HIGH COURT OF JUDICATURE OF CHHAmSGARH AT BILASPUR WritPetition No.2017 of 1998 PETCTIONER: RESPONDENTS: Rajendra Kumar Shrivastcsva, Aged qbout 54 years, Son of Late Shri L.L. Shrivastava R/o Opposite 'C'-l, Krantinagor, &istt. Bilaspur (C.6.) Versus 1. 2. 3. Chief fieneral Mancger, State Bank of India, Local l-1eod Office, Hoshangobad Road, Bhopal. Sener'al Mancger (&NPB), State Bank of India, Locat Head Office, Hoshangabad Road, Bhopal. t>eputy ©eneralMana9er, State Bank of India, Zonal Office, Shankar Nagar, Raipur. 1£ :1 1« ^s ^^ .4^P # POST FOR ORDBRS ON U -^- SEPTJEiKBfiR. 2003 \K$ Sd7, L.C. Bhadoo Judge •1.5(-_ .tol ~1—-^-F HI6H COURT QF JUMCATURE OF CHHATTtS6ARH AT BILASPUR ^ WrjtPetition No.2017 of 1998 PETCTIONER: RESPONDENT5: Present;- Shri Rohit Arya, Sr. Advocate with Shri R.R. Sinho, Advocate Rqjendra Kumar Shrivastasva, Aged obout 54 years, Son of Late Shri L.L.Shrivastava R/o Opposite 'C'-l, Krantinagar", Oistt. Bilaspur (C.6.) Versus 1. 2. 3. Chief Seneral Managep, State Bank of India, Local Head Office, Hoshan9abad Road, Bhopal. Seneral Manager (DNPB), State Bankof India,Local Head Office, HoshangaboKl Road, Bhopal. Deputy Seneral Manager, State Bank of India, Zonal Office, Shankar N0901', Raipur. For the petitioner Shri P. Diwakar with Miss Pritha fihoisal, lAdvocates For the responden+s. Before: Honble Shri Justice L.C. Bhadoo OR DER (Passed on l^ ^ September, 2003) By this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has questioned the le9ality, validity and propriety of the impugned order- of dismissal dated 13-5-97 received by the petitioner on 25-5-97 and the appellate order dated 5-11-97 received on 19-11-97. Facts leading to filing of this writ petition are that the petitioner joined State Bank of India as Clerkon 10-10-67 through competitive/ ^K'.l&.^av.'i:;;.^^;' ^fsS;^:!.;sf!3i--^ ^;ie?fc&;ffi^Miu;ai \a ~~t, 5. 6. 7. examination thereofter' in the year 1976 he was promoted as Officer Junior A<lana9ement and as AAM6S-II in August 1988. The petitioner was posted as Branch Manager of Janjgir branch from 15-12-88 to 31-5-90, durin9 this period for committin9 certain irregularities in sanction, disbursement and follow up of advances, the petitioner was served with a charge sheet (Annexure-P/2) dated 3-1-1994 received on 14-1-1994. The char9es were mainly classified as 11 in number but in the statement of allegations in all such irregularities were mentioned as 41. The petitioner submitted a detailed reply to the charge sheet on 11-3-1994. The disciplinary authority decided to hold the disdplinary proceedin9S against the petitioner In terms of Rule 68 (l)(i) of the State Bank of India (Supervisory Staff) Service Rules (hereinafter referred to as 'the Rules'). The enquiry was conducted by the Enquiry Offjcer and the same was completed on 17-10-95 and after completing the enquiry, the Enquiry Officer submitted his finding that all the char9es were proved cgainst the petitioner. The petitioner made a detailed representation cgainst the findin93 of the Enquiry Officer on 30-9-96, but the disciplinary/appointing authority ogreed with the findings of the Enquiry Officer and ultimately imposed'the pennlty of dismissal from service on 13-5-1997 (Annexure-P/7) against which the petitioner preferred an appeal before the Appellate Authority i.e. The Chief Seneral Manager. The Appellate Authority dlso dismissed the appeal vide order dated 20-10- 97 communicated to the petitioner vide order dated 5-11-97. Return has been filed on beholf of the respondents. I have heard the learned counsel for the parties. Main thrust of the learned counsel for the petitioner is basically on the following grounds:- (i) that enquiry authority did not supply the documents demanded by the petitioner and the documents were taken on record by the Enquiry Officer at a very lute stcge inpiece-meal; (ii) no witness u»asexamined by the t)epartment. The Enquiry Officer^ had not followed the procedure as envisa9ed in the Rules 68 (2) (x) (a) and the Enquiry Officer had not examined the petitioner as per the provisions of Rule 68 (2) (xvii) of the Rules. •Ji •^ -.-*- 8. Shri Arya, learned counsel for the petitioner advanced his ar9uments mainly on the above ppints and while referring the report of the Enquiry Officer, he had drawn the attention of the Court towards relevant portions of the report in i«hichit has been nientioned that the documents were demanded by the petitioner but those documents were not supplied to the petitioner. 9. On the other hand, Shri Diwakar argued that whatever necessary documents asked by the petitioner were supplied to him. Enquiry was conducted in his presence. All the opportunities were 9iven to the petitioner to make his representation and principles of naturai justice as well as rules for conducting the enquiry were followed by the Enquiry Officer, therefore, no irregularity was committed by the Enquiry Officer and the power of the judicial review under the writ jurisdiction of this Court is very limited. The Court cannot look into the merits and scrutinize the evidence, by evaluatin9 the evidence this Court cannot replace its own finding in place of the findin9 of the Enquiry Officer and this Court cannot re-appreciate the evidence and record its findin9 as Appellate Court. 10. The law laid down by the Hon'ble Apex Court regarding exercise of powers of judicial review by the Hi9h Court under the writ jurisdiction has been laid down in the caseof B.C. Cha'hirvedi Vs. Union of India and others reported in (1995) 6 SCC 749 it has been held that the High Court while exercising judicial review cannot take his decision as a .-'" ^' Court of appeal but certainly can review 1-he manner in which the decision was made. The scope ofjudicial revieHf is meant to ensure that the individual recelves 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 is concerned to determine whether the inquiry was held by o competent officer or whether rules of natural justice are eomplied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with / 1 11 11. the power to hold inquiry hos jurisdiction, power and authorjty to reach a findin9 of fact or conclusion. But the finding must bebased on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedin9. Adequacy of evidence or reliability of evidence cannot be permitted to be canvossed before the Court. When the authority accepts the evidence and the conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. The court in its power of judicial review does not act as appellate authority to re-appreciate' the evidence and to^arrive at its own independent findings on the evidence. The Court may interfere where the authority held the proceedings cgainst the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory r-ules presci*ibin9 the inode of inquiry or where the conclusion or finding reoched by the disciplinary authority is based on no evidence. If the cQnclusion or findin9 be such as no reasonable person would have ever reached, the Court mcy interfere with the conclusion or the finding. In the matter of State of Raijasthan Vs. B.K. Meena and othere, reported in JT 1996 (8) SC 684 Hon'bte Apex Court has held that in case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application Preponderance of probabillties and some moterials on record are necessary to arrive at the conchjsion whether or not the delinquent has committed misconduct." Hon'ble Apex Court cgain in the matter of Lalit Popli Vs. Canorn Bank & Others reported inJT2003 (5) SC 494 has held thort "While exercising jur-isdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limitsof judicial review tocorrect errors of law or procedural errors leading to manifest injustice or violation of principles of naturaljustice. Judicial review is not okin t< adjudication of the case on merits as an appellate authority". ^^ ..<- x v 12. In the matter of B.C. Chaturvedi (Supra) Hon'ble Apex Court has held thot the scope of judicial review by the Court is of decision making process and where the findings of the disciplinary authority is based on some evidence the Court or Tribunol cannot re-appreciate the evidence or substitute its own finding. Again in the matter of R.S. Saini Vs. State of Pinyab and others reported in JT 1999 (6) SC 507 in paragraph 16 it has been held that "Before adverting to the first contention appellant regarding wantof mctterial to establish the chorge, and of non-application of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction wili not reverse a findingof the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of ttie inquirin9 authority, it is not the function of thecourt to review the evidence and to arrive at its own independent finding. The inquirin9 authority is the sole judge of the fact so lon9 as there is some le9al evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedin9S." 13. Now, comin9 to the question of forwarding of documents as per the Rule68 (2) (v) is concerned, a list of documents by which and list of witnesses by whom the articles of charge are propo?ed to be substdntiated as per the clause-vi are required to be forwarded by the discjplinary authority to the Enquiry Officer along with other documents. A note has been appended to this rule that the forwardin9 of the documents refer-red to in this clausp need not necessarily be done simultaneously. Therefore, the relevant document, as per this note, can be produced at the time of the enquiry and moreover, in this case documents which uuere produced by the presenting officer before the Enquiry Officer pertains to bank recordand these documents were submitted in the presence of the petitioner and os per the defence copies of all the 66 documents weregiven to the petitioner. The petitioner had opportunity to examine those documents and it is not the case of the petitioner that the copy of each and every documents which were asked by him were not supplied to him. Therefore, I am o-j ^i -••li-. ^ i^- ^ The view that not sending the documents to the Enquiry Officer at the initial stage and subniitting the documents durin9 the enquiry has not in ony manner prejudiced the right of the petitioner. 14. A perusal of the report of the Enquiry Officer shows that at pcge 19 of the report, while deatin9 with alle9<ition No.3, in para-3 of the finding portion the Enquiry Officer has mentioned that the petitioner demanded copy of the equitable mor'tgage created in respect of AA/s Hotel Madhar, but he has not further pursued on this and has olso not mentioned about this specifically. Similarly, thepetitioner asked for the office copy of the control return, but the Enquiry Officer recorded the finding that "I am not convinced with the statement of the defence that the control return was submitted for all the three loans sanctioned by him." Similarly, at.pcge-SY, the Enquiry Officer has mentioned that the petitioner- states thcrf the stock stotements were obtained and has demanded copies thereof. But, later on it was recorded that he has not pursued it further and provided evidence nor has he said thot the same was not provided to him and the Enquiry Officer has specifically mentioned that the petitioner has not stated that the copy of the same was not provided to him. At page-42, the Enquiry Officer has also mentioned that the charge sheeted officer demanded copies of the control return, but he has not pursued it nor has he mentioned about this in his brief and the prosecution has stated that no control return wos found in the documents. At page-43, it has been mentioned that the petitioner has ar9ued that a letter No. MIS 91/3 dated 10-1-91 wos sent to the Executive Engineer, CAQA. He has demanded copy of the letter, but he did not pursue this ond also aliowed the limit to be utilized beyond 4 months. 15. At page-49, white dealing with allegation No.8 it has been mentioned that the char9e sheeted officer asked for the control return No.89/4. He demanded copy of the return but has not pursued it further. Therefore, in view of the above findings of the Enquiry Officer the petitioner either orally asked for the copies at the fag-end of the enquiry and he had not pursued further and moreover, in 2-3 cases .-. control. return was not submitted. It hos not been ar9ued thotthe petitioner moved an application at an early stage askin9 for the copies (i^. of the documents and those documents were not supplied to him. Moreover, the Enquiry Officer has recorded that the charge-sheeted officer has stated that no written request was given and it was only oral request. The defence counsel requested for providing copies of the documents, since the ar9uments of the Enquiry Officer were concluded, the Enquiry Offjcer would submit his brief. Therefore, findin9S of the Enquiry Officer that no written request was made by the petitioner for documents and that too he asked for the documents at the time when arguments ond enquiries were concluded. 16. Therefore, in view of the above, it cannot be held that the Enquiry Officer was negligent in any way by not providing the copies of the documents to the petitioner nor he has specifically raised any point that he made a written request and how his right has been prejudiced by not providing these documents. The Enquiry Officer has specifically dealt with the request while recording the findings oneach and every chapge and all the relevant documents concerning those charges were produced in the evidence and it has not come on record that the copies of those documents were not furnished to the petitioner. In view of the above, I do not find any substance in the submission of the learned counsel for the petitioner that the ri9ht of the petitioner \s prejudiced on account of non-supply of the documents or the Department deliberotely did not supply the copies. 17. As far as the question of non-examination of the witnesses is concerned, it is true that no witness has been examined by the Department in this case. The Enquiry Officer has recorded his findin9S after scrutiny of Bank recor-d and his findings ar-e based on bank record. The learned counsel for the petitioner submitted that the relevant witness was Field Officer, S.C. Mukherjee, MM-II and he has not been examined, but 5.C. Mukherjee was himself chcvge sheeted on the 9round of these irregularities. The enquiry was conducted a9ainst him and he was also punished, therefore, there was no useof examinin9 him as he himself was involved in the misdeeds so what kind of evidence could have been 9iven by him. If at all he was relevant person then the petitioner could have examined in his defence. ..--,'*' •^ 18. As far as the ar9ument of the learned counsel for the petitioner that the documents are not proved by any witness, therefore, the documents produced in enquiry cannot be considered as proved. In this connection, if we look into the provisions of Bonkers' Books Evidence Act 1891, in Section-4, it has been prescribed that:- Subject to the provisions of this Act. a certified copy of any enlry in a bankers book sholl in all \e/ga\ proceedings be received as prima facie evidence of the A^^ existence of such entry, and shall be admitted as evidence of the matters, transactions ond accounts therein recorded in every case where, ond to the same extent as, the original enlry itself is now by law admissible," ~-^A Therefore, in view of thisprovision, the entries of the dccount books of the bank are prima facie evidence and not required to be proved by the oral evidence. Therefore, I do not find any substance in the argument of the learned counsel for the petitioner. ^ 19. Moreover, as per the law laid down by the Hon'ble Apex Court that technical rules of Evidence Act does not apply in the enquiries, even rule of adequacy of evidence or reliability of evidence connot be permitted to be canvassed and where authority accepts the evidence and conclusion receives support from them, the disciplinary authority is entitled to hold the delinquent guilty when the findings ore based on some evidence. Court cannot re-appreciate or interfere. This is not a matter of no evidence. Apart from that the petitioner- himself has admitted in his reply to the charge sheet that some irre9ularities were committed by him. Therefore,there is no substance in the arguments of learned counsel for the petitioner. 20. Now, coming to the question of the non-examination of the petitioner as per the provisions of clause-(xvii) of subrule-2 of the Rule 68 is concerned, this rule envisaged that "The Inquiring Authority may, after the officer closes his evidence 'a^>>y cy^'-^ /^ \^. 21. and shall if the officer has not got himself examined, generally question him on the circumstances appearin9 against him in the evidence for the purpose of enabling the officer to explain any circumstancesappearing in the evidence ogainst him." If we look into this provision, in the first instance it is not mandatory for the Enquiry Officer to examine delinquent in all cases. It is the discretion of the Enquiry Officer, in the facts ond circumstances of the case, if he feels necessary then he may examine. Moreover, the petitjoner was himself present durin9 whole enquiry, he argued the matter himself which \s cleor from the report of the Enquiry Officer. The arguments raised by the petitioner were considered and dealt with in the Enquiry Report. Moreover, in reply to the char9es and statement of alle9ations, the petitioner had filed a detailed reply, therefore, jn the circumstances, I do not find any irre9ularity in the enquiry by non-examining the petitioner under this provision by the Enquiry Officer. Moreover, no witness was examined by the department. Whole case wos based on documents and about that the petitioner had already submitted his reply to charge sheet. Now, if we look into the report of the Enquiry Officer, Annexure-R/3, the Enquiry Officer after 9ivin9 opportunity to the Department and the petitioner and perusal of the documents produced by the Department has recorded his findin9S and reached to the conclusion that the charges stand proved against the petitioner. In the finding of chorge No.l, after evaluatin9 everything and arguments advanced by the petitioner, the Enquiry Officer recorded finding that as a prudent officer before disbursement of additional limit he must have per-used all the papers and the point of chan9e in the guarantor must have been in his knouiledge. Overlooking to this aspect without proper reason as Branch AAanager leads to the conclusion that the char9e sheeted person has changed the -guarantor deliberately against the tepms originally stipuloted in the sanctioned letter. Similn-ly, on the alle9ation '•^-,. r 10 ^ / ^ No.2 also the Enquiry Officer reached to the conclusion that the some \s proved that the petitioner sanctioned the loan for hi9her amount. He sancfioned additional terrn loan to the borrower under the same category despite the fact that the hi9her- authority sanctions the existing term loan to the borrower. 22. Simitarly, allegation cgainst the petitioner is that he sanctioned the term loan without prior approval of the higher authorities. The petitioner- sanctioned Rs. 1 lakh extra beyond his powers to Hanuman Enterprises, Calcutta towards the payment of loan thereby he extended the finance to the unit beyond stipulated limit. Similorly, as per the charge No.5 in spite of the unit default in payment of^tipulated installments the petitioner made no efforts for recovery of the installments/loans and the term loan account was held irregular. Similarly, the petitioner sanctioned the additional loan of Rs.l,20,CXX)/- controry to the delegations of financial powers and contravents the rules 51 and 54 of the 5+ate Bank of India under the charge No.5. The petitioner sanctioned a medium Term Loan of Rs. 2 lakh to M/s Hotel Madhav and again sanctioned 'additional loans of Rs. 1.00 lacs and Rs. 50,000/- to the unit beyond discretionary powers vested in the petitioner. Similarly in other charges also financial irre9ular-ities were committed by the petitioner and the Enquiry Officer's findin9s and conclusions on each and every charge are based on documentary evidence ond as per the charge No.ll the petitioner pbtained a payment of o cheque for Rs. 3,000/- drawn on his current Account No. 1436 at JanJ9i'' Branchiwrnireas the amount in hiscurrent account was Rs. 1397/95. Therefore, the findings of the enquiry officer is based on the documentary evidence and records and no procedural irregularity has been committed by the Enquiry Officer and principle of natural justice was also not violated by the Enquiry Officer, therefore, as per the law laid down by the Hon'ble Apex Court in the above cited jud9ments, jf we 11 1 ^ e f % look into the findin9 and conclusion of the disciplinary authority which has been confirmed by the appellate nuthority, they have not violated any principle of natural justice and the finding of the disciplinary authority is based on the documentary evidence, therefore, on this count no mterference is required by this Court. 23. A perusal of the decision of the appellate authority shows that the appellate authority while passing the order Annexure-P/10 has recorded thot while rendering the decision, the appellate authority considered the dnorges, statement of alle9ations and finding of the disciplinary authority and also considered the memo of oppeol and reached to the conclusion that there is no significant point of merit in the appeal and the punishment inflicted is commensurote with the misconduct, therefore, the appellate authority also considered each and every aspect and confirmed the finding of the Enquiry Officer and the order of appointing authority. 24. Now, comin9 to the question of quantum of punishment, the learned counsel for the petitioner or9ued that no loss hqs occurred to the bank nor it has been proved that the petitioner has committed these irregularities with an ulterior motive or for any personal gain. The business of the bank was increased and the deposits were also increased by Rs. 1 crores, ot Janjgir branch ond the char9es against the petitioner were framed regarding irre9ularities in sanction, disbursement follow up of advances and out of 17 accounts, 14 accounts were liquidated by recoveries and one account was ultimatety settled in the Lok Adalat and under the charge No.IO, the principal amount has been recovered and only the interest part is outstandin9. On account of operations by the petitioner the bank received Rs. 9 lacs as interest. He further argued that field officer Mr. S.C. Mukherjee was also charge sheeted under the same ir're9ularities and he was tet off after awarding much lesser punishment then the petitioner. Therefone, the penalty of dismissal is harsh, vindictive and the '^••^- 12 ^ --^i. t ^» same is disproportionate to the alle9ed misconduct of the petitioner which shocks the conscious of a prudent man. As such the same is liable to be set-aside. Shri Arya, counselfor the petitioner placed reliance on decisions reported in Alft 2003 SUPREME COURT 1377 and 1989 Lobour and Industrial Coses 1471 and 1988 Labour Law Joumal Kerala 105. 25. On the other hand, Shri Diwakar ar9ued that the petitioner bein9 a senior officer of the bank, he was dealing with the financial matters and heavy duty was on