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2014 DIGILAW 1992 (ALL)

SHIV MANGAL PRASAD v. STATE OF U. P.

2014-07-09

SUNEET KUMAR

body2014
Suneet Kumar, J. 1. Heard the learned Counsel for the petitioner as well as Shri R.K. Singh holding brief of Shri S.K. Singh, learned Counsel for the respondents. The petitioner was appointed as clerk in the Punjab National Bank and at the relevant time was computerized teller operator ( C.T.O.) at Branch Office, Gahji. The petitioner was charge sheeted on 15.2.2006 for alleged lapses committed by him while working in the Branch Office, Durgaganj. The charges briefly is as follows: ( i) On 14.2.2005, petitioner passed withdrawal form for Rs. 3,800/- of Smt. Dulari Devi account holder of SB Account No. 732 despite the fact that Smt. Dulari Devi had already expired prior to that date. ( ii) On 6.1.2004, petitioner unauthorizedly passed an amount of Rs. 42,699/- being proceeds of FDR with interest in respect of FDR No. 986858 Branch S. No. 2003005 issued in MBFD Scheme A/c No. 1490 of Smt. Chunni Devi for Rs.40,000, due on 10.3.2005, and credited the proceeds to his own SB Account No. 4063 by transfer. ( iii) On 27.1.2004, petitioner unauthorizedly passed MBFD of Rs. 30,000/- having A/c No. 1339 Receipt No. 96646, Branch S. No. 20020050, which was pledged with the bank by Shri Lal Bahadur Singh, against the loan taken by him under Demand Loan A/c No. DL/fd/66, and an amount of Rs. 34,597/-, on account of proceeds of this FDR alongwith the interest, was unauthorisedly credited in his SB Account No. 4063 despite the fact that an amount of Rs. 8,644/- ( with interest) was yet to be recovered in respect of the said Demand Loan Account. ( iv) Between 30.6.2003 and 13.8.2005, amount of Rs. 90,000/- ( single cash entry), Rs. 3,24,000/- ( 26 cash entries) and Rs.74,800/- ( 10 cash entries) have been deposited in his SB A/c No. 4063, CD Account No. 78 and 71 at BO: Durgaganj, which are beyond his known source of income. 2. In the departmental inquiry the petitioner was given opportunity to lead evidence and after completing the enquiry, the Inquiry Officer submitted an inquiry report holding charge No. 1, 2 and 3 proved and charge No. 4 was not proved, the inquiry report was served upon the petitioner alongwith the show cause notice dated 26.12.2007 proposing punishment of removal from service with superannuation benefits. 3. 3. To the show cause notice, the petitioner submitted his reply, the disciplinary authority after considering the findings of the Inquiry Officer and taking into consideration, the evidence produced during the Inquiry and the submissions made by the petitioner imposed the proposed penalty of removal from service with superannuation benefits, vide order dated 10.3.2008. 4. Aggrieved by the order of the disciplinary authority, the petitioner preferred an appeal stating that the matter be re enquired; the Inquiry Officer was being changed frequently and has not accepted his written briefs; was not given proper opportunity to reply to the charge-sheet and was denied opportunity to produce his witness during inquiry. Further as per findings of the Inquiry Officer, there is only procedural lapses and no loss was caused to the Bank. 5. The appellate authority taking notice of all the objections raised by the petitioner and examining the records of the disciplinary proceedings did not find any procedural irregularity or lapses on the part of the Inquiry Officer as the charges stood proved on the basis of documentary evidence and records. The order of the disciplinary authority was affirmed and according to the appellate authority the conduct of the petitioner amounts to misconduct under para. 5( d) and 5( j) of the Bipartite Settlement. 6. The learned Counsel for the petitioner has submitted that the enquiry is vitiated as no documents as demanded by the petitioner, was provided nor opportunity was given to the petitioner, there was no complaint by any of the customers of the Bank against the petitioner and further if all the allegations are accepted, no loss was caused to the Bank, hence the punishment of removal is harsh and not commensurate to the guilt. 7. In rebutal Shri R.K. Singh has submitted that the petitioner was charged for misconduct causing loss to the Bank and the conduct of the petitioner clearly demonstrates that Bank had lost faith in the petitioner and it is immaterial as to whether any loss was caused to the Bank. 8. The rival submission fall for consideration. 9. The Supreme Court in the case of State of Madras v. G. Sundaram AIR 1965 SC 1103 had explained the scope of judicial review: "7. 8. The rival submission fall for consideration. 9. The Supreme Court in the case of State of Madras v. G. Sundaram AIR 1965 SC 1103 had explained the scope of judicial review: "7. It is well settled now that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It was so held in State of Orissa v. Murlidhar AIR 1963 SC 404 , where it was said at p. 408: "Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment like High Court appears to have been persuaded to appreciate the evidence for itself, and that, in our opinion, is not reasonable or legitimate." 8. Similar view was emphatically expressed in State of Andhra Pradesh v. Sree Rama Rao AIR 1968 SC 1728, wherein it was said at p. 1726: "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; iris 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. But the departmental authorities are, if the enquiry is otherwise properly held the sole judges of facts and if there be 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 of the Constitution." 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 at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. This view was reiterated in Union of India v. H.C. Goel." 10. In State Bank of India v. Ramesh Dinkar Punde 2006 ( 110) FLR 1159 ( SC) : ( 2006) 7 SCC 212 the Court held that the High Court/Tribunal cannot re appreciate the evidence as it is not sitting in appeal: "13. We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the findings of the Inquiry Officer, the Disciplinary Authority and the Appellate Authority by acting as a Court of appeal and re-appreciating the evidence." 11. The Supreme Court recently in Nirmala J. Jhala v. State of Gujarat and another 2013 ( 138) FLR 227 ( SC) : ( 2013) 4 SCC 301 after considering earlier judgments has again reiterated the principle of judicial review in disciplinary proceedings and held that in the departmental enquiry, the nature and standard of proof is not at par with the quasi judicial and quasi criminal proceedings; the principle of preponderance is applicable and not the doctrine of proof beyond reasonable doubt. 12. The Apex Court further considered the parameter of the Court's power of judicial review of administrative action or decision. The relevant observation made in Nirmala J. Jhala ( supra) is as follows: "The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. 12. The Apex Court further considered the parameter of the Court's power of judicial review of administrative action or decision. The relevant observation made in Nirmala J. Jhala ( supra) is as follows: "The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The 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. This apart, even when some defect is found in the decision making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene." 13. The contention of the learned Counsel for the petitioner that no loss was caused to the bank by his conduct is not acceptable, it is not the loss or quantum of loss that is relevant, the loss of confidence of the Bank in its employee and unsuitability is the guiding consideration. 14. The contention of the learned Counsel for the petitioner that no loss was caused to the bank by his conduct is not acceptable, it is not the loss or quantum of loss that is relevant, the loss of confidence of the Bank in its employee and unsuitability is the guiding consideration. 14. Supreme Court in State Bank of India and another v. Bela Bagchi and others 2005 ( 107) FLR 258 ( SC) : ( 2005) 7 SCC 435 ; relying upon Disciplinary Authority-cum-Regional Manager and others Nikunj Bihari Patnaik 1996 ( 73) FLR 1252 ( SC) : ( 1996) 9 SCC 69 held that there is no defence available to say that there was no loss as a result of the employee's conduct. 15. In Divisional Controller, K.S.R.T.C. ( N.W.K.R.T.C.) v. A.T. Mane ( 2005) 3 SCC 254 ; the Supreme Court held that it is not quantum of money that the employee misappropriates. In the said case, only Rs. 93 was found to be misappropriated, the Court held that it is the loss of confidence of the employer which is primary factor for imposition of penalty and not the amount of money misappropriated. 16. In the case of T.N.C.S. Corpn. Ltd. and others v. K. Meerabai ( 2006) 2 SCC 255 , such plea had been rejected by the Court. It was pointed out at page SCC 267 para. 29 as under: "29. Mr. Francis also submitted that a sum of Rs. 34,436.85 being 5% of the total loss of Rs. 6,88,735/- is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court and relief prayed for by both the parties can be suitably molded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis-appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis-appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering there for with the quantum of punishment awarded by the disciplinary and Appellate Authority." 17. Similar view was taken in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya 2011 ( 129) FLR 937 ( SC) : ( 2011) 4 SCC 584 as well as in A.P.S.R.T.C. v. Raghuda Siva Sankar Prasad ( 2007) 1 SCC 222 . 18. In State Bank of India and others v. Narendra Kumar Pandey 2013 ( 136) FLR 704 ( SC) : ( 2013) 2 SCC 740 the Court held that if the charges are borne out from documents kept in normal course of business, no oral evidence is necessary to prove those charges i.e., uncontroverted documentary evidence in such situation is sufficient to prove the charges. Paragraphs 23 and 26 is as follows: "23. The Inquiring Authority has examined each and every charge levelled against the charged officer and the documents produced by the presenting officer and came to the conclusion that most of the charges were proved. In a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. Reference may be made to the judgments of this Court reported in Union of India v. Sardar Bahadur ( 1972) 4 SCC 618 and R.S. Saini v. State of Punjab and others ( 1999) 8 SCC 90 . The documents produced by the bank, which were not controverted by the charged officer, supports all the allegations and charges levelled against the charged officer. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the bank and not controverted it is always open to the Inquiring Authority to accept the same. 26. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the bank and not controverted it is always open to the Inquiring Authority to accept the same. 26. This Court in State of Andhra Pradesh v. Sree Rama Rao AIR 1963 SC 1723 held: "7.....Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that 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 especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the Inquiring Authority." 19. The punishment of dismissal imposed cannot be substituted by this Court as the petitioner was responsible for causing loss to the bank and it was a deliberate act on his part in transferring proceeds of the customers in his own savings account, this factum is not disputed by the petitioner, thus the bank had lost confidence in the petitioner and found him unsuitable to hold the post. ( Refer: State Bank of India and others v. Ramesh Dinkar Punde 2006 ( 110) FLR 1159 ( SC) : ( 2006) 7 SCC 212 ; State Bank of India and others v. Narendra Kumar Pandey 2013 ( 136) FLR 704 ( SC) : ( 2013) 2 SCC 740 ; Vice Chairman, Kandriya Vidyalaya Sangathan and another v. Girdharilal Yadav ( 2004) 6 SCC 325; Union of India and another v. G. Ganayutham ( 1997) 7 SCC 463 : 1997 ( 77) FLR 497 ( SC) and State of U.P. and others v. Raj Kishore Yadav and another) 2006 ( 110) FLR 709 ( SC) : ( 2006) 5 SCC 673 . 20. In the facts of the present case, the petitioner does not dispute the allegations of the misconduct nor it has been argued that there was any legal infirmity in conducting the proceedings. The charges has been proved on the basis of uncontroverted documents of the bank, since the factum of the allegations is not being disputed by the petitioner, the Court cannot examine the sufficiency of the evidence. 21. The charges has been proved on the basis of uncontroverted documents of the bank, since the factum of the allegations is not being disputed by the petitioner, the Court cannot examine the sufficiency of the evidence. 21. For the reasons and law stated herein above, the disciplinary proceedings conducted against the petitioners is in accordance with the provisions of the Bipartite Settlement, the petitioner was given all reasonable opportunity to present his case. The charges was proved against the petitioner on documentary evidence. The Court declines to interfere under Article 226 of the Constitution of India. The petition is, accordingly, dismissed.