Trinath Naik v. Chairman-cum-Managing Director, Indian Overseas Bank
2016-11-18
SUJIT NARAYAN PRASAD
body2016
DigiLaw.ai
JUDGMENT S.N.PRASAD, J. - The order of punishment dated 27.8.1999 is at Annexure-8 and its appellate order under Annexure-11 is under challenge. 2. Brief fact, in narrow compass, is that the petitioner while working as Clerk/Shroff in Indian Overseas Bank, Nuapada Branch was placed under suspension vide office order No.3063 dated 18.2.1998, subsequently it was revoked, he was reinstated in service vide order dated 4.11.1998. A charge-sheet was served upon him on 2.5.1998 alleging against him gross misconduct cause damage to the property of the Bank and doing any act prejudicial to the interest of the Bank. The petitioner had submitted his reply praying therein to drop the proceeding since there is no material available against him, the Disciplinary Authority, having found his reply not satisfactory, had initiated departmental enquiry. The Enquiry Officer, after recording the evidence of witnesses and the relevent documents, has found the charge proved, the disciplinary authority, accepting the finding, has imposed punishment of dismissal from service vide order dated 27.8.1999 which has been challenged by the petitioner before the appellate authority who has confirmed the same vide order dated 14.12.1999 (Annexure-11). 3. The Petitioner being aggrieved with the order is before this Court by way of this writ petition on the ground that the petitioner has not been provided with adequate and sufficient opportunity by not allowing him to cross-examine the witnesses, relevant documents had not been supplied to him, the witnesses had not stated specifically against him but relying upon memorandum of charge, the Enquiry Officer has found the charge proved and as such the entire enquiry is vitiated in the eye of law, since the principle of natural justice has not been followed and further the enquiry report is perverse, without considering the defence plea of the petitioner. 4. Counter affidavit has been filed by the Bank refuting the argument of the petitioner by submitting that the nature of allegation against the petitioner is serious which is not expected from the employee like the petitioner who is working in the Bank and it is expected that the Bank Personnel is to act with utmost integrity. The Disciplinary Authority after preliminary enquiry has framed a charge, he was asked to appear before the Enquiry Officer, he has appeared, cross-examined the witnesses by fully participating in the proceeding, the Enquiry Officer after taking into consideration the material placed before him, has found the charge proved.
The Disciplinary Authority after preliminary enquiry has framed a charge, he was asked to appear before the Enquiry Officer, he has appeared, cross-examined the witnesses by fully participating in the proceeding, the Enquiry Officer after taking into consideration the material placed before him, has found the charge proved. The Disciplinary Authority has accepted the enquiry report, inflicted the punishment of dismissal from service which has been challenged by the petitioner before the appellate authority in which the order of punishment has been confirmed. 5. It has been submitted that there is fact finding of proving of charge with the concurrence of the two authorities and as such this Court sitting under Article 226 of the Constitution of India may not exercise the power of the appellate Court. This Court has heard learned counsel for the parties at length and perused the documents available on record. 6. Before appreciating the argument advanced on behalf of the parties, it is relevant to bring on record the nature of allegation. The Branch had granted a number of small loans and agricultural loans during the period January 1996 to April 1997. Taking advantage of the fact that the CSE was the Senior Clerical member of the Branch, the CSE got sanctioned small loans and agricultural loans in favour of various borrowers. While doing so, the CSE had misused his position and insisted on the borrowers payment of illegal gratification by them for getting the loans sanctioned in their favour, the CSE has also received illegal gratification from them as per details contained hereunder. The CSE had thereby obtained pecuniary advantage to himself and caused wilful damage to the property of the bank and its customers. The petitioner had been asked to appear before the Enquiry Officer to disprove the charge. The witnesses have been examined before the Enquiry Officer, this Court find that the petitioner himself has cross-examined the witnesses at length. The Enquiry Officer has found that the petitioner, apart from other allegations, has also involved in taking gratification for the purpose of disbursement of the loan amount for Integrated Rural Development Programme (in short ‘IRDP’) demanded Rs.3000/- to Rs.4000/- from each of the borrowers. The Enquiry Officer has found, after close scrutiny of the statement recorded in course of the enquiry by the witnesses, that the petitioner is involved in taking bribe from the borrowers at several numbers. 7.
The Enquiry Officer has found, after close scrutiny of the statement recorded in course of the enquiry by the witnesses, that the petitioner is involved in taking bribe from the borrowers at several numbers. 7. Learned counsel for the petitioner while questioning the enquiry report has submitted that whatever has come in the Examination-in-chief that has been rebutted in the cross-examination as would be evident from the examination of the management witness no.1 who has said in the Examination-in-chief that before sanctioning the loan, the petitioner has gone before the customer to inform him and called him to avail the loan but this testimony has stand rebutted in the cross-examination as would be evident from the statement of the witnesses who had said that on the instruction of the Sarpanch namely Laxman Gointa, he has instigated the petitioner in false case, on the basis of these the submission, it has been submitted that the enquiry report is perverse but this Court on examination of the enquiry report has found that the Enquiry Officer has taken into consideration this aspect of the matter. A specific finding to the effect that why the innocent borrowers will make complain against the Bank Staff because they were not any grudge against the petitioner. It has also come that the confession of the management witness no.1 disputing the statement recorded in the Examination-in-Chief has been said to be after thought that too may be at the instance of Sarpanch namely Laxman Gointa of Behera Panchayat and as such this testimony has been disbelieved. The Enquiry Officer has further found that several persons cannot complain against a staff without any reason and accordingly the charge has been proved by the Enquiry Officer. The Disciplinary Authority after accepting the report of Enquiry Officer has passed the order of punishment of dismissal from service taking the nature of allegation as serious. The petitioner has preferred an appeal before the appellate authority who after going through the material available on record and consider the submission of the petitioner has affirmed the order of punishment. 8.
The Disciplinary Authority after accepting the report of Enquiry Officer has passed the order of punishment of dismissal from service taking the nature of allegation as serious. The petitioner has preferred an appeal before the appellate authority who after going through the material available on record and consider the submission of the petitioner has affirmed the order of punishment. 8. This Court sitting under Article 226 of the Constitution of India can exercise the power of judicial review if the enquiry report is found to be perverse and if there is violation of principle of natural justice but in the routine matter the scope of High Court sitting under Article 226 of the Constitution of India is very limited. In this regard reference may be made to the judgment rendered by the Hon’ble Supreme Court in the case of State of U.P. and others vrs. Raj Kishore Yadav another reported in (2006) 5 SCC 673 , wherein it has been held at para-4, which is being quoted herein below:- “4. Xxx xxx It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order or punishment of dismissal from service should not be disturbed.” In another judgment in the case of Union of India and another vrs. K.G. Soni reported in (2006)6 SCC 794 , it has been held at para-14 and 15, which is being quoted herein below:- “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 the case of Associated Provincial Picture Houses Ltd. Vrs. Wednesbury Corporation reported in (1948) 1 KB 223, 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.
Wednesbury Corporation reported in (1948) 1 KB 223, 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.” In another judgment in the case of B.C Chaturvedi vrs. Union of India and others reported in (1995) 6 SCC 749 , it has been held at para-12 and 13, which is being quoted herein below:- “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 Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding when the authority accepts that evidence and conclusion received 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 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 reported in AIR 1964 SC 364 , this Court held at para-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.” It has also been held in the case of Indian Oil Corporation Ltd. and another vrs. Ashok Kumar Arora reported in (1997) 3 SCC 72 at para-20, which is quoted herein below:- “20. Xxx xxx The jurisdiction of the High Court in such cases is very limited for instance where it is found that he domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. vrs. S. Sree Rama Rao, (1964) 3 SCR 25 , State of A.P. vrs.
There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. vrs. S. Sree Rama Rao, (1964) 3 SCR 25 , State of A.P. vrs. Chitra Venkata Rao, (1975) 2 SCC 557 , Corporation of the City of Nagpur vrs. Ramchandra, (1981) 2 SCC 714 and Nelson Motis vrs. Union of India, (1992) 4 SCC 711 .” In another judgment in the case of State of Uttar Pradesh and another vrs. Man Mohan Nath Sinha and another reported in (2009) 8 SCC 310 , it has been held at para-15, which is being quoted herein below:- “15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a Court of appeal and reach its own conclusions.” In another judgment in the case of General Manager (Operations), State Bank of India and another vrs. R.Periyasamy reported in (2015) 3 SCC 101 , it has been held at para-9 and 12, which is being quoted herein below:- “9. In State Bank of Bikaner and Jaipur vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584 , this Court observed as follows: (SCC page 587, para 7) “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.
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.” “12. Further, in Union Bank of India vrs. Vishwa Mohan, (1998) 4 SCC 310 , this Court was confronted with a case which was similar to the present one. The respondent therein was also a bank employee, who was unable to demonstrate to the Court as to how prejudice had been caused to him due to non-supply of the inquiry authorities report/findings in his case. This Court held 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 depositors would be impaired. Thus, in that case the Court set aside the order of the High Court and upheld the dismissal of the bank employee, rejecting the ground that any prejudice had been caused to him on account of non-furnishing of the inquiry report/findings to him.” This Court after going through the settled proposition of law as has been laid down by the Hon’ble Supreme Court in these cases, I have found that the jurisdiction of High Court sitting under Article 226 of the Constitution of India is very limited so that the High Court may not exercise the power as a second appellate Court in case of three concurrent finding which has been arrived after appreciating the material produced before it and the High Court cannot re-appreciate the evidence produced before the Enquiry Officer which has been taken into consideration by the original authority and the appellate authority. In the judgment rendered in the case of General Manager (Operations), State Bank of India (supra), (2015) 3 SCC 101 that pertains to the bank employee wherein it has been observed 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. 9.
In the judgment rendered in the case of General Manager (Operations), State Bank of India (supra), (2015) 3 SCC 101 that pertains to the bank employee wherein it has been observed 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. 9. This Court after taking into consideration the settled proposition and the nature of allegation as also considering that there is three concurrent findings, is not inclined to exercise its extra ordinary jurisdiction to reverse the fact finding based upon the cogent evidence. Accordingly, this Court finds that the impugned order needs no interference, hence the writ petition fails and accordingly dismissed. Petition dismissed.