LPA No. 248 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 248 of 2010 (O&M) Date of decision 4 .4.2011 Bhupinder Singh Bains ... Appellant Versus Punjab and Sind Bank and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. K.S.Bassi,Advocate for the appellant Mr. J.S.Sathi, Advocate for the respondents 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The instant appeal filed under Clause X of the Letters Patent is directed against judgement dated 15.5.2009 rendered by the learned Single Judge upholding the order dated 8.11.2008 passed by the General Manager (P) of the respondent bank whereby penalty of dismissal awarded to the appellant by the disciplinary authority has been substituted with the penalty of compulsory retirement in terms of Clause 4 (h) of the Punjab and Sind Bank Officer Employees (Discipline and Appeal) Regulations, 1981 (for brevity 'the Regulations'). Brief facts of the case which have lead to the filing of the instant appeal are that the appellant was working as Manager Scale III in the Punjab and Sind Bank at its branch, 22 No. Phatak, Patiala. He claims to have rendered meritorious service. A complaint was filed against one Shri Surinder Singh Tiwana, Scale 1 Officer, working alongwith the appellant at the same branch with the allegation that he committed fraud by preparing LPA No. 248 of 2010 (O&M) 2 fictitious FDRs and then obtaining loans against the same. Some of the FDRs were encashed at Bhawanigarh Branch of the Bank. The name of the appellant was also mentioned with the allegation that he connived with aforesaid Surinder Singh Tiwana. After holding an enquiry, Shri Surinder Singh Tiwana was dismissed from service, as has been stated by the counsel for the bank. A separate enquiry was held against the appellant for acts of omission and commission committed by him during his tenure as Manager at No. 22 Phatak, Patiala from 27.7.2003 to 27.4.2006. As many as 22 charges were framed against him. The Chief Manager, Zonal Officer Patiala, who was appointed as Enquiry Officer completed the enquiry in 29 hearings and then submitted his report dated 16.11.2007. The Enquiry Officer found that most of the charges were proved. During the course of enquiry the appellant has been afforded every opportunity consistent with the principles of natural justice and fair play. Thereafter, a show cause notice was issued to him alongwith a copy of the enquiry report and the appellant filed his reply. The Disciplinary Authority after considering the enquiry report, reply and after affording opportunity of hearing in terms of clause 4(j) of the Regulations inflicted upon the appellant the punishment of dismissal from service (P.3). The punishing authority concluded that the enquiry was conducted as per the provisions of the Regulations and the Enquiry Officer has observed all canons of justice and equity. The punishing authority then proceeded to appreciate evidence on each and every charge. Apart from the findings on other charges which were admitted and proved the findings of the disciplinary authority was that on 12 occasions fake FDR accounts were opened which were already paid and the same were reused. On 8 occasions fraudulent LABD accounts were LPA No. 248 of 2010 (O&M) 3 raised against the security of FDRs out of all the FDRS to which reference has been made in the enquiry report. While four FDRs were encashed as such. In two accounts adjusted LABD were kept running fraudulently. It was also found that the appellant extended undue advantage of finance to staff members on 93 occasions through fake LBP/OBP/FOBP where atleast in 40 cases there were no instructions of purchase and another 45 cases were not realized through normal banking channels i.e. clearing. Eventually the conclusion recorded by the Disciplinary authority is that he concurred with the findings of the Enquiry Officer in respect of all the findings recorded against the appellant which stood proved and the appellant was held guilty of violating the Regulations 3(1)( and 3(3) read with Regulation 24 of the Regulations. It was further found that the appellant exceeded his delegated authority, mis-used his official position and power. He had also concealed/ mis-represented the facts from the controlling authority and did not comply with the instructions of the higher authorities. He was found to have acted otherwise then in his best judgement and acted in connivance with Shri Surinder Singh Tiwana, Lovlesh Kumar, Special Assistant, Sh. Satinder Singh, CTO and Hans Raj, Gunman, in furtherance of his own and their interests in violation of the banking norms in a deceitful manner so as to put the bank in pecuniary obligation and loss of its revenue; and he also failed to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence . Against the order dated 16.2.2008, review petition was filed by the appellant before the General Manager who is the reviewing authority. His review petition was partly accepted and vide order dated 8.11.2008 (P.1), order of dismissal from service was substituted by the order of LPA No. 248 of 2010 (O&M) 4 compulsory retirement. The finding of the Reviewing Authority is discernible from the following para of the order, which reads thus: “ I observe that the allegations levelled against the petitioner were proved during the inquiry. He has rightly been held guilty of violation of bank norms and exposing the bank to pecuniary obligation and loss. There has been flagrant violation of rules of business and definite failure on the part of the petitioner to adhere to laid down guidelines and take usual precautions, which eventually led to fraud. Had he adhered to prescribed guidelines and remained vigilant, the fraud could have been averted. The proven misconduct does not permit the Bank to retain such officers in service. Although the petitioner had exhibited gross negligence and his acts of omission and commission reflect breach of equitable duty, yet record reveals that he was not directly involved in the fraud. It is also fact that the officer involved in the fraud, when posted to other branch again committed fraud. Considering this a case of gross negligence but having no apparent involvement in perpetrating wrong to the bank. I feel inclined to give some relief to the petitioner by way of modifying the penalty from Dismissal to Compulsory Retirement. I, therefore, modify the penalty of Dismissal awarded by Disciplinary Authority to penalty of 'Compulsory Retirement' in terms of clause 4(h) of Punjab and Sind Officer Employees (D&A) Regulations, 1981.” The learned Single Judge upheld the aforesaid order holding that the LPA No. 248 of 2010 (O&M) 5 allegations of omission and commission levelled against the appellant alongwith various irregularities committed by him were proved. Even the Reviewing Authority has found him guilty of violation of banking norms and exposing the bank to pecuniary obligation and loss. Had the appellant adhered to prescribed guide-lines, the fraud could have been averted. The Reviewing Authority has already taken a lenient view by converting the order of dismissal into the penalty of compulsory retirement. Moreover, the appellant had already attained the age of 57 years at the time of passing the order. Mr. K.S.Bassi, learned counsel for the appellant, has made an attempt to argue that there is no evidence to sustain the charges which are said to be proved against the appellant. According to the learned counsel there is no evidence to conclude that the charges have been proved and he shifted the whole blame on Surinder Singh Tiwana. On the other hand, Shri J.S.Sathi, learned counsel for the respondent- bank has pointed out that there is ample evidence which prove gross negligence and connivance on the part of the appellant. According to Mr. Sathi had the appellant followed the banking norms and procedure, no fraud could have been played by any other officer of the Bank. He has maintained that Shri Surinder Singh Tiwana has already been dismissed from service and even others have faced severe penalty. Mr. Sathi had maintained that the appellant has already been shown leniency in as much as in stead of dismissal he has been compulsorily retired from service by the Reviewing Authority. Having heard the learned counsel for the parties, we are of the considered view that the Courts are not to act as appellate authority by re- LPA No. 248 of 2010 (O&M) 6 appreciating evidence to reach a conclusion other than the one reached by the enquiry officer and disciplinary authority. It is one thing to say that the charges have not been proved as there is no evidence and it would be quite another thing that the evidence is inadequate. From the perusal of the report of the Enquiry Officer it cannot be concluded that it is a case of no evidence. It is well settled proposition of law that findings recorded by the Enquiry Officer could be set aside if the findings are based on no evidence whatsoever. The other reason could be that the evidence on record is such that no reasonable man would record a finding which has been recorded by the Enquiry Officer See Union of India v. HC Goel AIR 1954 SC 364 (Pages 369 and 370). It is equally well settled that the findings recorded by the Enquiry Officer and Disciplinary Authority cannot be reversed by the Courts in exercise of power of judicial review by re-appreciating evidence and to arrive at a conclusion of its own on the sufficiency of the evidence or on the correctness of the conclusion which is based on such evidence. In that regard reliance may be placed on the judgements of Hon'ble the Supreme Court rendered in the cases of Commissioner and Secretary to Government v. C.Shanmugam (1998)2 SCC 394 and B.C. Chaturvedi v. UOI 91995) 6 SCC 749 wherein it has been held that the Courts are not to act as an appellate forum for over turning the findings recorded by the Enquiry Officer and Disciplinary Authority merely because another view is possible. Therefore, we are not inclined to enter into the arena of re- appreciation of evidence. We record our satisfaction to hold that the findings given by the Enquiry Officer as affirmed by the Disciplinary Authority are based on evidence and those findings cannot be set aside as it would be against the settled principles of law. LPA No. 248 of 2010 (O&M) 7 We are in agreement with the views expressed by the learned Single Judge that the respondents have already shown leniency to the appellant by converting the order of dismissal to that of compulsory retirement. There is no complaint made on behalf of the appellant that any lapse has been committed during the course of holding of enquiry or the principles of natural justice have been violated or any other regulation is violated in such a manner that it has caused prejudice to the interest of the appellant. Therefore, we are not inclined to admit the appeal which is liable to be dismissed. As a sequel to the above discussion, this appeal fails and the same is dismissed. (M.M.Kumar) Judge (T.P.S. Mann) 4 .4.2011 Judge okg