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2016 DIGILAW 569 (CAL)

Sharmila Kar v. UCO Bank

2016-07-20

DEBANGSU BASAK

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JUDGMENT : DEBANGSU BASAK, J. 1. The challenge in the present writ petition is the order of punishment dated December 4, 2007 passed against the original writ petitioner as upheld by the appellate authority by its Order dated April 7, 2008. 2. Consequent to the death of the original writ petitioner the writ petition was amended and is now being proceeded with by the heirs and legal representatives of the deceased original petitioner. 3. The original writ petitioner was a Branch Manager of the respondent no.1. A disciplinary proceedings alleging irregularities in the dealings of the original writ petitioner as a Branch Manager was initiated against him. Such disciplinary proceedings ultimately culminated into the order of punishment dated December 4, 2007 and the appellate authority’s order dated April 7, 2008 upholding the same. 4. Learned Advocate for the petitioners has submitted that, the Enquiry Officer did not discharge the duties of an Enquiry Officer. The Enquiry Officer did not appraise himself of the evidence placed on record. He did not consider the defence raised by the delinquent. The Enquiry Officer arrived at the findings with regard to the articles of charges without any basis, without discussing the defence taken in respect thereof and that, such findings are perverse. He has referred to few of the articles of charges, the defence with regard thereto and the findings of the Enquiry Officer and has tried to demonstrate that, the findings of the Enquiry Officer suffers from the vice of perversity. He has submitted that, the vice of perversity attaches all the articles of charges. 5. Learned Advocate for the petitioners has referred to a letter dated August 17, 2007 issued by the disciplinary authority. He has submitted that, disciplinary authority had acted with a closed mind in the disciplinary proceedings. The disciplinary authority had invited a representation against the Enquiry Officer’s report by the letter dated August 17, 2007. However, the contents of the letter dated August 17, 2007 would demonstrate that, the disciplinary authority had predetermined the issue and that the disciplinary authority was affording an empty formality to the delinquent in allowing the delinquent to make the representation and claiming to consider the same. 6. However, the contents of the letter dated August 17, 2007 would demonstrate that, the disciplinary authority had predetermined the issue and that the disciplinary authority was affording an empty formality to the delinquent in allowing the delinquent to make the representation and claiming to consider the same. 6. Learned Advocate by the petitioners has relied upon 2006 Volume 5 Supreme Court Cases page 88 (M.V. Bijlani v. Union of India & Ors.), and 2009 Volume 2 Supreme Court Cases page 570 (Roop Singh Negi v. Punjab National Bank & Ors.), and has submitted that, a disciplinary proceeding being quasi criminal in nature, there should be some evidence to prove the charge. The Enquiry Officer performs a quasi judicial function and that, he must pronounce upon the evidence on record and arrive at a conclusion on the basis of preponderance of probabilities after considering all the materials made available on record. The Enquiry Officer ought to have discussed the articles of charges and the defence with regard thereto to return the findings as recorded in the Enquiry Report. 7. Learned Advocate for the Bank has submitted that, the Court in exercise of jurisdiction under Article 226 of the Constitution of India need not reapprise the entirety of the evidence as an Appeal Court. It is concerned with the decision making process rather than the decision per se. Given the serious nature of charges against the delinquent and the position of trust held by him, the punishment awarded cannot be said to be shocking. The Enquiry Report is not visited by any perversity as alleged by the petitioners. The Court need not undertake a detailed appreciation of the materials on record to find out the alleged perversity of the Enquiry Report. He has referred to the Enquiry Report in details, the charges as well as the defence of the delinquent and has submitted that, the Enquiry Officer had considered the articles of charges individually on the basis of the defence taken and the materials produced. The Enquiry Officer has submitted a detailed Enquiry Report running into several pages. He has given reasons for the findings arrived at. It cannot be said that the Enquiry Report is without reasons. There being no procedural irregularity or illegality, the Court ought not to interfere with the results of the departmental proceedings. 8. The Enquiry Officer has submitted a detailed Enquiry Report running into several pages. He has given reasons for the findings arrived at. It cannot be said that the Enquiry Report is without reasons. There being no procedural irregularity or illegality, the Court ought not to interfere with the results of the departmental proceedings. 8. On the scope of judicial review in respect of a departmental proceedings, learned Advocate for the Bank has relied upon 2009 Volume 15 Supreme Court Cases page 620 (Chairman-Cum-Managing Director, Coal India Limited & Anr. v. Mukul Kumar Choudhuri & Ors.), and 2015 Volume 2 Supreme Court Cases page 610 (Union of India & Ors. v. P. Gunasekaran). 9. The contentions of the parties give rise to two issues for consideration in the present writ petition. The first issue being whether the impugned decision of the disciplinary authority as upheld by the appellate authority suffers from any perversity so as to result in breach of the principles of natural justice. The second issue being whether the disciplinary proceedings are vitiated by procedural illegalities and/or irregularities. 10. In P. Gunasekaran (supra) the Supreme Court has laid down the parameters of interference in respect of disciplinary proceedings by a Court exercising jurisdiction under Article 226/227 of the Constitution of India. In paragraphs 12 and 13 it has held as follows:- “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. 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.” In Mukul Kumar Choudhuri & Ors. (supra) it has been held that, “13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision-making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.” 11. A Writ Court need not reapprise the evidence before the Enquiry Officer as a Court of appeal. The contentions on behalf of the petitioner that, the report of the Enquiry Officer suffers from the vice of perversity requires detailed scrutiny of the materials placed on record as a Court of appeal to arrive at such a conclusion. In my view, the conclusions arrived at by the Enquiry Officer cannot be termed as perverse. He has given reasons for the arrival at such conclusions. An Appellate authority may come to a finding that the conclusions are not correct. However, a Writ Court need not undertake such an exercise. 12. The first issue, therefore, is answered in the negative and against the petitioner. 13. The disciplinary authority had by its writing dated August 17, 2007 forwarded the report of the Enquiry Officer to the delinquent. Such report was sent to the delinquent so as to allow the delinquent to make a representation, if any, against such report. The last sentence of the letter dated August 17, 2007 speaks as follows:- “Please note that the undersigned concurs with the finding of the enquiry officer.” 14. The author of the letter dated August 17, 2007, which contains such sentence, is the disciplinary authority. Such sentence leads one to infer that the disciplinary authority had prejudged the issue, arrived at a decision on the basis of the Enquiry Report, and the facility of a representation was an empty formality extended to the delinquent. 15. In a departmental proceedings, the delinquent is entitled to a fair trial. The concept of a fair trial brings into its sweep the principle that, not only justice must be done, it must be seen to be done. Viewed in such perspective one can say that, the disciplinary authority did not have an open mind as against the delinquent. Justice is not seen to have been done by the disciplinary authority. The concept of a fair trial brings into its sweep the principle that, not only justice must be done, it must be seen to be done. Viewed in such perspective one can say that, the disciplinary authority did not have an open mind as against the delinquent. Justice is not seen to have been done by the disciplinary authority. The last sentence in the letter dated August 17, 2007 as quoted above leads one to infer such conclusions. The last sentence of the letter dated August 17, 2007 visits the disciplinary proceedings with an illegality which vitiates the proceedings subsequent to the report of the Enquiry Officer. 16. The delinquent is no more. Therefore, setting aside the disciplinary proceedings from the stage of the Enquiry Report and sending the disciplinary proceedings for retrial is not an option available. However, since the proceedings stands vitiated from the stage of the Enquiry Report, the imposition of punishment against the delinquent cannot be sustained. The order of punishment as upheld by the appellate authority is set aside. 17. The service of the delinquent was terminated with effect from December 4, 2007. The delinquent, therefore, did not work from December 4, 2007 to the time of his superannuation if he is considered to be in employment. Since the delinquent did not work and the possibility of a retrial does not exist, interest of justice would be sub-served by directing the bank to pay the delinquent the subsistence allowance from the date of dismissal to the date of his superannuation, if not already paid. The bank will, therefore, disburse the subsistence allowance to the heirs and legal representatives of the delinquent, in accordance with their shares to the estate as also any other monetary benefit accruing to the delinquent during his service. The bank should do so within six weeks from the date of this order being communicated to them. 18. With the aforesaid directions W.P. No. 1656 of 2008 is disposed of. No order as to costs.