Order The original petitioner challenged the order of penalty dated 31.7.1996 whereby he has been dismissed from the service and order dated 22.7.1998 and 21.8.1999 rejecting his appeal and review petition respectively. 2. The petitioner who was posted as Branch Manager, Bank of India, Nawadih Branch, Giridih, was suspended on 15.1.1991. The petitioner was served a Charge Memo on 2.8.1993 in which fourteen charges were levelled against him. An Enquiry Officer was appointed and the enquiry started on 27.9.1993. On 8.9.1995, the Enquiry Officer submitted 87 pages enquiry report in which Charge No. 6, 9 and 10 were found partly proved and Charge No. 1 was fully proved. On 16.9.1995, the petitioner was issued show-cause notice to make his representation against the proposed substituted finding with respect to Charge Nos. 5 & 11 which were found not proved. The petitioner submitted his representation on 27.10.1995. On 31.7.1996, the penalty order was passed in which the following penalty were imposed upon the petitioner:- Charge No. 1 Penalty You misused your official position Reduction of your pay by two and irregularly sanctioned loans to stages lower in the time scale yourself against your term deposits in terms of Regulation 4(e) of and non-existent/existent National Employees' (Discipline and Saving Certificates in violation of Appeal) Regulations, 1976 Bank's norms for the purpose. Charge No. 5 Penalty You opened fictitious S/B A/Cs in Dismissal from Bank's service different name in the Branch and which shall ordinarily be a deposited various amounts which disqualification for future were beyond the known sources of employment in terms of your income. Further, you created Regulation 4(h) of Bank of a benami DBD receipt for Rs. India Officers' Employees 20,000/- by withdrawing money (Discipline & Appeal) from one of the said A/cs and Regulations, 1976 granted a loan to a third party against the said DBD. Charge No.6 Penalty You abused your official position Dismissal from Bank's service to the detriment of Bank's interest which shall be ordinarily a by granting various credit facilities disqualification for future and IRDP loans in gross violation employment in terms of of Bank's lending norms and the Regulation 4(h) of Bank of provisions of the schemes in as India Officers' Employees much as: (Discipline & Appeal)* (i) As may as 50 IRDP loan A/cs were sanctioned/disbursed and then closed after an adjustment of subsidy amount (details given in Annex.-V). No assets were created are available. (ii) In 62 IRDP loan A/cs subsidy was not claimed for various reasons attributable to you. (iii) In many of IRDP loans, various irregularities like disbursement of amount less than the amount sanctioned non-receipt of loan money by the borrowers, misutilisation of subsidy amount etc. were observed. Sixteen such Ales are listed in the statement of allegations. (iv) The end use of funds was not ensured. (v) Loans were sanctioned to different borrowers who were already defaulters of other loans sanctioned to them. (vi) Loans were granted to persons who were not eligible under the said norms. (vii) Loans were also granted to persons who were not identified for the specified schemes by Govt. agencies, with the result that no subsidy was granted in such cases causing financial loss to the Bank as listed in Annexure-VI. (viii) In many cases of loans granted the documents are executed by persons other than whose names appeared in the applications, which indicates fictitious financing made. (ix) In 13 cases, you financed the borrowers against IRDP identification number, against which some other person's name appears, which indicates misappropriation of subsidy, provided by DRDA at your connivance. Charge No. 9 Penalty You granted various loans to different Reduction of your pay by borrowers exceeding/misutilising your two stages lower in time-scale delegated authority. in terms of Regulation 4(e) of Bank of India Officers' Employees (Discipline & Appeal) Regulations. 1976. Charge No. 10 Penalty You sanctioned loans to various 'CENSURE' in terms of persons under IRDP/DRI scheme Regulation 4(a) of Bank and made them subsidy/credit at of India Officers' Employees cheaper rate of int., beyond the (Discipline & Appeal) norms of the Bank. For showing Regulations, 1976. this extra favour, borrowers have claimed having paid you illegal gratification which you accepted. Charge No. 11 Penalty One fictitious S/B A/c No. 3142 in Dismissal from Bank's service the name of Smt. Laxmi Devi W/o which shall ordinarily be a Jai Shambhu Nath, Vill-Kasargarh, disqualification for future P.O. Pordag was opened by you. employment in terms of The entire money so deposited in Regulation 4(h) of Bank of the A/c was yours which was beyond India Officers' Employees the known sources of income. (Discipline & Appeal) Regulations, 1976. However, a consolidated punishment of dismissal from the Bank's service was passed. The petitioner preferred an appeal which was dismissed on 22.7.1998. employment in terms of The entire money so deposited in Regulation 4(h) of Bank of the A/c was yours which was beyond India Officers' Employees the known sources of income. (Discipline & Appeal) Regulations, 1976. However, a consolidated punishment of dismissal from the Bank's service was passed. The petitioner preferred an appeal which was dismissed on 22.7.1998. The review petition filed by the petitioner was also dismissed by order dated 21.8.1999. In the aforesaid facts, the petitioner has filed the present writ petition. By order dated 12.5.2009 in I.A. No. 1183 of 2009 the legal heirs of the petitioner were substituted because the petitioner had died on 17.10.2008. 3. A counter-affidavit has been filed in which it has been stated that the petitioner was given opportunity to represent against the findings recorded by the enquiry authority along with the substituted findings. The charges against the petitioner were serious and the penalty imposed upon the petitioner was proportionate to the proved misconduct and therefore, no interference is required by this Court in the matter. 4. Heard learned counsel for the parties and perused the documents on record. 5. The learned counsel for the petitioner has submitted that only Charge No. 1 was found proved during enquiry for which an order of reduction of pay by two stages lower in the time scale in terms of regulation for Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976 has been imposed upon the petitioner. Charge Nos. 6, 9 and 10 have been partially proved and Charge Nos. 5 and 11 though have not been proved, the disciplinary authority has erroneously substituted his finding differing with the findings in the enquiry report. He further submitted that before passing the order of penalty, the petitioner was not issued any notice and on that ground alone the order of penalty is liable to be quashed. On the other hand, the learned counsel for the respondents has supported the orders passed against the petitioner. 6. The plea of show-cause notice being not issued to the petitioner before the penalty order was passed, is not supported by the documents on record. The enquiry report was submitted on 8.9.1995 and the disciplinary authority issued show-cause notice dated 16.9.1995 attaching a copy of the enquiry report and the substituted findings with respect to Articles of Charge Nos. 5 and 11. The enquiry report was submitted on 8.9.1995 and the disciplinary authority issued show-cause notice dated 16.9.1995 attaching a copy of the enquiry report and the substituted findings with respect to Articles of Charge Nos. 5 and 11. The petitioner submitted his representation on 27.10.1995 and the penalty order was passed on, 31.7.1996. 7. It would be useful to extract findings of the disciplinary authority with respect to Article of Charge No. 5 and Article of Charge No. 11:- "Charge No. 5: As regards allegations in respect of Articles of Charge No. 5, you stated further that S/B a/c opening form of SIB A/c No. 3142 of Smt. Laxmi Devi was not submitted by the Presenting Officer in the enquiry. Had this SIB A/c opening form been submitted in the departmental enquiry, you could have come to know about the introducer who could have been contacted to identify the customer. This SIB A/c opening form could also have been assisted the enquiry to make things more clear in respect of details of opening of the account. I find from the enquiry proceedings and materials on enquiry record that the opening of SIB A/c No. 3142 in the name of Smt. Laxmi Devi at Bank's Nawadih Branch was not disputed by anyone i.e. the Defence or any other witness during the departmental enquiry and therefore I feel that there was no need for submission of S/B A/c opening form of S/B A/c No. 3142 during the Enquiry Proceedings. However, I also find that during the enquiry when the defence pointed out that the said S/B A/c opening card was not submitted in the enquiry, the Inquiring Authority rightly asked the defence whether he needed the said documents for his defence, and the Defence categorically stated "No". If at all the defence was interested to know the identity of the introducer of S/B A/c No. 3142 in the name of Smt. Laxmi Devi to contact the A/c holder, he could have very well asked for the document during enquiry which he did not. I do not find any weight/merit in your submission. Charge No. 11: As regards the allegations in respect of Articles of charge No. 11, you stated that the main concern was whether the instruments were signed by the A/c holder or not. I do not find any weight/merit in your submission. Charge No. 11: As regards the allegations in respect of Articles of charge No. 11, you stated that the main concern was whether the instruments were signed by the A/c holder or not. According to you, since two of the pay-in-slips and all the withdrawal forms were signed by the A/c holder, therefore, it cannot be said that you transacted the account yourself. According to you, it is neither a fact nor was established in the departmental enquiry and no conclusive evidence/witness was brought by the Presenting Officer in the departmental enquiry to prove that the S/B a/c No. 3142 was opened by you in other's name. I find from the materials on enquiry record that it is proved in the departmental enquiry that the Village "KASHGARH" or "KASHGARAH" under Pordag Post Office does not exist and my reply in this connection has already been given in Para (b), above. It is also proved that on the basis of enquiry record that the S/B A/c No. 3142 was opened by you in Bank's Nawadih Branch in the fictitious name of Smt. Laxmi Devi said to be the wife of Sri Jaishambhu Nath, a resident of Village-Kashgarah under Pordag Post Office. I find that amounts were also deposited in the said S/B A/c No. 3142 vide Ex-M-127, 128, 129, 130, 131 and 132 (Pay-in-slips) and Sri Murli Prasad Barnwal (MW-1) confirmed in his deposition that the aforesaid pay-in-slips were filled in by you and this fact was not refuted by the defence. Sri Barnwal (MW-1) further deposited that he had received cash from Sri Devendra Kumar (CSO) against Ex-M-127, 128 and 131 to be deposited in S/B A/c No. 3142 and also confirmed that against Ex-M-154 (withdrawal slip) he paid cash to Sri Devendra Kumar (CSO), and it was not refuted by the defence. As regards your contention for signing the pay-in-slips and the withdrawal slips, I find that Sri Barnwal (MW-1) deposed in the departmental enquiry that Ex-M-129 (pay-in-slips) bears the initial of Sri Devendra Kumar, CSO, and Ex-M-128 (pay-in-slip) does not have any signature of the depositor (page No. 51 of the enquiry proceedings) and he (MW-1) has never seen Smt. Laxmi Devi around his seat at any time from opening of S/B A/c to the transactions therein. In view of the materials on enquiry record, I do not find any weight/ merit in your aforesaid submission." The disciplinary authority having recorded the aforesaid finding concluded in these terms:- "Having gone through the findings dated 8.9.1995 of the Enquiring Authority and my substituted findings, I find that the charges proved against you in the departmental enquiry, are very grave. The Bank is a custodian of public money and therefore, the integrity and honesty of its employees should be above board. I am of the judicious opinion that the end of justice will be met if I award you the following penalty for the aforesaid lapses/irregularities proved during the departmental enquiry." 8. The appellate authority has also concluded that the petitioner wilfully violated Bank's norms in obtaining loan for himself. The appellate authority observed that the bank is the custodian of the public money and therefore, the conduct of its employees should be above board. Any attempt of committing fraud should be viewed seriously and therefore, the appellate authority refused to interfere with the order of penaty imposed upon the petitioner. 9. The reviewing authority also dismissed the review petition filed by the petitioner recording as under:- "In the result, the undersigned does not find any merit in the various contentions raised in the Review Petition. Looking to the seriousness of the acts of misconduct involving lack of honesty and integrity proved against the petitioner, the penalty of 'Dismissal' awarded by the Disciplinary Authority and confirmed by the Appellate Authority, appears to be justified. The undersigned therefore holds that the penalty imposed by the Disciplinary Authority and confirmed by the Appellate Authority on Shri Devendra Kumar, is just, proper and commensurate to the gravity of the acts of misconduct alleged and proved in the inquiry. Therefore, the undersigned hereby confirms the penalty of 'Dismissal' which shall ordinarily be a disqualification for future employment on Shri Devendra Kumar imposed by the Disciplinary Authority vide Penalty Order dated 31.7.1996 and confirmed by the Appellate Authority vide Appellate Order dated 22.7.1998. The Review Petition preferred by Shri Devendra Kumar is hereby dismissed. Receipt of this order shall be acknowledged." 10. The Review Petition preferred by Shri Devendra Kumar is hereby dismissed. Receipt of this order shall be acknowledged." 10. In the case of "State of Orissa and Others vs. Bidyabhushan Mohapatra" reported in AIR 1963 SC 779 , a Constitution Bench of the Hon'ble Supreme Court has held as under:- "Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question." 11 In the case of "State of Andhra Pradesh and Others vs. S. Sree Rama Rao" reported in AIR 1963 SC 1723 , the Hon'ble Supreme Court has held that if the enquiry was properly held, the Departmental Authorities are the sole Judges of facts and if there were some legal evidences on which their findings would have been passed, the adequacy or reliability of that evidence was not a matter which could be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of Constitution. 12. Again a Constitution Bench of the Hon'ble Supreme Court in the case of "Syed Yakoob vs. K.S. Radhakrishnan and Others" reported in AIR 1964 SC 477 examined the power and jurisdiction of High Court under Article 226 of the Constitution of India in issuing writ of certiorari and held as under:- "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts of tribunals these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath vs. Ahmad Ishaque, 1955(1) SCR 1104 : (S) AIR 1955 SC 233 ); Nagendra Nath vs. Commr. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi vs. Bachittar Singh, AIR 1960 SC 1168 ." 13. In the case of "State of Madras, Vs. G. Sundaram" reported in AIR 1965 SC 1103 , another Constitution Bench of the Hon'ble Supreme Court of India has held that High Court can only enquire whether finding is based on no evidence, however, it cannot re-appreciate the evidence and finding recorded during the departmental enquiry. It has been held as under:- "9. It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Art. 226 of the Constitution. This view was reiterated in Union of India vs. H.C. Goel, AIR 1964 SC 364 ." 14. In the case of "State of Andhra Pradesh vs. Chitra Venkata Rao" [reported in (1975)2 SCC 557 ], the Hon'ble Supreme Court has held that the High Court is not a Court of Appeal under Article 226. The departmental authorities alone are sole Judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter to be agitated before the Court. The departmental authorities alone are sole Judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter to be agitated before the Court. In para 21 it has been held, "21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. vs. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The court 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. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226." 15. The basic principles relating to judicial review of administrative or statutory discretion has been laid down in the case of "Associated Provincial Picture Houses Limited vs. Wednesbury Corpn.", [reported in (1948) 1 KB 223] which is famously known as the 'Wednesbury case'. It has been observed by Lord Greene in the said case:- "12. ....if it is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense, It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law, He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith: and in fact, all these things run into one another." Lord Green also observed (KB p. 230 : All ER p. 683) "......it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable........ The effect of the legislation is not to set up the court as an arbiter of the correctness one view over another." 16. It is not what the court considers unreasonable........ The effect of the legislation is not to set up the court as an arbiter of the correctness one view over another." 16. From the aforesaid principles laid down in the 'Wednesbury Case it can be concluded that to arrive at a decision on "reasonableness" the Court has to find out if some relevant factors have been left out or irrelevant factors have been taken into account or whether the decision arrived at is such which no sensible person could have reasonably arrived at. It is for the authority to decide upon the choice of penalty and not for the Court to substitute its view. In the case of "Union of India and Another vs. G. Ganayutham", [reported in (1997)7 SCC 463 ], the Hon'ble Supreme Court has summarized the current position of 'proportionality in administrative law in England and India as under:- "31. (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrive at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. (3)(a) As per Budgdaycay, Brind and Smith as long as the convention is not incorporated into English law, the English court merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. These are the CCSU principles. (3)(a) As per Budgdaycay, Brind and Smith as long as the convention is not incorporated into English law, the English court merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume as primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14." 17. From the record of the case, I find that enquiry has been conducted observing the principles of natural justice. The petitioner was afforded sufficient opportunity to defend himself at every stage. The disciplinary authority while substituting reasons for Article of Charge nos. 5 and 11 has given sufficient reason. Even leaving Charge Nos. 5 and 11 aside, Charge No. 1 has been fully proved and Charge Nos. 6, 9 and 10 have also been found partially proved against the petitioner. The appellate authority as well as the reviewing authority have also rejected the petition of the petitioner by well reasoned orders. 5 and 11 has given sufficient reason. Even leaving Charge Nos. 5 and 11 aside, Charge No. 1 has been fully proved and Charge Nos. 6, 9 and 10 have also been found partially proved against the petitioner. The appellate authority as well as the reviewing authority have also rejected the petition of the petitioner by well reasoned orders. The petitioner has not been able to establish that the findings against him have been arrived at by excluding relevant materials or by taking into consideration irrelevant materials. On consideration of the materials on record, I am of the opinion that this is not a case where the order of penalty has been passed without there being any evidence on record. 18. In the result, the writ petition is dismissed. 19. However, parties to bear their own cost.