WP(C) 8134/2002 BEFORE HON’BLE MR JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. The challenge made in this writ petition is the order dated 22.08.2001 ( Annexure -XIII) by which the petitioner has been imposed with the penalty of d ismissal from service pursuant to a departmental enquiry. The appeal against the said order was preferred by the petitioner on 05.10.2001 but the same having no t evoked any response, the petitioner filed the writ petition challenging the sa me. The petitioner has also challenged the enquiry proceeding including the char ge sheet and the enquiry report. 2. Briefly stated, the facts are as follows. 3. The petitioner while was serving as Officer in the respondent Bank i.e., United Bank of India in the Regional Office, Dibrugarh, was placed under suspen sion by order dated 14.08.1990 in contemplation of a departmental proceeding. T hereafter he was served with Annexure-II charge sheet dated 22.02.1992 under Reg ulation-6 of the United Bank of India Officer/ Employees (Disciplinary and Appea l) Regulations-1976. The charge sheet running to 9 pages comprised of the charge s of excess drawl, irregular sanction and disbursement of term loan accounts cau sing financial loss to the bank; irregularities in many loan accounts and allow ing excess drawl as indicated in the statement enclosed to the charge sheet ; al lowing fraudulent transaction in connivance with other officers of the bank ; sa nctioning of an amount of Rs. 70,000/- to the concerned borrower in gross violat ion of rules and procedure and without obtaining the required documents; issuanc e of bank’s cash certificate of Rs. 50,000/-, Rs. 45,000/- and Rs. 5,000/- under SB Accounts of the said person etc. 4. In support of the charges a detailed statement of allegations was also f urnished. 5. The petitioner without specifically dealing with the charges levelled a gainst him with supporting allegations on which the charges were based, submitte d his written statement of defence generally denying the charges without any spe cific denial of the same. For a ready reference the reply furnished by the petit ioner on 25.03.1992 is quoted below: To, The Zonal Manager & Disciplinary Authority United Bank of India Zonal Office, North Easter Zone GS Road, Opp. Bora Service Station Guwahati-781007 Dated 25th March , 1992 Dear Sir, Reg: Charg-sheet baring your letter No. ZO/PD/DIR/2284/91-92 dated the 22nd February’92 I am shocked and surprised to receive your aforesaid charge-sheet. The alleged c harges are wild, baseless, false and frivolous and do not correspond to the real facts and circumstances. I, therefore, unequivocally deny all the alleged charg es. Besides, the charge-stte is vague ad inapplicable in that it has not been mentio ned under which provisional of the ’CONDUCT’ Regulations I have been charged wit h. Secondly the Fist sentence of your aforesaid charge-sheet very clearly demons trates the closed mind in that a decision has already been taken to proceed agai nst me to impose a major penalty and the invitation to file a reply has been mad e as an empty formality only. In view of the foregoing, I would request you to kindly drop the proceedings so as to enable me to get away from the severe mental strain and social ignominy to which I have been unfortunately subjected to. Yours faithfully, Sd/- (Asok Kumar Dasgupta) Officer, United Bank of India Dibrugarh Regional Office, HS Road, Dibrugarh 6. The disciplinary authority being not satisfied with the reply so furnish ed, decided to conduct an enquiry into the charges and accordingly appointed the Enquiry Officer and Presenting Officer. After conducting the enquiry following the due procedure, the Enquiry Officer submitted his report. Be it stated here t hat on conclusion of the evidence etc. both the parties, i.e. the Disciplinary A uthority and the petitioner, submitted their written briefs in support of their respective cases. Thereafter the enquiry report dated 12.04.199 was forwarded t o the petitioner by which he was held guilty of the charges except some of the c omponents of the said charges in support of which he was not found guilty. In t he ’Reason for Findings’ and reasons in the report, the Enquiry Officer made the following observations: I have carefully gone through the evidences - oral and documentary - and applie d my mind. A conspectus of my assessment of evidences and findings with reason s therefore evidently indicate that Sh. Ashok Kumar Dasgupta, CSO failed to take steps in protect the interest of the Bank. He also failed to discharge his duti es with utmost integrity, honesty, devotion and diligence. The charge is therefo re proved and hence the CSO is guilty. 7. Towards making the aforesaid observations, the Enquiry Officer found tha t out of 35 components of the basic charges, all the components except 14 stood proved. 8. On receipt of the enquiry report, the Disciplinary Authority made Annexu re-XI communication dated 10.04.2004 to the petitioner giving his reasons for di sagreement in respect of the components which were held to have been not proved. By the said communication the petitioner was asked to make the written submissi on against the reasons for disagreement and so also against the findings recorde d in the enquiry report holding the charges to have been established. 9. On receipt of the said communication, the petitioner by his written stat ement dated 11.06.2000 (Annexure XII) projected his stand against the enquiry re port and the reasons for disagreement in respect of the aforementioned component s. 10. After the aforesaid developments the Disciplinary Authority in considera tion of the materials on record including the representation made by the petitio ner against the enquiry report and the reasons for disagreement recorded by the Disciplinary Authority, passed the impugned order dated 22.02.2008 (Annexure-XII I) imposing the penalty of dismissal from service. For a ready reference, the f indings recorded in the said order are reproduced below: 3. I have considered the charge sheet, your explanation thereto, proceedings of the enquiry and the oral and documentary evidences adduced and produced before the enquiry, the enquiry report and all other papers and documents connected wit h the said enquiry. I have also considered your written submission dated 14.06.2 000 on the enquiry report. After applying my mind independently on all the paper s and documents in connection with the aforesaid charge sheet and having gone th rough the report of the Enquiry Officer, I do agree with his findings except in respect of following charges:- (i) In respect of charge No. 1 as mentioned in the charge sheet, save and except the charges of (a) non-existence of borrowal units, and (b) engagement of borro wers in other gainful employment, in the Accounts of Kamakhya Das and Jnan Mukul Das, all charges are proved. Further, in the Account of Deepak Das, all charges except the charge of (a) non-submission of Discretionary Power, Statements, and (b) non-existence of the borrowal unit, have been proved. In the aforesaid acco unts, the Bank has suffered total financial loss to the extent of Rs. 1,62,113.3 4p. as on 24.04.1990 i.e. the date of your transfer from Dholla Branch. (ii) In respect of charge No. 2 as mentioned in the charge sheet, all charges ha ve been proved about the irregularities occurred in Cash Credit Accounts of diff erent parties. However, the charge of non-existence of borrowal units have not b een proved. The Bank has been exposed to financial loss of Rs. 6,12,053.74p. as on 24.04.1990 i.e., on the date of your transfer from Dholla Branch in regard to aforesaid accounts. (iii) In respect of charge No. 3 as mentioned in the charge sheet, several irr egularities in the Credit Account of Dholla Saw Mill, Temporary Grievance Accoun ts in the name of yourself, Shri Robin Chandra Borah, the then Manager and Shri Rabin Roy, Cash-cum-General Clerk of the said Branch, and Sundry Creditors Acco unt of different parties, were proved. However, I find that the charge of non-c alculation of drawing power due to non-submission of Stock Statement by Dholla S aw Mill in their Cash Credit Account has not been proved. Aslo, the charge of yo ur passing the voucher for Rs. 10,000.00 debiting unadjusted Sundry Creditors Ac count and crediting the loan accounts without any basis on 19.03.1990, has not b een proved. I also find that the charge of connivance with other employees of Dh olla Branch in the matter of passing fictitious voucher of Rs. 1,50,00.00 on 30. 04.1988 has not been proved. Finally, I have noted that the Bank has been expose d to financial loss of Rs. 1,60,298.27p. as on 30.04.1988 due to the misdeeds co mmitted by you. (iv) In respect of charge No. 4 as mentioned in the charge sheet, all charges ha ve been proved in the Account of Shri Barin Dutta. The Bank has suffered a finan cial loss of Rs. 1,40,775.35p. 4. From the facts and circumstances of the above case and the charges so proved at the enquiry, I find that you flagrantly violated Bank’s rules and procedures in the course of your duties during your tenure as Manager of Dholla Branch. Yo u acted with malafide intent and ignored to discharge your duties with honesty, integrity, devotion and diligence as is expected from a responsible officer of the Bank which ultimately resulted the Bank facing a huge financial loss. All co nsidered, therefore, it warrants imposition of the punishment of dismissal whic h shall ordinarily be disqualification for future employment as per Regulation 4(j) of United Bank of India Officer Employees (Discipline and Appeal) Regulatio ns, 1976. 5. Therefore, in exercise of powers conferred on me under regulation 7(3) o f United Bank of India Officer Employees (Discipline and Appeal) Regulations, 19 76, I hereby impose upon you that following punishment which shall come into wit h immediate effect. DISMISSAL WHICH SHALL ORDINARILY BE A DISQUALIFICATION FOR FUTURE EMPLOYMENT (Regulation 4(j) of United Bank of India Officer, Employees’ (Discipline and App eal) Regulations, 1976) 11. Being aggrieved by the aforesaid order of penalty, the petitioner prefe rred Annexure-XIV appeal dated 05.10.2001 to the Appellate Authority, but the sa me having not been yielded any result, he preferred the instant writ petition ch allenging the enquiry proceeding and the findings recorded therein and also the order of penalty. 12. In the counter affidavit filed by the respondents to which the petitione r has also filed reply the affidavit, the respondents have justified the impugn ed enquiry proceeding and the penalty imposed on the grounds of the petitioner b eing found guilty of the charges and loss of confidence on him. In the reply aff idavit, the petitioner has reiterated his stand made in the writ petition which is, if the reasons for disagreement against the findings recorded in the enquir y report are left aside, the petitioner could not have been imposed with the ext reme penalty of dismissal from service. 13. During the course of hearing Mr. SK Medhi, learned counsel for the petit ioner in his persuasive pursuits attacking the impugned order of penalty as wel l as the communication dated 10.04.2004 containing the reasons for disagreement in respect of the components of the charges which were held to have been not pr oved by the Enquiry Officer, submitted that the Disciplinary Authority having al ready disagreed with the findings of the Enquiry Officer in respect of those com ponents, the procedure adopted was wrong causing prejudice to the case of the pe titioner. He submitted that if the said components are left aside, for the othe r charges the petitioner could not have been imposed with the penalty of dismiss al from service and instead a lesser penalty would have been sufficient. Referr ing to the unblemished serviced career of the petitioner in the past, he strenuo usly argued that the same ought to have been a factor weighing the mind of the disciplinary authority, instead of mechanically passing the impugned order of di smissal from service. 14. In support of the aforesaid arguments, Mr. Medhi, learned counsel for th e petitioner has placed reliance on the following decisions: (i) (1975) 1 SCC 574 (L. Michael and anr. Vs. M/s. Johnson Pumps Ltd.) (ii) 2001 (2) GLT 227 (Probin Kumar Phukan vs. Union of India) (iii) Judgment and order dated 20.08.2003 passed in W.P.(C) No. 6991/2000 (Sus hanta Ch. Pal vs. UBI & ors.) affirmed in WA No. 524/2003 (UBI vs. Sushanta Ch. Pal) (iv) (1998) 7 SCC 84 (Punjab National Bank and ors. vs. Kunj Behari Mishra) (v) (1999) 7 SCC 739 (Yoginath D. Bagde vs. State of Maharastra and ors.) (vi) (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad and ors. vs. B. Karunakar & ors.) (vii) AIR 2003 SC 1377 (Kailash Nath Gupta vs. Enquiry Officer (R.K. RAI), Allahabad Bank and o rs.) 15. Countering the above argument, Mr. S. Dutta, learned counsel appearing f or the respondent Bank in his painstaking effort towards justifying the impugned action and the order submitted that the procedure adopted in the enquiry being in consonance with the basic principles of natural justice and the petitioner ha ving been afforded with all reasonable opportunities to defend his case in the d epartmental enquiry and in respect of disagreement to the enquiry report, the pe titioner cannot claim any leniency in the matter of punishment. 16. As regards the procedure followed in recording the reasons for disagree ment, Mr. Dutta, learned counsel representing the Bank submitted that the petiti oner having been afforded with all reasonable opportunities to make representati on against the reasons for disagreement in respect of those components which wer e held not to have been established in the enquiry, there was sufficient complia nce of the principles of natural justice. Finally he submitted that even leaving aside the said components, other components of the charges having been establis hed in the enquiry, on that score alone the petitioner was liable to be dealt wi th appropriately which in the instant case is dismissal from service. 17. In support of the aforesaid arguments advanced by Mr. Dutta, he has also placed reliance on certain decisions which are as follows: (i) (1997) 3 SCC 371 (Balbir Chand vs. FCI Ltd. and ors.) (ii) (2005) 6 SCC 321 (Canara Bank vs. V.K. Awasthy) (iii) (2003) 4 SCC 364 (Chairman and Managing Director, United Commercial Bank and ors. vs. P.C. Kakkar ) (iv) (2005) 10 SCC 84 (Damoh Panna Sagar Rural Regional Bank and anr. Vs. Munna Lal Jain) (v) (2005) 1 SCC 13 (Ganesh Santa Ram Sirur vs. State Bank of India and anr.) (vi) (2010) 2 SCC 59 (Union of India and ors. vs. M.K. Sarkar) (vii) (1995) 1 SCC 745 (Chandigarh Administration and anr. Vs. Jagjit Singh and anr.) (viii) 2004 (1) GLT 253 (Biren Borah vs. United Bank of India & ors.) (ix) (1996) 9 SCC 69 (Disciplinary Authority cum Regional Manager and ors. vs. Nikunja Bihari Patnaik ) (x) (1996) 3 SCC 750 (State of UP and ors. vs. Nand Kishore Shukla & anr.) 18. Before dealing with the case on the basis of the submissions made by the learned counsel for the parties and the materials available on record, it will be appropriate to mention at this stage the basic case of the petitioner, which is, although he might have committed certain irregularities in conducting the Ba nk’s transactions, but the same having not involved any financial irregularities coupled with the fact that a wrong procedure was adopted towards disagreement w ith the findings of the Enquiry Officer in respect of those components which wer e held not to have been established, the petitioner was not entitled to get hars h treatment by way of dismissal from service and instead ought to have been impo sed with a lesser penalty other than dismissal and/or removal from service. It i s in this context, learned counsel for the petitioner has placed reliance on the decisions referred to above. According to him, the procedure adopted towards re cording the reasons for disagreement was in the form of a concluded opinion befo re the petitioner was given the chance of making representation. 19. In Kunj Behari Mishra (supra), the Apex Court dealing with a similar sit uation in which the Disciplinary Authority disagreed with the favourable finding s recorded in the enquiry report held that the delinquent is required to afford with the opportunity of being heard against the reasons for disagreement. In the said decision it was held that when the enquiry report is in favour of the deli nquent officer, but the Disciplinary Authority proposes to differ with the such conclusions, then that authority must give him an opportunity of being heard, fo r otherwise he would be condemned unheard. As in the case of enquiry report hold ing the delinquent guilty of charge(s) which is required to be furnished to the delinquent to make representation against the same, in case of disagreement agai nst favaourable findings in the enquiry report also the delinquent is required t o be heard on disagreement. 20. In Yoginath D. Badge (supra) also the Apex Court referring to the afores aid decision in Kunj Behari Mishra (supra) reiterated the same principle with th e following observation: 28. In view of the provisions contained in the statutory rule extracted abov e, it is open to the disciplinary authority either to agree with the findings re corded by the enquiring authority or disagree with those findings. If it is does not agree with the findings of the enquiring authority, it may record its own f indings. Where the enquiring authority has found the delinquent officer guilty o f the charges framed against him and the disciplinary authority agrees with thos e findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and recor ds a finding that the charges were not established, there would arise no difficu lty. Difficulties have arisen in all those cases in which the enquiring authorit y has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary author ity disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This dif ficulty relates to the question of giving an opportunity of hearing to the delin quent officer at that stage. Such an opportunity may either be provided specific ally by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportun ity of hearing to the delinquent officer and records findings different from tho se of the enquiring authority that the charges were established, an opportunity of hearing may have to be read into the rule by which the procedure for deali ng with the enquiring authority’s report is provided principally because it woul d be contrary to the principles of natural justice if a delinquent officer, who has already been held to be not guilty by the enquiring authority, is found g uilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of not guilty has already been recor ded. 21. In the instant case, the petitioner was given the opportunity to make re presentation both against the enquiry report and the reasons for disagreement by the aforementioned communication dated 10.04.2000 (Annexure XI) by which the pe titioner was advised to submit his written statement in respect of the disagreem ent as well as the findings recorded in the enquiry report. Thus, it cannot be s aid that the petitioner was condemned unheard in respect of those components of the charges which were held not to have been proved, but the Disciplinary Author ity disagreed with the same for the reasons recorded in the said communication. The petitioner was given opportunity to persuade the Disciplinary Authority to t ake a different view of the matter in respect of the findings recorded in the en quiry report as well as the reasons for disagreement. Thus, there was substantia l compliance of the procedural requirement of furnishing the reasons for disagre ement before imposing the penalty enabling the petitioner to make written repres entation against the same. Thus, the proposition of law as envisaged in B. Karun akar (supra), was substantially complied with and there was no violation of the principal of natural justice. 22. The decisions in Kailash Nath Gupta; Probin Kumar Phukan and Sushanta Ch . Pal (supra) have been pressed in to service to substantiate the argument that since the Bank was not exposed to any financial loss and there was mere irregula rity in business transactions conducted by the petitioner, the extreme penalty o f dismissal from service was not warranted. Needless to say that ratio of any de cision must be understood in the background of the facts of that case. It has be en said long time ago that a case is only an authority for what it actually deci des and not what logically follows from it. (see Lord Holsbury in quinn v. Leath em, 1901 AC 495). 23. In Kailash Nath Gupta (supra), the Apex court dealing with an industrial dispute and proposition of punishment, while reiterating that the power of inte rference with the quantum of punishment is extremely limited, but having found that a small amount was found irrecoverable for which the petitioner was held gu ilty, held that the punishment of removal from service required reconsideration of the High Court considering the relevant aspects. Similarly, in Probin Kumar P hukan (supra) dealing with the quantum of punishment imposed on the petitioner, the Court interfered with the penalty of removal from service and instead substi tuted the same by reduction to a lower grade or post or to a lower stage in the time scale of pay. Such a course of action was adopted when it was found that th e penalty imposed was discriminatory compared to the penalty imposed to another employee. While doing so, the Court also took note of the charges said to have b een established in the enquiry. Similar view was taken in Sushanta Ch. Pal (supr a) in which it was found that the charges brought against the delinquent were n ot in respect of the transactions affecting any interest of the customers of the Bank. In the said case, the charge of misappropriation of a scooter advance and unauthorisedly obtaining the loan amount as well as the advance were personal to the petitioner. Having regard to those facts and the decisions on which the l earned counsel for the Bank placed reliance where the Apex court had disapproved with the interference made by the High Court with the quantum of punishment imp osed in cases where the charges proved arose out of the acts committed by the Ba nk officers with regard to transactions affecting third party, it was held that the punishment of compulsory retirement was excessive and accordingly the matter was remitted back to the Disciplinary Authority for reconsideration. 24. The decision in L. Michael (supra) has been pressed in to service to em phasize that the writ court is not powerless to interfere with the findings of f act if the same is not based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly unjust that no reasonab le person would judicially arrive at that conclusion. 25. Unlike the aforesaid decisions, in the instant case the transactions in respect of which the petitioner had been charged, are all third party transactio ns exposing the Bank to financial loss. As to what are the charges, have