Sunil Kumar Rout vs Urban Co-Operative Bank ... Opposite ...
2025 Latest Caselaw 6801 Ori

Orissa High Court

Sunil Kumar Rout vs Urban Co-Operative Bank ... Opposite ... on 8 April, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   W.P.(C) No.11189 of 2011

  (An application under Articles 226 & 227 of the
  Constitution of India)

  Sunil Kumar Rout                        ...         Petitioner
                               -versus-

  Urban Co-operative Bank                 ... Opposite Parties
  Ltd., Rourkela and others

  For Petitioner                 : Mr. T.K. Mishra, Advocate

  For Opposite Parties           : Mr. R.N. Mishra,
                                   Advocate (OP Nos.1 & 2)

        CORAM:
           HON'BLE MR. JUSTICE G. SATAPATHY

                     DATE OF HEARING :03.02.2025
                     DATE OF JUDGMENT:08.04.2025

G. Satapathy, J.

1. The Petitioner by way of this Writ Petition

seeks to challenge the judgment dated 28.12.2010

passed in Service dispute 6 of 2009g under Annexure-7

by which the member Co-Operative Tribunal, Odisha,

Bhubaneswar has allowed the service dispute in part by

setting aside the penalty to make good for the loss

suffered by the Bank to the tune of Rs.14,92,930/,

while confirming it for reversion of the petitioner to the

post of Junior Assistant.

2. The factual matrix as delineated is that on

04.03.1991, the Writ Petitioner was initially appointed

as Junior Assistant in Urban Co-operative Bank and he

was promoted to the post of Senior Assistant in April,

1995 and subsequently promoted to Assistant Manager

in December, 1995. After his promotion to Assistant

Manager, the Petitioner worked as Branch Manager in

different Branches, however, a Departmental

Proceeding(DP) bearing D.P. No.1275 dated 06.10.2007

was initiated against him with 11 charges, to which the

Petitioner submitted his show-cause, but an Inquiry

Officer was appointed paving the way for conducting a

Domestic inquiry in which two charges were proved

against the Petitioner. Accordingly, the Petitioner

submitted his show-cause to the enquiry report, but the

disciplinary authority without considering his

explanation proceeded to impose final punishment in

the DP by reverting him to the rank of Junior Assistant

from the grade of Assistant Manager and to make a

good for the losses caused by him to the assets of the

Bank with interest and cost, failing which his service

was directed to be terminated. Accordingly, the loss

was assessed at Rs.14,92,930/.

2.1. Being aggrieved, the Petitioner submitted

an application to review the order of penalty, but the

authority issued a notice to the Petitioner to pay the

loss caused to the Bank. Finding no way out, the

Petitioner approached the Tribunal against the

impugned order passed in the DP, but the Tribunal by

the impugned judgment only set aside the penalty for

payment of loss caused to the Bank by the Petitioner

while confirming his reversion to the post of Junior

Assistant. Against such finding of the Tribunal, the

Petitioner has approached this Court in this Writ

Petition.

3. In the course of hearing Mr. Tushar Kumar

Mishra, learned counsel for the Petitioner submits that

when the Tribunal has come to a finding that the

Petitioner is not liable to pay for the loss caused to the

Bank, then as to how he can be found guilty of the

charges of negligence and misconduct, but the learned

Tribunal ignoring the principle of law has confirmed the

penalty of reversion of the Petitioner in the DP which

needs to be interfered in this Writ Petition. Accordingly,

Mr. Mishra has prayed to allow the writ petition.

3.1. On the other hand, Mr. R.N. Mishra,

learned counsel for the OP Nos. 1 and 2 however, has

submitted that since the Departmental Proceeding has

been conducted properly and no prejudice has been

caused to the Petitioner and the finding of the reversion

of the Petitioner being upheld by the Tribunal, it could

not be proper to interfere with the findings of the

Tribunal, but in case the findings of the Tribunal is

considered to be perverse, then the proper recourse is

to remit the matter back to the Tribunal for fresh

adjudication. Accordingly Mr. Mishra, has prayed to

pass appropriate order in the matter. Mr. Mishra has

also produced the file of Departmental Proceeding at

the time of argument.

4. After having carefully bestowed an anxious

considerations to the rival submissions, since the

Petitioner challenges the concurrent findings of facts

and penalty as recorded in the Disciplinary Proceeding

and service dispute case, this Court by reiterating the

settled position of law on "scope of judicial review"

against the orders passed in Disciplinary Proceeding

and confirmed by the Tribunal makes it ample clear

that Courts should not interfere in the matter by re-

appreciating the evidence taken in Disciplinary

Proceeding and substitute its own view merely because

some other view is possible. Further, the Court shall

not disturb the findings of the Disciplinary Authority,

unless there is serious miscarriage of justice or such

finding has been recorded without any evidence or on

the basis of no evidence or the punishment imposed is

shockingly disproportionate. What is the scope and

ambit of judicial review against the order of Disciplinary

authority has been well settled by the Apex Court in

paragraph-12 &13 of the decision in Union of India

and others Vs. P. Gunasekaran; (2015) 2 SCC 610,

wherein it has been held thus:-

"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.

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.

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

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

The aforesaid principle was not only

followed, but also has been reiterated by the Apex

Court in paragraph-21 in Union of India and others

Vs. Dalbir Singh; (2021) 11 SCC 321.

5. Looking at the prayer on the anvil of the

principles as settled and noted above, the Petitioner in

this case has faced the Departmental Proceeding with

11 charges, but two charges are proved against the

petitioner, who was accordingly found guilty of two

charges and the Enquiring Officer conclude the

following in his report:

(i) He(petitioner) is negligent in discharging his duties and responsibilities as a Branch Manager;

(ii) He(petitioner) has disobeyed the official orders causing deficiency to the assets of the Bank.

Examining the aforesaid findings of Enquiring Officer

which was not only concurred by the Disciplinary

Authority, but also was confirmed by the Tribunal, on

the backdrop of settled legal principles, this Court on

perusal of materials on record does not find anything to

conclude that the aforesaid finding was without any

evidence or no evidence. In the enquiry report, the

findings were arrived at on due discussion of evidence,

but the Petitioner has set forth grounds in the writ

petition to re-appreciate the evidence by extensively

quoting the evidence adduced by the Department,

however, scope of judicial review to re-appreciate the

evidence adduced in Disciplinary Proceeding is very

limited in the writ jurisdiction and that is the reason

why the learned Tribunal did not interfere with the

findings of the Disciplinary Authority while interfering

with the penalty of recovery against the petitioner. It is

more than clear that this Court in exercise of

extraordinary writ jurisdiction cannot overturn the

findings of the Disciplinary Authority by re-appreciating

the evidence on record merely because another view is

possible and in this case, the Court having not come to

conclude that the findings of the Disciplinary Authority

being without or no evidence, it cannot interfere with

the findings of the Disciplinary Authority. Hence, the

challenge of the petitioner with regard to findings of the

Disciplinary Authority and confirmed by the Tribunal

merits no consideration.

6. Adverting to examine the penalty on

pedestal of the principle as to whether it is "shockingly

disproportionate", it appears that the petitioner is not

only found negligent, but also found guilty of

disobedience, but imposing penalty commensurate to

the delinquency is within the domain of the Disciplinary

Authority, however, when it is shockingly

disproportionate, the Court can definitely interfere with

it. In the service dispute case, the learned Tribunal has

set aside the penalty of recovery, which was not

challenged by the Department, however, the penalty of

reversion has been termed by the petitioner to be

"shockingly disproportionate". True it is that the

petitioner has been reverted to the original grade,

which is two grade below than the grade in which was

posted at the time of initiation of Departmental

Proceeding and normally in case of reversion, the

delinquent employee is down-graded to one grade

below which is of course not a universal rule, however,

taking into consideration the penalty as imposed on the

petitioner reverting him to the post of Junior Assistant,

which is base level post, to which originally he had

joined. The delinquency of the petitioner as noted by

the Enquiring Officer makes it clear that he was

negligent and disobedience of official order, but still

then the charge against the petitioner is on the basis of

allowing over drawal to some accounts which is stated

to be on account of negligence and not in consonance

with the orders and circulars of the bank, however,

nothing was brought on record to suggest that the

petitioner had committed the act of negligence or

disobedience of orders with malafide intention and,

therefore, the penalty of reversion of the petitioner to

his original post which is two grade below the post

which the petitioner was holding at the time of initiation

of Departmental Proceeding.

7. True it is that no rule or circular has been

brought to the knowledge of the Court to indicate that

the authority was in fact debarred to impose such a

harsh punishment to the petitioner, but at the same

time, the authority concerned could have imposed the

penalty to revert the petitioner to one grade below

which is in fact a major penalty, but not so harsh than

the penalty of reversion to two grade. It is trite that

Courts while exercising their power of judicial review

over the findings of the Disciplinary Authority, do not

sit as the Appellate Authority. Decision qua the nature

and quantum of the penalty is the prerogative of the

Disciplinary Authority and it is not the function of the

Court to decide the same. It is only in exceptional

circumstance, where it is found that the penalty

awarded by the Disciplinary Authority is shockingly

disproportionate to the misconduct, the Courts may

steps in and interferes. No doubt the award of penalty

which is grossly in excess to the misconduct cannot

claim immunity and remains open for the interference

under the limited scope for judicial review which is

based on the "Doctrine of Proportionality". It is also

equally true that the Court cannot impose penalty or

substitute penalty in those cases where the penalty is

found to be violative on the pedestal of "Doctrine of

Proportionality" and in such cases, the only option left

to the Court to remit the matter back to the Disciplinary

Authority for reconsideration of the penalty. In this

case, looking at the gravity of misconduct vis-a-vis the

imputation of charges, this Court is of the considered

view that the penalty of reversion of the petitioner to

the post of Junior Assistant is excessive and

disproportionate and thereby, the matter be remitted

back to the authority concerned for reconsideration of

the penalty of the petitioner. It is, however, open to the

authority to impose appropriate penalty on the

petitioner in accordance with rule.

8. In the result, the writ petition is allowed in

part on contest, but in the circumstance there is no

order as to cost. Consequently, the penalty of reversion

of the petitioner to the post of Junior Assistant is

hereby quashed and matter is remitted back to the

authority for reconsideration to award appropriate

penalty in accordance with rule.

Digitally Signed                                                                                JUDGE


Location: HIGH COURT OF ORISSA
Date: 08-Apr-2025 Orissa
                  14:10:51
                         High Court, Cuttack,

Dated the 8th day of April, 2025/Priyajit