Case: UNITED BANK OF INDIA Vs. BISWANATH BHATTACHARJEE

2. The employee was initially appointed as a cashier-cum-clerk by the bank, on 18.01.1971. Later, he was promoted to Junior Management Officer Grade Scale-1. He served as branch manager of the banks Chandabila branch from 14.12.1988 to 30.05.1990. Disciplinary proceedings were initiated against him when a charge sheet on 23.10.1997 alleging his complicity in five major charges (stated in paragraph 15 below) was issued by the bank. The charge sheet was issued seven years after he was transferred from the Chandabila branch. During this time several audits were conducted in terms of the norms stipulated by the Reserve Bank of India.3. The allegations against the employee pertained to the period when he was posted as Manager in the said Chandabila branch. The charge sheet alleged that he disbursed loan in favour of twelve fictitious persons in connection with the Integrated Rural Development Project (hereafter called IRDP) introduced by the Central Government. The loan had two components wherein 50% i.e., Rs. 5,000/- was repayable term and the remaining 50% i.e., Rs. 5,000/- was subsidy. In terms of the scheme, 93 applications were received which were to be examined and the applicants identified on the basis of joint inspection by the bank and the Gram Panchayat concerned. Once the identified applications were forwarded to the District Rural Development Agency (hereafter called DRDA) the latter had to submit the subsidy amount. The bank alleged that the applications were forwarded to DRDA which in turn released Rs. 4,68,833/- towards subsidy. However, the banks subsidy register reflected only Rs. 4,08,833/-, and did not reflect the remainder of Rs. 60,000/- along with the names of the twelve beneficiaries who purportedly received the said amount. The bank also alleged that the loan register showed that the loan and the subsidy was given to twelve beneficiaries against SSI account nos. 45/90 - 56/90. The employee / respondent denied the allegations. Other charges were that the employee, in connivance with another employee, deliberately ensured that the relevant papers were missing; more seriously it was alleged that the amount of Rs. 60,000/- forming the subsidy component, (of the total Rs. 1,20,000/- disbursed to the beneficiaries) was misappropriated. The employee denied these allegations. The bank proceeded to conduct an enquiry.4. The enquiry officer submitted his report on 05.05.2001. The report, inter alia, held that Sri Haradhan Bera, Pradhan of Chandabila Gram Panchyat, identified those persons claiming to be beneficiaries, in the enquiry. The enquiry officer relied on the evidence of seven beneficiaries, who deposed that no loan amount was disbursed, and that they had not received any reminder or letter from the bank, regarding return of loan amount and had not affixed their thumb impressions on the forms. The report also indicted the employee / respondent for transferring the amounts to Sri Madan Mohan Saha, another employee (CCG) of the bank. Furthermore, the report placed strong reliance on a confessional statement made by others charged, including Sri Subhendu Dash, Ex-Pradhan of Chandabila at the time of the incident (document X, photocopy of the alleged confession dated 03.03.1994). The enquiry officer therefore, found that the employee was guilty of the charges. The report noted, interestingly, that the loan amount (i.e., Rs. 60,000/- out of Rs.1,20,000/-) was deposited in the account of the bank, and that the balance was misappropriated.5. By an order dated 07.10.2002, the Disciplinary Authority, accepted the report, and, relying on the past conduct of the respondent, terminated his employment. The employee appealed this order; the appellate authority however, dismissed the appeal by order dated 28.04.2003. The aggrieved employee approached the Calcutta High Court, under Article 226 of the Constitution (W.P. No. 1391 (W)/ 2004). By a judgment and order (Dated 15.05.2007) that writ petition was rejected. The employee then filed an appeal. By the impugned order, the division bench allowed that appeal, and set aside the orders of the appellate and disciplinary authorities.15. The division bench, in the impugned order, after considering the entire record, noticed the following:(a) MW 1, Sri Satikinkar Deb, Deputy Manager, Sepai Bazar Branch stated that on the basis of the handwriting of the subsidy register and also from his own experience that Sri Madan Mohan Saha used to maintain the register on most occasions. There was no evidence that the appellant ever maintained the said register. During enquiry MW 1 stated that there was authentication of the respondent in some cases and by himself in many cases in the subsidy register when the amount was debited. It was Sri Madan Mohan Sahas duty as the cashier to maintain the subsidy register, and he failed to discharge his duty. The said amount was credited to marginal deposit account. The matter of non-recording of the said subsidy amount in the subsidy register was due to Sri Madan Mohan Sahas omission. For that irregularity the respondent could not be held responsible; he did not deliberately conceal the fact with any malafide intention.(b) With respect to the charge of depositing subsidy in the account of twelve fictitious beneficiaries, findings were based on the evidence of seven of those beneficiaries, whose names were actually shown in the record. These witnesses denied having received or returned the loans. They were identified by Sri Haradhan Bera (MW2), subsequent Pradhan, Chandabila Gram Panchayat. MW2s identity was challenged at the outset by the respondent; he did not produce any identity proof. This was not dealt with by the enquiry officer; and the identity of the seven borrowers / beneficiaries was not independently proved.(c) The third charge of misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha was based on the confessional statement document marked X. That document was not exhibited. The employee was neither its author, nor signatory. Therefore, the document could not be used against him to fasten him with liability for alleged misappropriation. The finding based on a document not even admitted into evidence and not signed and accepted by the appellant was perverse.(d) The finding on charge relating to removal of documents was not proved, since it was based on no evidence. The respondent was transferred out of the branch in 1990 and the proceedings were initiated in 1997. Sri Madan Mohan Saha was working in the branch after the respondents transfer. So, it could not conclusively be established that the respondent removed those documents to conceal the misappropriation and to destroy them.(e) The division bench also observed that with respect to the last charge the enquiry officer recorded that:The Management side could not establish the reason for crediting of Rs. 34,000.00 on 28.06.94 to different 28 loan accounts out of the fund transferred from S.S. Account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94. Moreover, Sri Haradhan Bera in his evidence avoided the matter for some reasons best known to him. But for the above, there is no effect on the charge No.5 which states only that C.S.O. sent a Demand Draft of Rs. 25,000.00 dated 22,04, 1994 and for Rs. 10,000.0 dated 30.05.1994 to Shri Madan Mohan Saha and Shri Saha deposited the amounts of drafts in his own and joint S.S. Accounts. Thereafter transfer of Rs. 25,000.00 was made from S.S. Account No. 1110 of Sri Haradhan Bera and Shri Prafullah Mahata on 30.03.1994…

Reasoning:
16. In one of the earliest decisions of Union of India v. H.C. Goel (1964) 4 SCR 718 relating to departmental proceedings, this court observed that where a public servant is punished for misconduct after a departmental enquiry is conducted, a clear case where interference under Article 226 of the Constitution is warranted is when there is no evidence to establish the officials guilt.22.… The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney Generals argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.23. That takes us to the merits of the respondents contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondents grievance is well founded, because, in our opinion, the finding which is implicit in the appellants order dismissing the respondent that Charge 3 is proved against him is based on no evidence.17. Apart from cases of no evidence, this court has also indicated that judicial review can be resorted to. However, the scope of judicial review in such cases is limited T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255 . In B.C. Chaturvedi v. Union of India (1995) 6 SCC 749  a three-judge bench of this court ruled that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority; it does not re-appreciate the evidence. The court held that:12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 ], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.19. The bank is correct, when it contends that an appellate review of the materials and findings cannot ordinarily be undertaken, in proceedings under Article 226 of the Constitution. Yet, from H.C. Goel onwards, this court has consistently ruled that where the findings of the disciplinary authority are not based on evidence, or based on a consideration of irrelevant material, or ignoring relevant material, are mala fide, or where the findings are perverse or such that they could not have been rendered by any reasonable person placed in like circumstances, the remedies under Article 226 of the Constitution are available, and intervention, warranted. For any court to ascertain if any findings were beyond the record (i.e., no evidence) or based on any irrelevant or extraneous factors, or by ignoring material evidence, necessarily some amount of scrutiny is necessary. A finding of no evidence or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority. However, the margin of appreciation of the court under Article 226 of the Constitution would be different; it is not appellate in character.20. In the present case, the impugned judgment discloses scrutiny of the record. The same level of scrutiny is absent in the decision of the learned single judge. That the division bench conducted the kind of scrutiny that it did, cannot be a factor to hold its decision erroneous.21. Coming now to the charges, it can be seen that MW 1, the management witness, who deposed about the procedure in the bank, for recording entries in the subsidy register, clearly stated that at the relevant time, some entries were made by the respondent, and some by Sri Madan Mohan Saha, who used to maintain the subsidy register on most occasions. He also deposed that it was Sri Madan Mohan Sahas duty as the cashier to maintain the subsidy register. Saha failed to discharge that duty. In view of this evidence, and no contrary documentary evidence casting the primary responsibility to maintain the subsidy register on the respondent, the impugned judgment, in this courts opinion, cannot be faulted with in concluding that there was no material to prove the first charge against the employee. As regards the second charge of misappropriation of subsidy amount from twelve individuals, whose names were fraudulently introduced, the bank relied on the depositions of seven persons. They were identified by Sri Haradhan Bera (MW2), himself at the time Pradhan, Chandabila Gram Panchayat. MW 2s identity was challenged at the outset by the respondent; he did not produce any identity proof. The enquiry officer did not rule on this. The impugned judgment concluded that in the absence of proof of Sri Haradhan Beras identity, and any independent material, with respect to the seven alleged beneficiaries, their identity was not independently proved. Additionally, there had to be some material, linking the employee (respondent) with the applications, introducing the borrowers, etc. MW-1, the subsequent manager, clearly deposed in reply to a query (question no. 8) as to who used to identify the borrowers before sanction and disbursement of IRDP loans, that the Pradhan/Member of Gram Panchayat used to identify the beneficiaries. Such being the case, the involvement of the respondent employee had to be shown by more definitive evidence. It is again a matter of record, that the then Pradhan of the Gram Panchayat, Sri Subhendu Kumar Das, identified the borrowers. In these circumstances, even in departmental proceedings, there had to be some overt evidence, and not mere suspicion, to support a valid finding of complicity of the respondent. In these circumstances, the impugned judgment cannot be faulted with in its findings on the second charge.The document was witnessed by six persons (Sri S.K Sukhjan Ali, Sri Santosh Kumar Saha, Sri Trilochan Singh, Sri Suresh Chandra Das, Sri Nabin Suri and Sri S.K. Washef Hussain). The document was not exhibited. Undeniably:(a) The respondent did not sign the confession.(b) The confessional statement dated 03.03.1994 was made by Sri Subhendu Kumar Das and Sri Madan Mohan Saha, which was attested by an officer of the bank.(c) The confession was an admission as far as its makers were concerned. The impugned judgment held that this document could not be used against the employee respondent to fasten him with liability for alleged misappropriation. The finding based on a document not even admitted into evidence and not signed and accepted, by the appellant was held to be perverse.23. This court previously had an occasion to deal with a departmental proceeding that culminated in a penalty, where the enquiry was based on the confessional statements made to the police and no other material. The court, in Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570  held such evidence to be inadequate:15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.There are decisions of this court (J.D. Jain v Management of State Bank of India 1982 (1) SCC 143  and State Bank of India v Hemant Kumar 2011 (2) SCC 22) where witness depositions which stated that the charged employee had previously confessed or admitted his role and guilt, were held to be admissible. In the present case, however, the confessional statement was not by the respondent. Those who authored the confession, did not depose in the enquiry. Furthermore, no witness who heard the authors of the confession, deposed to it. At best then, that document bound the authors, not third parties, like the respondent. The enquiry officer clearly erred by relying on such extraneous matters, as the respondent could not be made a scapegoat for the confession of others, especially with regard to his role. The banks charge about his complicity had to be proved by evidence. This document, containing others confession, could not have been used against him.24. As far as the other two charges go, the division bench correctly held that there was no evidence to show that the respondent had removed the documents, from the bank. Importantly, he was charged seven years after the alleged incident; by that time other managers had taken over the branch. As regards the last charge of transferring amounts through three demand drafts from the account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94 was concerned, the enquiry officer noted that, Sri Haradhan Bera in his evidence avoided the matter for some reasons best known to him. In the absence of any other material, the finding that the amounts had been misappropriated by the respondent, who in connivance with Sri Madan Mohan Saha, and Sri Subhendu Kumar Das, ensured that the loan component was returned to the bank, cannot be said to have been established.25. An interesting side is this - Sri Madan Mohan Saha, who confessed to the misconduct, was charged and proceeded with departmentally. The confession of guilt, which he owned up to, nevertheless resulted in a mild penalty of withholding of increments. However, the respondent, who did not admit his guilt, or confess to it, and in respect of whom there was no credible evidence, even going by the lower standards of acceptable proof in departmental inquires, was held to be guilty and visited with the penalty of dismissal. A reading of the disciplinary authoritys order reveals that his past record of minor misconduct played a major role in determining his guilt, despite lack of evidence, and the extreme penalty of dismissal.