HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- [CASE NUMBER] Appellant :- [ENTITY] And 2 Others Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] Hon'ble Dr. [ENTITY],Chief Justice Hon'ble [ENTITY],J.
This special appeal is from a judgement of the learned Single Judge dated 8 August 2014 in a writ petition1 filed by the respondent challenging an order of compulsory retirement following a disciplinary inquiry.
The respondent was a member of the sub-staff of the appellant and, at the relevant time, was working as a peon at the Ram Ghat Branch. A disciplinary inquiry was initiated on a charge of misconduct, based on a charge sheet dated 11 June 2003. Pending the disciplinary proceedings, the respondent was placed under suspension on 27 September 2002. The charge was that a Savings Bank Account bearing SB Account 17255, which was originally in the name of Smt. [ENTITY], was subsequently converted into a joint account with a person by the name of [ENTITY]. The allegation is that on 15, 16, 17 and 19 July 2002, four cheques respectively in the amount of Rs.50,000/-, Rs.25,000/-, Rs.25,000/- and Rs.50,000/- purported to be signed by Smt. [ENTITY] were encashed. An FIR was lodged by the account holder, stating that the Bank had made payments of the aforesaid amounts though the cheques had not been signed by the account holder. The charge against the respondent was that on 12 July 2002, he had approached [ENTITY], a member of the circle staff with a request letter purportedly signed by the account holder for the issuance of a Cheque Book. Accordingly, a Cheque Book bearing Nos. 587571 to 587580 was issued on the request of the respondent to one [ENTITY], a third party. The respondent is alleged to have requested the officials of the Bank for expediting the passing of the cheques. The respondent was on leave on 19 July 2002 but, it is alleged, he had visited the Branch on that date with a request to [ENTITY] of the clerical cadre for debiting one of the cheques in the amount of Rs.50,000/- to the Savings Bank Account of the account holder. The respondent is thereafter alleged to have requested another officer [ENTITY] for getting it passed. Since the respondent was in a hurry, on being asked to wait, it is alleged, he took the cheque to another officer for passing the cheque for payment. The allegation was that all the four cheques in the total amount of Rs.1,50,000/- were fraudulently encashed and were in the handwriting of the respondent. It was alleged that the respondent had fraudulently got a Cheque Book bearing Serial Nos. 587571 to 587580 issued in respect of the Savings Bank Account bearing SB Account 17255 and fraudulently got encashed the four cheques in the amount of Rs.1.5 lacs against the said Savings Account.
During the course of the disciplinary proceedings, the respondent was assisted by a defence representative. The Bank examined its witnesses in support of the allegation of misconduct, including its own officers and a handwriting expert. The respondent examined witnesses in defence. The inquiry officer, by its report dated 3 July 2004, held that the charge of misconduct was proved. The finding in that regard was as follows:
"I observe that the CSE has requested for expediting passing of all 4 cheques. As per Mex 1G/2 (Statement of Shri [ENTITY] [MW 6]) CSE has come to him on all four occasions on 16.07.2002, 17.07.2002 and 19.07.2002 and requested him to expedite passing of those cheques. After the cheques were passed he himself took those cheques for taking payment order to Officer/Manager on cheques which were beyond the powers of MW 6. It is further observed from MEX 1G/2 that the CSE came on 19.07.2002 also and took the cheque for passing after the same was debited. Later MW 6 came to know that CSE was on leave on 19.07.2002 Shri [ENTITY] (MW 1) has stated in his statement (MEX 1C/2) that on 16.07.2002 the cheque for Rs.50,000/- (MEX 12/10) was brought to him by CSE for passing for payment. It is further observed from the statement (MEX 1D/2) of Shri [ENTITY] (MW 5) that the CSE has brought the cheque dated 19.07.2002 for Rs.50,000/- (MEX 12/12) for payment. It is further observed from the statement of Shri [ENTITY] (MEX IE/2) that on 19.07.2002 the peon brought one cheque to him for payment. Shri [ENTITY] told him to wait till Manager comes. But he was in a hurry therefore he was referred to the Senior Accountant. From the above, it is clearly proved that CSE was instrumental in expediting passing of all 4 cheques and has himself taken the said cheques for payment. Defense has pleaded that taking cheque for passing to MW-5 by CSE there is nothing unusual and CSE in normal discharge of his duty was duty bound to do it and no motive can be attributed about the same. As regards deposition of MW-6 the defence pleaded that if the CSE's intervention is by virtue of normal discharge of his duties, no motive can be attributed reading in between line is an attempt to deprive the CSE of his livelihood due to malus animus manifested in a concerted manner. The said contention of defence cannot be accepted. Though there is no unusual thing in taking the cheque for passing but taking into account the other evidence i.e. requesting for issue of cheque book to third party by which amount was fraudulently withdrawn, taking the said cheques for payment by which money was fraudulently withdrawn and handwriting of CSE on the said cheques clearly shows the involvement of CSE. It is further observed that CSE was on leave on 19.07.2002. However on the said day he had come to the branch and was involved in expediting passing of the cheques for Rs.50,000/- in the said Account. The above clearly shows that on 19.07.2002 CSE had come to the branch for the purpose of getting the cheque passed and not for informing about his leave."
The report of the handwriting expert and the evidence on that behalf was also summed up in the following findings:
"It is observed from the Handwriting Expert opinion dated 09.10.2002 (MEX 3/10) submitted by Shri [ENTITY] (MW 4) that the questioned writing D 1 to D 5 i.e. on Mex 12/9 TO Mex 12/13 has been written by the CSE. In his report MEX 3/10, MW 4 has given reasons for arriving at such conclusion. I have perused the said report. It is observed that there is no basic difference between the questioned and sample writing. Innatural variations in the questioned is due to control on muscular freedom and stopping of writer in to ornamental style. As such it is proved that the signature on all the abovesaid cheques through which Rs.1,50,000/- were fraudulently withdrawn is in the handwriting of CSE.
Though there is no unusual thing in taking the cheque for passing but taking into account the other evidence i.e. requesting for issue of cheque book to third party by which amount was fraudulently withdrawn, taking the said cheques for payment by which money was fraudulently withdrawn and handwriting of CSE on the said cheques clearly shows the involvement of CSE. It is further observed that CSE was on leave on 19.07.2002. However on the said day he had come to the branch and was involved in expediting passing of the cheques for Rs.50,000/- in the said Account. The above clearly shows that on 19.07.2002 CSE had come to the branch for the purpose of getting the cheque passed and not for informing about his leave."
The disciplinary authority, after furnishing a notice to show cause and furnishing a copy of the inquiry report to the respondent held that the charge of misconduct was proved and imposed a punishment of compulsory retirement under Regulation 4, clause (b), Chapter XI of the [ACT]. Moreover, it was directed that the period of suspension shall be treated as not on duty. The order of the disciplinary authority was carried in an appeal. The appellate authority has confirmed the finding of misconduct and the penalty imposed on 17 June 2005.
The respondent filed a writ petition challenging the disciplinary proceedings and final order. The learned Single Judge has come to the conclusion that the matter requires a thorough investigation and that the imposition of a major penalty was not justified. The proceedings were remitted back to the disciplinary authority with the following observations:
"The inquiry report is on record and contained its analysis and evidence and findings. The inquiry report reveals the allegation that the petitioner had approached one MW-6 for issuing the cheque book to third person on the basis of a request letter which had been issued. That is to say not on a requisition slip but on a letter. The cheque book was issued to one [ENTITY]. The evidence does not reveal any clear finding that the petitioner was guilty of writing of any amount on the cheque or signing or forging the cheque. The handwriting expert who was examined has also not been able to say clearly that the writing on cheque was that of the delinquent employee. In the absence of recording any clear finding a major punishment has been imposed on the petitioner, which is not fair.
The matter clearly requires a thorough investigation. The major penalty imposed upon the petitioner is not justified in the facts and circumstances of the case. All the other officers of the Bank have been let off scot free. The petitioner has been made a escapegoat. The punishment imposed by the authority is set aside by this Court. The matter is remanded back to the disciplinary authority for fresh consideration of the entire matter.
The matter on remand may be decided by the Bank within a period of three months from the date of production of certified copy of the order before him."
The learned Single Judge has directed that the period from the date of the order be treated as a period of suspension during which the respondent would be allowed the usual subsistence allowance.
The submission which has been urged on behalf of the appellant is that the learned Single Judge has transgressed the jurisdiction of the Court under [SECTION] of the [ACT] while dealing with a case of a challenge to a disciplinary proceeding and a finding of misconduct. It has been urged that the learned Single Judge has virtually reappreciated the evidentiary material and has attempted to substitute the conclusion arrived at by the inquiry officer. The learned counsel submitted that in a writ petition challenging the outcome of a disciplinary proceeding, the test is whether the finding of misconduct is based on some evidence. The Court would not interfere unless there is some manifest procedural irregularity or perversity or if the Court comes to the conclusion that the punishment which has been imposed is shocking or strikingly disproportionate.
On the other hand, it has been urged on behalf of the respondent that the order passed by the learned Single Judge is eminently fair and proper since (i) the handwriting expert was not allowed to be cross-examined by another handwriting expert as demanded by the respondent; (ii) during the course of his cross examination, the handwriting expert produced by the Bank was unable to state as to whether the signature on the disputed cheques was the signature of the respondent; (iii) though the officer of the Bank did not have the authority to pass a cheque of an amount of Rs. 50,000/-, he had exceeded his powers in passing the cheque without tallying the signature with the record; (iv) whereas the respondent was selected for disciplinary action, three other officers of the Bank had been exonerated and there was, thus, an act of discrimination against him; and (v) the disciplinary authority had only partially considered the statement of witnesses.
Before we deal with the rival submissions, it needs to be underscored that the scope of a challenge under [SECTION] of the [ACT] to a finding of misconduct in a disciplinary proceeding lies within narrow parameters. The true test to be applied is, whether there is a finding of misconduct which is sustainable with reference to some evidence. In other words, the Court may interfere in only a limited class of cases where it finds that there is absolutely no evidence to sustain the charge of misconduct. If there is some evidence, the sufficiency of the evidence is not a matter which falls for judicial determination. The scope for interference lies in a narrow compass, such as where there is a manifest perversity in the finding of the Inquiry Officer or disciplinary authority. If there has been a breach of the principles of natural justice, the Court may exercise its jurisdiction, particularly where an element of prejudice has been shown. These principles are settled by several decisions of the Supreme Court and we may, for the purposes of these proceedings, refer to some of the decided cases.
In [PRECEDENT], the Supreme Court held that, in exercise of the power of judicial review, the Court would not normally substitute its own conclusion or penalty. The Court would interfere with the penalty imposed by the disciplinary authority when it shocks the conscience of the Court. The same principle has been followed in [PRECEDENT] where it was held as follows:
"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. 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. 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. (vide [PRECEDENT], [PRECEDENT], and [PRECEDENT], High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416)"
In State Bank of India vs. [ENTITY] Bhaskar and another4, the principle for the exercising judicial review has been summed up by the Supreme Court in para 13 as follows:
"Thus, in a proceeding under [SECTION] of the [ACT], the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgement the High Court has reappreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent 1 do not constitute any misconduct and that Respondent 1 was not guilty of any misconduct."
These principles have been followed in a more recent decision of the Supreme Court in [PRECEDENT] in para 28 as follows:
"The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: [PRECEDENT]; and [PRECEDENT])."
The judgment of the learned Single Judge having regard to above decisions of the Supreme Court cannot be sustained. The Single Judge has substituted her own findings by reappreciating the evidence. The learned Single Judge has applied a wrong test by virtually reappreciating the evidentiary material. The test before the learned Single Judge was, whether there is some evidence in support of the charge of misconduct or whether the finding in the disciplinary inquiry suffers from a manifest perversity or whether there was a procedural impropriety, such as a breach of the principles of natural justice. The learned Single Judge has proceeded to reappreciate the material and has remanded the proceedings to the disciplinary authority on the ground that the matter requires a thorough investigation. The observations of the learned Single Judge which, we have extracted in the earlier part of the order, would indicate that the limitations on exercising the power of judicial review under [SECTION] of the [ACT] have been transgressed. Having said this, we are of the view that the appropriate course of action for this Court, in a special appeal, would be to request the learned Single Judge to reconsider the submissions of the respondent having due regard to the parameters of judicial review. which we have noted above. We find from the impugned judgment, that even the submissions of the respondent in challenging the finding of misconduct and the punishment which has been imposed have not been recorded. In this view of the matter, we are of the view that the interest of justice would require that even the respondent should have a fair opportunity of addressing the challenge to the disciplinary proceeding having due regard to the settled legal parameters which we have adverted to above. In the absence of this exercise having been carried out by the learned Single Judge, it would be perhaps unfair for the Court, in a special appeal, to carry out that exercise.
In the circumstances, we allow the special appeal and set aside the impugned judgement and order of the learned Single Judge. The writ petition ([CASE NUMBER]) is, accordingly, restored to the file of the learned Single Judge. Since we have left it open to the respondent to urge all appropriate submissions upon remand, we are designedly not expressing any opinion on the tenability of the submissions on merit which were urged by the respondent in the special appeal, and which have been recorded in the earlier part of the judgement. Any expression of opinion by the Division Bench in a special appeal would have virtually concluded the proceedings and, therefore, we are refraining from doing so.
The learned Single Judge is requested to take up the writ petition for expeditious disposal since the petition has been pending since 2005.
The special appeal is, accordingly, disposed of in the aforesaid terms on remand. There shall be no order as to costs.
Order Date :- 10.12.2014 (Dr.[ENTITY],C.J.) RK ([ENTITY],J.) C.M. (Delay Condonation) Application No. 393646 of 2014 Case :- [CASE NUMBER] Hon'ble Dr. [ENTITY],Chief Justice Hon'ble [ENTITY],J.
There is a delay of 81 days which is reported by the registry in filing the special appeal. The delay has been satisfactorily explained by stating that the papers had been entrusted to an Advocate who had died and some time was taken by the Circle Officer of the Bank to trace out the record. The delay is hence condoned.
The application stands, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 10.12.2014 (Dr.[ENTITY],C.J.) RK ([ENTITY],J.)