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Madhya Pradesh High Court · body

2007 DIGILAW 109 (MP)

PUNJAB AND SIND BANK v. GURMIT SINGH

2007-01-25

A.K.PATNAIK, R.S.JHA

body2007
Judgment ( 1. ) THIS is an appeal against the order dated 21-6-2005 passed by the learned single Judge in W. P. No. 2515/97. ( 2. ) THE facts briefly are that the respondent was working as a teller in the appellant-bank at its Napier Town Branch at Jabalpur. Disciplinary proceedings were initiated against the respondent by Zonal Manager of the bank, who was the Disciplinary Authority, on the charges that one Nand Singh had opened SB Account No. 41 in the Napier Town Branch of the Bank on 13-7-1981 and Nand Singh died on 27-12-1981, but after his death on 17-2-86, 14-4-86, 15-4-86 and 17-4-86 some amounts were withdrawn by instruments containing signatures of the deceased Nand Singh alleged to have been forged by the respondent. The Inquiry Officer conducted the departmental enquiry against the respondent and examined some witnesses on behalf of the management of the appellant-Bank. On the basis of evidence as adduced both oral and documentary, the Inquiry Officer submitted his report that the charges against the respondent stood proved. The respondent was then given an opportunity to show cause why the Inquiry Officers report should not be accepted and the respondent submitted his reply on 19-2-1996 and 26-2-1996 to the Disciplinary Authority. In his reply, the respondent contended that the findings of the Inquiry Officer were arbitrary, perverse and one sided and were given in violation of the principles of natural justice. The Disciplinary Authority after considering the Inquiry Officers Report as well as the reply of the respondent agreed with the finding of the Inquiry Officer and held that the charges against the respondent were proved and awarded the punishment of dismissal from service. Aggrieved, the respondent filed an appeal against the order of dismissal but the appeal was dismissed by the Appellate Authority. Then, the respondent filed W. P. No. 2515/97 and by the impugned order dated 21-6-2005, the learned Single Judge quashed the order of dismissal dated 29-2-1996 passed by the Disciplinary Authority as well as the order passed by the appellate Authority and directed the appellant to reinstate the respondent. Aggrieved by the impugned order, the appellant has filed this appeal. ( 3. ) MR. Aggrieved by the impugned order, the appellant has filed this appeal. ( 3. ) MR. Ajay Mishra, learned Counsel for the appellant submitted that the first ground on which the learned Single Judge had quashed the order of punishment is that a copy of the report of handwriting expert which was taken into consideration by the Disciplinary Authority for holding the respondent guilty of the charges was not supplied to the respondent. He submitted that the report of handwriting expert was not relied on by the Inquiry Officer for recording of his finding in the Inquiry Officer report that the respondent was guilty of charges. He submitted that the respondent took a stand before the disciplinary Authority that the signatures on the instruments including the cheques through which the amounts were withdrawn from the account of deceased Nand Singh were not forged by the respondent. The Disciplinary authority referred the instruments to the handwriting expert for his opinion and the handwriting expert gave his opinion that the signatures have been put on the instruments by the respondent. He submitted that if the report of the handwriting expert had not been furnished to the respondent,the Court could at best direct the authority to record his findings afresh without taking into account the report of handwriting expert but the Court could not exonerate the respondent from all charges and direct this reinstatement in service. In support of his submission, he relied on the decision of the Supreme Court in Municipal corporation, Delhi Vs. Ramprakash, and in U. P. State Agro Industrial Corpn. Ltd. Vs. Padamchand Jain, 1995 (4) SLR 742 . ( 4. ) MR. Mishra submitted that the second ground on which the learned single Judge has quashed the order of dismissal of the respondent is that there was no evidence before the Disciplinary Authority regarding the date on which the endorsement was made in the ledger sheet of Saving Bank Account No. 41 of Nand Singh that Nand Singh had died on 27-12-1991 and unless there was evidence to show that the respondent had knowledge about the date of death of nand Singh, he could not be held guilty of the charges. He submitted that the. He submitted that the. evidence of M. W. 1, IPS Candak is that he served in the Napier Town Branch of the appellant-Bank between 1981 and 1983 and that he had made the endorsement in the ledger of the bank that Nand Singh died on 27-12-1981. He submitted that the withdrawals through the instruments by the respondent as per the charges were made in February and April, 1986 and therefore the findings of the learned Single Judge that there is no evidence regarding the date on which the endorsement in the ledger sheet of the appellant bank was made that Nand Singh died on 27-12-1981 and that there is no evidence that the respondent had knowledge of the death of Nand Singh when the withdrawals were made in 1986 were contrary to record. ( 5. ) MR. Mishra next submitted that the learned Single Judge also held that a copy of the ledger sheet though demanded by the respondent was not supplied to the respondent and, therefore, the departmental inquiry was vitiated. He submitted that the copy of the ledger sheet which was demanded by the respondent not relied on by the the Inquiry Officer or by the Disciplinary authority for holding the respondent guilty of the charges and, therefore, the order of punishment cannot be held to be vitiated for not supplying a copy of the ledger sheet. ( 6. ) MR. Mishra next submitted that the learned Single Judge has relied on a letter of handwriting expert addressed to the Superintendent of Police, jabalpur mentioning that the disputed vouchers did not contain the signature of the deceased Nand Singh, and for this reason no definite opinion can be given that the signatures were made by the respondent. He submitted that this letter of the handwriting expert was annexed by the respondent as Annexure P-37 to the writ petition and was not a part of the record of the departmental enquiry and, therefore, should not have been taken into account by the learned Single judge. ( 7. ) FINALLY Mr. Mishra cited the decision of Supreme Court in State of andhra Pradesh Vs. ( 7. ) FINALLY Mr. Mishra cited the decision of Supreme Court in State of andhra Pradesh Vs. Sree Rama Rao, AIR 1963 SC 1723 , for the proposition that the High Court in a petition under Article 226 of the Constitution of India does not sit as a Court of appeal over the authority of the departmental enquiry and hence cannot re-appreciate the evidence as an Appellate Authority and record its own finding in regard to guilt of delinquent officer. He submitted that the decision of the Supreme Court in case of Sree Rama Rao (supra), makes it clear that so long as there is some material before the Disciplinary Authority to support a finding of guilt, the Court will not interfere with the order of the disciplinary Authority of the finding of the guilt on the ground that the material before the Disciplinary Authority was not adequate or was not reliable. ( 8. ) MR. Sanjay Sanyal, learned Counsel for the respondent, on the other hand, submitted that the learned Single Judge has taken a correct view in the impugned order because there was no evidence whatsoever to show that respondent had knowledge that Nand Singh had died on 27-12-1981 particularly when the date on which the endorsement in ledger that Nand Singh had died on 27-12-1981 was not mentioned. He further submitted that in 1981 the respondent was posted at Mumbai and was not aware about the death of Nand singh on 27-12-1981. He submitted that the letter of the handwriting expert addressed to the Superintendent of Police would show that the signatures on the vouchers or instruments through which the amounts were withdrawn in the year 1986 were not those of the respondent. He also submits that since a coy of the report of handwriting expert on the basis of which the Disciplinary Authority held that the signatures on the vouchers were put by the respondent were not furnished to the respondent, the finding of the Disciplinary Authority holding the respondent guilty on the basis of the report of the handwriting expert is against the principles of natural justice. He further submitted that he letter of the handwriting expert which was annexed to the writ petition was filed by the appellant before the Appellate Authority and hence was the part of the record. He further submitted that he letter of the handwriting expert which was annexed to the writ petition was filed by the appellant before the Appellate Authority and hence was the part of the record. He submitted that the respondent has been out of service on account of the order of dismissal since 1996 and if the matter is remitted to the Disciplinary authority, he would suffer immense injuries. ( 9. ) WE have considered the submissions of Mr. Mishra and Mr. Sanyal and we find that the scope of judicial review in respect of disciplinary proceedings is very limited. The scope of judicial review against the order passed by the authority holding a departmental enquiry has been explained by the supreme Court in State of Andhra Pradesh Vs. Sree Rama Rao (supra):- "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. " Thus, in a proceeding under Article 226 of the Constitution, the High court does not sit as the Court of appeal over the authorities holding the departmental enquiry and its limited function is to see whether the departmental enquiry was held by an authority competent in that behalf, whether the enquiry has been held in accordance with the procedure prescribed in that behalf and whether the rules of natural justice have been followed and whether there is some evidence collected during the enquiry which will reasonably support that the delinquent officer is guilty of the charge. ( 10. ( 10. ) AS has been reiterated by the Supreme Court in Yoginath D. Bagde vs. State of Maharashtra, (1999) 7 SCC 739 , the Court in exercise of powers of judicial review cannot sit in appeal over the findings recorded by the Disciplinary authority or the Inquiry Officer in the departmental enquiry but can interfere with the conclusions reached by the Disciplinary Authority or the Inquiry officer if there is no evidence to support the finding or a finding recorded is such as could not be recorded by a prudent man. [see also State of U. P. Vs. Batuk Deo pati Tripathi, (1978) 2 SCC 102 , Registrar, High Court of Madras Vs. Rajiah, (1988) 3 SCC 211 , State of Andhra Pradesh Vs. Sree Rama Rao (supra), Central bank of India Vs. Prakash Chand Jain, AIR 1969 SC9s3,bharatiron Works Vs. Bhagubhai Balubhai Patel, (1976) 1 SCC 518 ]. ( 11. ) WHERE the Disciplinary Authority takes into account a material which ought not to have been taken into consideration under the law, the Court will not exonerate the delinquent officer from the charges and direct his reinstatement but will remit the matter to the Disciplinary Authority to exclude the material which ought not to have been taken into consideration and record fresh finding whether the delinquent officer was guilty of the charges or not on the basis of other evidence. Para 6 of the judgment of the Supreme Court in U. P. State Agro Industries Corpn. Ltd. Vs. Padam Chand Jain (supra), is quoted:- "6. The other reason given by the High Court for quashing the order of termination of service passed by the Managing Director does appear to be correct even though the direction given thereafter cannot be sustained. The High Court rightly took the view that the decision of the Managing Director was vitiated on account of the fact that it was influenced by some extraneous material in the form of adverse comments of another Accounts officer. Having correctly taken that view, the direction in the circumstances was to require the Disciplinary Authority to decide the matter afresh only on the basis of the relevant material excluding from consideration the extraneous material in the form of adverse comments of the other Accounts Officer. In our opinion, this is the appropriate direction to give in the present case. " ( 12. In our opinion, this is the appropriate direction to give in the present case. " ( 12. ) IT is not disputed before us that the report of the handwriting expert was taken into consideration by the Disciplinary Authority while recording his finding of guilt against the respondent in the order dated 29-2-1996. It, however, appears from the order dated 29-2-1996 of the Disciplinary Authority that the opinion of the handwriting expert was obtained because of the objection of the respondent that the signatures on the exhibited documents were not put by the respondent and the Disciplinary Authority held in the order dated 29-2-19% that the opinion of the handwriting expert that the signatures on the documents were put by the respondent corroborates the finding of the Inquiry Officer on the charge. Thus, the opinion of the handwriting expert was not the sole basis on which the Disciplinary Authority had come to the conclusion that the signatures on the exhibited documents were put by the respondent. Besides the opinion of the handwriting expert the Inquiry Officer had also given the finding that the signatures on the relevant documents were put by the respondent. Since copy of the report of the handwriting expert was not made available to the respondent and the handwriting expert is not available for cross-examination, the opinion of the handwriting expert has to be left out of the consideration. Accordingly, we direct that the Disciplinary Authority will exclude the report of the handwriting expert and will record a finding afresh as whether or not the signatures on the relevant documents were put by the respondent or whether the respondent was guilty of any of the charges. ( 13. ) SINCE we are remitting the matter to the Disciplinary Authority, we would not like to express any opinion on the other findings of the Disciplinary authority which have not found favour with the learned Single Judge in the impugned order. The fact remains that witnesses have been examined in the enquiry on various charges against the respondent and some documents have been produced and the Disciplinary Authority has to record a fresh finding whether or not the charges against the respondent stand proved. The fact remains that witnesses have been examined in the enquiry on various charges against the respondent and some documents have been produced and the Disciplinary Authority has to record a fresh finding whether or not the charges against the respondent stand proved. Suffice it to say that the learned Single Judge has exceeded his jurisdiction under Article 226 of the Constitution inasmuch as he has re-appreciated the evidence and has come to the conclusion that the charges against respondent have not been proved. As has been held by the Supreme Court in State of Andhra Pradesh Vs. Sree Rama rao (supra) and Yoginath D. Bagde Vs. State of Maharashtra (supra), the High court while exercising its power of judicial review under Article 226 of the constitution does not sit as an Appellate Authority over the finding of the disciplinary Authority or the Inquiry Officer and conclusion reached by the disciplinary Authority or the Inquiry Officer could be interfered with only if there is no evidence on record in support of the conclusion. ( 14. ) FOR the aforesaid reasons, we set aside the impugned order dated 21-6-2005 of the learned Single Judge in W. P. No. 2515/97 and quashed the order dated 29-2-1996 of the Disciplinary Authority and the order dated 6-2-97 of the Appellate Authority and remit the matter to the Disciplinary Authority to record a finding on the charges against the respondent after excluding the opinion of the handwriting expert and after affording an opportunity to the respondent to make further representation against the findings of the Inquiry officer in the enquiry. Since the respondent has remained out of service since 1996, this exercise will be completed by the Disciplinary Authority within a period of three months from the date of receipt of the certified copy of this order from the respondent. The appeal is accordingly disposed of.