry.‟

***"

10.4. The Supreme Court in the case of Union of India Vrs.

K.G. Soni, (2006) 6 SCC 794 has held as under:

"14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Associated Provincial Picture Houses Ltd. Vrs. Wednesbury Corpn., [1948] 1 K.B. 223 = [1947] 2 All ER 680 (CA) the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.

15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.

16. The above position was recently reiterated in Damoh Panna Sagar Rural Regional Bank Vrs. Munna Lal Jain, (2005) 10 SCC 84."

10.5. The Supreme Court in the case of Om Kumar Vrs. Union of India, (2001) 2 SCC 386 has held as under:

„70. In this context, we shall only refer to these cases. In Ranjit Thakur Vrs. Union of India, (1987) 4 SCC 611 this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749 this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham, (1997) 7 SCC 463 [Union

of India Vrs. G. Ganayutham, (1997) Supp.(3) SCR 549].

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."

10.6. The Supreme Court in the case of Mithilesh Singh Vrs.

Union of India, (2003) 3 SCC 309 has held as under:

"9. The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made to a few of them. [See, B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, State of U.P. Vrs. Ashok Kumar Singh, (1996) 1 SCC 302, Union of India Vrs. G.

Ganayutham, (1997) 7 SCC 463, Union of India Vrs.

J.R. Dhiman, (1999) 6 SCC 403 and Om Kumar Vrs. Union of India, (2001) 2 SCC 386]."

10.7. The Supreme Court in the case of General Manager (P), Punjab & Sind Bank Vrs. Daya Singh, (2010) 11 SCC 233, has held as under:

"22. In view of what is stated above, it is very clear that the Bank had taken the necessary steps to establish the misconduct before the enquiry officer. The relevant documents including ledger entries were produced through the witnesses concerned. The respondent fully participated in the enquiry. He had no explanation to offer during the course of the enquiry or any time thereafter. When all the relevant entries were in the handwriting of the respondent, the Bank did not think it necessary to call the borrowers. In fact, as the enquiry officer states, the respondent should have produced the borrowers if he wanted to contend anything against the documentary evidence produced by the Bank. In the circumstances, the conclusions arrived at by the enquiry officer as stated above could not have been held as without any evidence in support. The High Court has clearly erred in holding that the documents produced were neither detailed nor their nature was explained.

23. We are rather amazed at the manner in which the High Court has dealt with the material on record. The enquiry officer is an officer of a Bank. He was considering the material which was placed before him and thereafter, he has come to the conclusion that the misconduct is established. He was

concerned with a serious charge of unexplained withdrawals of huge amounts by a Branch Manager in the name of fictitious persons. Once the necessary material was placed on record and when the charge-sheeted officer had no explanation to offer, the enquiry officer could not have taken any other view. The order of a bank officer may not be written in the manner in which a judicial officer would write. Yet what one has to see is whether the order is sufficiently clear and contains the reasons in justification for the conclusion arrived at. The High Court has ignored this aspect.

24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics Vrs. CCE, 1994 Supp (3) SCC 665 = AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu Vrs. State,

(2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained.

25. As held in T.N.C.S. Corpn. Ltd. Vrs. K. Meerabai, (2006) 2 SCC 255 the scope of judicial review for the High Court in departmental disciplinary matters is limited. The observations of this Court in Bank of India Vrs. Degala Suryanarayana, (1999) 5 SCC 762 are quite instructive:

„11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting 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 that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India Vrs. H.C. Goel,

AIR 1964 SC 364 = (1964) 4 SCR 718 the Constitution Bench has held: (AIR p. 370, para

23)

„23. *** the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.‟ ***‟

26. In a number of cases including SBI Vrs. Bela Bagchi, (2005) 7 SCC 435 this Court has held that a bank employee has to exercise a higher degree of honesty and integrity. He is concerned with the deposits of the customers of the bank and he cannot permit the deposits to be tinkered with in any manner.

27. In Damoh Panna Sagar Rural Regional Bank case, (2005) 10 SCC 84 the manager of a bank who had indulged in unauthorised withdrawals, subsequently returned the amount with interest. Yet this Court has held that this conduct of unauthorised withdrawals amounted to a serious misconduct. Same is the case in the present matter. There was a clear documentary evidence on record in the handwriting of the respondent which established his role in the withdrawal of huge

amounts for fictitious persons. The ledger entries clearly showed that whereas the FDRs were in one name, the withdrawals were shown in the name of altogether different persons and they were far in excess over the amounts of FDRs. The respondent had no explanation and, therefore, it had to be held that the respondent had misappropriated the amount. In spite of a well-reasoned order by the enquiry officer, the High Court has interfered therein by calling the same as sketchy. The High Court has completely overlooked the role of the bank manager as expected by this Court in the aforesaid judgments."

Conclusion:

11. With the conspectus of legal position as enunciated through various decisions qua scope of interference with the findings and conclusions arrived at by the Disciplinary Authority with reference to Report of the Enquiry Officer in exercise of extraordinary discretionary jurisdiction under Article 226/227 of the Constitution of India, on examination of factual scenario as obtained in the instant case, this Court wishes inter alia to make certain observations on the discussions made in the foregoing paragraphs:

i. Ample opportunity has been afforded by the Enquiry Officer and the Disciplinary Authority as also the Appellate Authority.

ii. No plea respecting infraction of procedural provisions contained in Clauses (13) and (17) Regulation 6 of the Regulations, 1976 was ever taken before any authority or before this Court in the writ petition. Notwithstanding such fact, this Court on perusal of material on record finds that the appropriate authority has adhered to safeguard provided for the delinquent-Charge Sheeted Officer and at every stage, the petitioner was afforded reasonable opportunity to defend his case.

iii. Though grounds in the writ petition has been taken against certain factual aspects, at the stage of hearing of the present matter, nothing tangible could be established to demonstrate that there was perversity of factual finding returned by the authorities-- the Enquiry Officer, the Disciplinary Authority and the Appellate Authority. This Court finds no patent error of fact to depict that the findings recorded by the authorities are de hors material available on record and beyond weight of evidence. Evidence of the petitioner, for example, not knowing about the policy with respect to sanction of loan, unaware of delegated power so far as limit of sanction of loan is concerned and engaging strangers/outsiders on the basis of alleged verbal instructions, &c., evince that the

petitioner was not sincere and has not shown sobriety in discharge of his duty as Manager. By engaging strangers and allowing them to handle official records and giving them access to official records definitely left the Bank at risk.

The stance of the opposite parties can be buttressed by referring to Disciplinary Authority- Cum-Regional Manager Vrs. Nikunja Bihari Patnaik, (1996) 9 SCC 69, wherein it has been observed as follows:

"7. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every officer/ employee of the bank to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. It requires the officer/ employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him. Breach of Regulation 3 is „misconduct‟ within the meaning of Regulation 24. The findings of the Inquiry Officer which have been accepted by the Disciplinary Authority, and which have not been disturbed by the High Court, clearly show

that in a number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority. True, it is that in some cases, no loss has resulted from such acts. It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy; the advances have become sticky and irrecoverable. It is not a single act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a bank-- for that matter, in the case of any other organisation-- every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank would become chaotic and unmanageable. Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations. The very act of acting beyond authority-- that too a course of conduct spread over a sufficiently long period and involving

innumerable instances-- is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases but they may also lead to huge losses. Such adventures are not given to the employees of banks which deal with public funds. If what we hear about the reasons for the collapse of Barings Bank is true, it is attributable to the acts of one of its employees, Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority. As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere. Acting beyond one‟s authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation

24. No further proof of loss is really necessary though as a matter of fact, in this case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit-- huge profit, as the High Court characterises it-- they are no less blameworthy. It is wrong to characterise them as errors of judgment. It is not suggested that the respondent being a Class I Officer was not aware of the limits of his authority or of his powers. Indeed, Charge 9, which has been held established in full is to the effect that in spite of instructions by the Regional Office to

stop such practice, the respondent continued to indulge in such acts. The Inquiry Officer has recorded a clear finding that the respondent did flout the said instructions and has thereby committed an act of disobedience of lawful orders. Similarly, Charge 8, which has also been established in full is to the effect that in spite of reminders, the respondent did not submit "Control Returns" to the Regional Office. We fail to understand how could all this be characterised as errors of judgment and not as misconduct as defined by the Regulations. We are of the opinion that the High Court has committed a clear error in holding that the aforesaid conduct of the respondent does not amount to misconduct or that it does not constitute violation of Regulations 3 and 24."

iv. The petitioner was given opportunity to verify the genuineness of the documents which were relied upon by the authorities. The petitioner was represented by the Defence Counsel/Defence Representative who examined the petitioner and cross-examined Management Witnesses, which fact does clearly emanate from the Enquiry Proceeding Register, copy of which is made available to the Court by way of enclosure to the affidavit dated 19.03.2025 filed by the opposite parties.

     v.    Once the petitioner did not question the recording
           of   statements        made     by    him     as    also    the

Management Witnesses before the Enquiry Officer

on the basis of documents/material on record, and he has not impeached any of the documents available on record, he cannot make a complaint that he was not examined as a witness to prove the documents and the documents were proved merely by presentation by the Presenting Officer. Once the authenticity is not disputed, in view of the dicta of Hon'ble Supreme Court of India that strict rule of evidence in departmental enquiry is not applicable and the fact-finding of the Disciplinary Authority can be based on preponderance of probabilities (in contradistinguished with the principle of "beyond all reasonable doubts" as in criminal case), this Court is of the considered opinion that no fault could be attributed by the petitioner in the proceedings undertaken by the Enquiry Officer, the Disciplinary Authority and the Appellate Authority.

vi. Though rejoinder affidavit dated 27.08.2024 has been filed by the petitioner without complying with the provisions of Rule 10 of Chapter-XV of the Rules of the High Court of Orissa, 1948, setting up new and different stand with respect to limitation based on Paragraph 22 of copy of incomplete document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner", this Court

rejecting such attack on the initiation of proceeding makes it clear that nothing is placed on record as to the authenticity of such document. No material is available to show that such document has been notified and there is absence of source of power for issue of such document including fixation of limitation by proper and competent authority. Mere filing a document by way of an affidavit without disclosing its source and revealing the existence of power countenanced by statutory provisions would not obligate this Court to examine the issue.

11.1. So far as the findings recorded by the Enquiry Officer are concerned, it is sufficient to mention that in case there is some evidence to reasonably support the findings of the Enquiry Officer, and the Disciplinary Authority taking into consideration each allegation vis-à- vis explanation offered by the petitioner confirms the charges to be proved, which got affirmation by the Appellate Authority, in absence of demonstrating that the facts are perverse, the petitioner cannot successfully plead by advancing arguments on technicalities, like procedural infirmity and limitation.

12. In course of hearing, Surendra Nath Panda, learned Advocate for the petitioner has confined his arguments to the following points to attack the Order dated 29.12.2010 of the Disciplinary Authority (Annexure-7)

and Order dated 25.04.2011 of the Appellate Authority (Annexure-10):

i. Violation of Clauses (13) and (17) of Regulation 6 of the Regulations, 1976;

ii. Limitation as envisaged in Paragraph 22 of the document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner". Since no fraud element is involved in the allegations, the exception to such limitation so stipulated in the said Paragraph 22 would apply.

iii. The punishment awarded is disproportionate to the allegations levelled and charges proved against the petitioner.

12.1. With respect to the first contention this Court has already discussed with regard to non-adherence of Clauses (13) and (17) of Regulation 6 of the Regulations, 1976, which needs no reiteration. This Court came to hold in foregoing paragraphs that there was no violation of said provisions.

12.2. With respect to second aspect, this Court has already opined that the plea was absent throughout and this Court is not obligated to decide such issue which is sought to be set up by way of filing rejoinder affidavit.

For the reason ascribed supra for non-entertainment of such plea without disclosure of source of such document, this Court declines to consider such plea.

However, in this context, this Court takes into consideration the argument advanced by Sri Bibekananda Udgata, learned counsel for the Bank and finds force in such submission. It is strenuously urged that when allegations of fraud is available and proved on facts by the Authorities, such limitation specified in the aforesaid document does not attract. He has taken this Court to the following allegation contained in the Letter dated 20.11.2009 communicated to the petitioner pointing out irregularities committed at Jamsuli Branch:

"15. You sanctioned a bogus loan of Rs.50,147/- on 05.11.2005 in the name of Sri Purna Chandra Jena. The loan debit voucher dated 05.11.2005 mentions the account number as deposit loan 1/60. However, no particulars of the deposit against which it was sanctioned has been mentioned either on the voucher or on the relative loan ledger folio. You had not obtained any document from Sri Purna Chandra Jena for the above loan. The proceeds of this fraudulent loan was utilised to issue demand draft No.476735 for Rs.50,000/- to Sri Purna Chandra Jena, drawn on New Grain Market (1576) Branch, Ludhiana. You had thus connived with Sri Purna Chandra Jena in committing a fraud and gave undue financial advantage to Sri Jena at the cost of the bank."

Before the Enquiry Officer, on 15.09.2010, in the cross- examination of the petitioner by the Presenting Officer in the above aspect, the reply was:

"The loan was given against KY. But reference details are not mentioned in the loan ledger nor in the voucher.

I forgot totally to mention the security details in the ledger."

As against this the Disciplinary Authority in his order vide Annexure-7 stated thus:

"Allegation No.15:

Based on the evidences adduced in the enquiry, EO has held that allegation No.15 was proved. I also concur with the finding of the EO. Mr. Mallick CSO only tells that he had obtained documents, but never brought any evidence to establish that he had taken any fixed deposit as security for the said loan. The preponderance of probability clearly establishes that Mr. Mallick in connivance with Sri Purna Chandra Jena created a fraudulent transaction in the books of the Bank without any tangible collateral and gave undue financial advantage to Sri Jena. The conduct of CSO is therefore reprehensible. In view of the above Mr. Mallick CSO exhibited lack of honesty, integrity and devotion. I have therefore no hesitation in agreeing with the Enquiry Officer‟s findings that allegation No.15 and Charge Nos.1 and 2 proved."

The Appellate Authority having "examined the Charge Sheet dated 19.05.2010, his reply to the Charge Sheet, Enquiry Report dated 12.11.2010, Final Order dated

29.12.2010 passed by the Disciplinary Authority, Appeal dated 27.01.2011 and all other related papers/ documents", passed reasoned Order vide Annexure-10 by upholding the Order of the Disciplinary Authority in toto.

In such view of the matter, the contention of the petitioner that the limitation specified in Paragraph 22 of the document titled "Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the Central Vigilance Commissioner" does not attract to fact- situation of present case inasmuch as said paragraph contains the following:

"This time limit will not apply to cases of:

     (i)     frauds,

     (ii)    other criminal offences, or

(iii) cases where mala fides are inferable".

12.3. With respect to disproportionate imposition of penalty, suffice it to observe that the fraudulent activity and misconduct with irregularities at the branch of the Bank are proved by concurrent view taken by all the authorities.

The Supreme Court in the case of State Bank of India Vrs. Bela Bagchi, (2005) 7 SCC 435 has been pleased to observe as under:

"15. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum- Regional Manager Vrs. Nikunja Bihari Patnaik, (1996) 9 SCC 69, it is no defence available to say that there was no loss or profit which resulted in the case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one‟s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."

Analysis of factual position on record it transpires that on 15.09.2010 during course of enquiry, the Charge Sheeted Officer-petitioner has admitted to have engaged strangers/outsiders on the verbal instructions, but could not lay evidence with respect to any instructions from Zonal Office or competent authority. Further, with respect to a query "whether term loan limit can be

enhanced without liquidating the original limit", the petitioner denied to have knowledge about "loan policy". With respect to sanction of term loan of Rs.6.50 lakhs on 07.10.2005 beyond Rs.4.00 lakhs, the petitioner feigned ignorance about "delegated power". Such answers are unbecoming of a responsible official of the Bank involved in dealing with financial transactions. It is generally expected that the managerial level officer is supposed to understand the roles and associated powers. This Court may view such ignorance not only involves lack of integrity, breach of faith and gross dereliction in performance of duty, thereby misuse of official position but also such negligence could lead to legal consequences.

12.4. As the facts and evidence available on record being taken into consideration by all the Authorities-- the Enquiry Officer, the Disciplinary Authority and the Appellate Authority-- and no perversity of factual finding recorded by the Authorities being demonstrated by placing contrary material on record, this Court does not deserve it to be a fit case to show indulgence in the penalty awarded.

13. The pleas raised at belated stage before this Court for the first time, being mixed questions of fact and law, they should have been agitated at the inception and at the first opportune time. The quasi judicial authorities,

who are supposed to deal with factual aspects based on appreciation of evidence available on record, had no opportunity to examine such aspects.

13.1. This apart, such pleas being completely absent before the quasi judicial authorities as also before this Court while filing the writ petition, it is indicative of the fact that the petitioner was conscious about lack of merit in such plea(s) and, therefore, he waived. Such a view of this Court is fortified by the principle propounded in Rajendra Singh Vrs. State of M.P., (1996) 5 SCC 460 that:

"While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the Court to interfere. The provision may be a directory one or a mandatory one".

Furthermore, a mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. In other words, wherever a complaint of violation of a mandatory provision is made, this Court is required to enquire-- in whose interest is the provision conceived; if it is not conceived in the interest of the public, question of waiver and/or acquiescence may arise-- subject, of course, to the pleadings of the parties.

13.2. The petitioner had misused his official capacity as Manager in granting loans to the borrowers falling beyond the scope of his authority and the Bank's funds were exposed to high risk of financial loss. Flaw in maintenance of record is also admitted by the petitioner.

13.3. In contrast, reference may be had to Biswanath Parhi Vrs. United Commercial Bank, 2023 (III) ILR-CUT 567, wherein this Court underscored the importance of following established procedures in disciplinary actions against employees and affirmed right to fair hearing within such process. This Court taking cognizance of the fact that the plea of challenge as to non-compliance of procedure laid down in Regulation 6(17) of the Regulations, 1976, was inclined to intervene in the order of the Disciplinary Authority for the reason that:

"11. In the case at hand admittedly the delinquent officer has not got himself examined and hence it was incumbent upon the inquiry authority to give an opportunity of hearing in terms of the said Regulation. The same allegedly having not been done such ground was taken in the memorandum of appeal filed by the present Petitioner. Paragraph-9 of the memorandum of appeal refers to the same and is quoted hereunder:

„9. Sub-Regulation (17) of Regulation 6 of UCO Bank Officer Employees (Discipline & Appeal) Regulations, 1976, lays down as follows:

The inquiring, authority may, after the officer employee closes his evidence and shall, if the officer employees has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him.‟

In paragraph no.10, 16 (Page No.60) of Manual on Disciplinary Action and Related Matters, the Head Office directs as follows:

„The charge-sheeted officer employee may examine himself in his own behalf if he so prefers. After the officer employee closes his evidence, the Enquiry Officer must, if the officer employee has not got himself examined during the inquiry, generally question him on the circumstances appearing against him. ***‟

The above must-procedure was not followed by the Enquiry Officer. Even though I did not examine myself in the inquiry in my own behalf, the Enquiry Officer did not give me the chance scope of explaining my position as contemplated in the above obligatory provisions.‟

12. The appellate authority while passing the order at Annexure-11 confirmed the order of the disciplinary authority dealt with the charges leveled against the delinquent officer and the findings relating to the same and concurred with the views expressed by the disciplinary authority and referring to Regulation 1976 dismissed the appeal preferred by the delinquent-Petitioner. But conspicuously there is

no reference to the stand of the Petitioner relating to infraction of Regulation 6(17) of Regulation 1976 in the memorandum of appeal adverted to hereinabove."

In the said case, though specific stand was taken by the petitioner, the opposite party-Bank did choose to ignore such specific assertion. Thus, said case law is not applicable to the present fact-situation as Sri Surendra Nath Panda, learned Advocate, who was incidentally the arguing counsel for the petitioner in Biswanath Parhi (supra), fairly conceded that the pleas were not available before the Authorities nor does the petitioner plead before this Court in the writ petition.

Be that be, from the discussions made in foregoing paragraphs it is crystal clear that there was no infraction in following the procedure laid down in Clause (13) read with Clause (17) of Regulation 6 of the Regulations, 1976.

13.4. The departmental proceedings with respect to charges framed on the allegations are decided on preponderance of probabilities. This Court while exercising power under Article 226 of Constitution of India cannot re-appreciate the evidence and substitute its own finding as the findings recorded by the Enquiry Officer are reasonably supported by material available on record. In other words, the findings recorded in the instant case are not

based on no evidence and there is no violation of principles of natural justice. Since this Court has limited scope of jurisdiction and can interfere only if there are procedural lapses leading to cause prejudice or violation of principles of natural justice. The petitioner has failed to satisfy this Court that there was any procedural infirmity, which caused prejudice to him. The discussions and analysis of this Court leads to irresistible conclusion that the charges were duly proved following procedure laid down in the Regulations, 1976.

13.5. The restriction on the exercise power of judicial review in the present nature of facts and circumstances is fortified by exposition of law made in the case of General Manager (Operation-1)/Appellate Authority, UCO Bank Vrs. Krishna Kumar Bhardwaj, (2022) 13 SCC 237. It has been observed that,

"17. So far as the scope of judicial review in the matters of disciplinary inquiry is concerned, it has been settled that the constitutional courts while exercising their power of judicial review under Articles 226 or 227 of the Constitution would not assume the role of the appellate authority where jurisdiction is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. At the same time, the power of judicial review is not analogous to adjudication of the case on merits as an appellate authority.

18. It was never the case of the respondent delinquent even before the High Court that the departmental enquiry was not conducted in accordance with the procedure prescribed under the 1976 Regulations or there was violation of any provision of the 1976 Regulations or fair opportunity of hearing was not afforded to him in the course of inquiry or there was violation of the principles of natural justice."

13.6. Therefore, the Order dated 29.12.2010 of the Disciplinary Authority (Annexure-7) as confirmed by the Appellate Authority vide Order dated 25.04.2011 (Annexure-10) cannot be disturbed with the limited scope to interfere in the disciplinary proceedings.

14. No other arguments are advanced by counsel for the petitioner.

15. In the wake of above, for the reasons stated with the discussions made supra, the Order of the Disciplinary Authority (Annexure-7) and the Order of the Appellate Authority (Annexure-10) do not warrant interference. In fine, the writ petition stands dismissed, being devoid of merit, but in the circumstances there shall be no order Signature Not as to costs.

Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-Charge) Reason: Authentication (MURAHARI SRI RAMAN) Location: ORISSA HIGH COURT, CUTTACK Date: 02-Apr-2025 18:38:20 JUDGE High Court of Orissa, Cuttack The 02nd April, 2025//MRS/Laxmikant/Suchitra