The High Court is not and cannot act as a second court of the first appeal: Orissa High Court

HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.180709 In the matter of an application under Articles 226 & 227 of the Constitution of India. Sk. Mohammed Idris Life Insurance Corporation of India represented through its Chairman Central Office Yogakshema Jeevan Bima Marg Mumbai and others …. For Petitioner Opp. parties … M s. U.C. Pattnaik Mr. A.J. Mohanty Mr. S.D. Mishra and Mr. S. Patnaik. For O.Ps. … M s. P. K. Rath Mr. A. Behera Mr. S. Rath and Mr. S. Dash. JUDGMENT THE HONOURABLE JUSTICE BISWANATH RATH Biswanath Rath J. This writ petition involves a challenge to Annexure 8 an order passed by the Disciplinary Authority involving an enquiry initiated against the petitioner employee Annexure 10 involving an order of the Appellate Authority Annexure 12 an order of the Chairman appearing to be a decision in Second Appeal at the instance of the petitioner the delinquent and Annexure 13 an order of Establishment for recovery of Rs.1 03 529 but however @ Rs.5 000 per month from the salary of the petitioner the delinquent with effect from November 2009. involving the case is that the petitioner working as Assistant Administrative Officer in the Bhadrak Branch of Life Insurance Corporation of India was allotted duties and responsibilities of keeping the cash boxes of the Branch in the Iron Safe inside the Strong Room under lock and key at the end of the day after transaction of the Branch is over and also to remove the cash boxes from the Iron Safe at the beginning of Office hours by placing the cash boxes with Cashier in cash counters till the end of the working hours. The Iron Safe of the Branch is normally operated by two Officers of the Branch one the petitioner being the holder of the Key No.1 and the other Officer namely Sri N.C. Das being the holder of Key No.2. As per routine procedure the cash boxes are kept and removed in presence of both the key holders and also require taking help of the sub staff for the purpose of carrying the cash boxes to places involved. Petitioner claimed that the Branch at Bhadrak was operating in a rented building and after construction of its own building the process of shifting started on 15.05.2004. The Iron Safe in the Branch contained three movable cash boxes and the Iron Safe is located inside the chamber of the Branch Manager at the first floor of the Branch. The cash counters are located in the ground floor of the building. It is stated on 15.05.2004 petitioner and other Officer being the key holder of Key No.1 and Key No.2 respectively opened the Iron Safe for shifting of boxes to the cash counter using their respective keys and removed two cash boxes and one daily wager namely Sri Subash Nayak assigned for the job carried the two cash boxes in each hand accompanying the petitioner to the cash counters where those two boxes were delivered at counter no.2 and counter no.4. In the meantime the other Officer was standing near the Iron Safe. After delivery of two boxes the petitioner and above named daily wager came back to the Strong Room and then removed the third cash box as well as one packet containing few loose notes. In the same process after removing the third cash box petitioner asked the said daily wager to wait till the Iron Safe and Strong Room were locked and started the process of locking the Iron Safe as well as the Strong Room by himself and by the other Officer. It is also disclosed here that after locking the Iron Safe and the Strong Room when the petitioner looked back he found the said sub staff was not available there and he had gone away with the cash box along with the packet containing loose notes. Upon finding the daily wager he asked the daily wager as to why he left the Strong Room without petitioner’s knowledge to which the daily wager replied him that he had already delivered the same at the desired counter. It is at this point of time petitioner went to counter no.4 and asked about receipt of second cash box but he was responded by the cashier saying that he had received only the first cash box and not received the second cash box. Petitioner immediately moved to the Office Gate and asked the Security to close the Gate and not to either allow entry of any person or exit of any person. Petitioner along with others searched the Office premises and outside the boundary but they failed to trace the third box accounted for a sum of Rs.2 07 057.43p. An F.I.R. was immediately lodged. Consequent upon theft of cash from the Branch of the LIC the Disciplinary Authority vide letter dated 21.06.2005 initiated a disciplinary proceeding followed with issuing charge sheet against the petitioner. Charges were framed under two counts. First charge involving the petitioner is that the petitioner did not accompany the daily wager all along in shifting of all the three cash boxes and plastic bag containing loose notes from the Iron Safe to the cash counter which led to theft of the third cash box containing a sum of Rs.2 07 057.43p. and thus the petitioner has failed to maintain absolute integrity and devotion to the duty. The second charge the petitioner faced is that he failed to serve the Corporation honestly and faithfully thereby violating the provisions of Regulations 21 and 24 read with Regulation 39(1) of the LIC of India Staff Regulation 1960(a) and 39 (c) of the Regulation 1960 as finds place at Annexure 8 to the writ Being aggrieved petitioner preferred an Appeal under Regulation 40 of the Regulation 1960 inter alia contained that he is no way connected with the charges framed. Considering the claim of the petitioner contesting the order passed by the Disciplinary Authority the Appellate Authority vide order dated 24.05.2008 rejected the Appeal finding no scope for interfering with the order passed by the Disciplinary Authority. Petitioner being aggrieved by the order of the Appellate Authority vide Annexure 10 preferred a Memorial under Regulation 49 of the Regulation 1960 before the Chairman opposite party no.2 who has been pleased to reject the Memorial of the petitioner. Assailing the orders passed by the different authorities indicated hereinabove petitioner preferred the present writ petition on the premises that the Strong Room and the Iron Safe are all locked inside the Chambers of the Branch Manager. Clause 4 of the Manual in operation provides under the heading ‘safety of cash and keeping of safe keys’ that the authorized person holding the keys shall keep the cash box containing cash safely locked in the Iron Safe at the close of business of each working day and hand over the same to the Cashier every morning. There was no permanent sub staff in the Bhadrak Branch and daily wagers have been engaged to carry the cash boxes as per the order of the Branch Head. It is contended that on 15.05.2004 the only daily wager present in the Office was Sri Subash Nayak as all other daily wagers were engaged by the Branch Manager for shifting of Office furnitures etc. from the old building to the new building and therefore the Cashier of the Branch never accompanied the holder of the keys to the Iron Safe for which the petitioner was compelled to accompany the said daily wager to the cash counter at the time of delivery of first two cash boxes leaving the other key holder near the Iron Safe. After removal of the third cash box and the plastic bag containing loose notes the petitioner instructed the daily wager to remain standing till locking of the Iron Safe as well as the Strong Room is over. Petitioner alleged that it is at this stage he surprisingly did not find the daily wager and the daily wager had already left the place carrying the third box. Petitioner claimed that he could only come to know from the Cashier that the daily wager had not handed over the third cash box to him and he had only received the plastic bag containing loose notes from the daily wager. It is also asserted that the petitioner even asked the Security to close the door and not allow any entry or exit till the search is over. By calling the Police he also got the daily wager arrested involving the F.I.R. and there has already been submission of charge sheet against the daily wager under the provision of Section 406 of the I.P.C. In the circumstance the petitioner claimed that he cannot be held responsible for loss of cash if Sri U.C.Pattnaik learned counsel for the petitioner on reiteration of the facts involved herein in his plea submitted that for the clear disclosure by the petitioner that the third cash box and the packet containing loose notes since were already handed over to the daily wager and for the clear disclosure by the petitioner that after the petitioner locking the Iron Safe as well as the Strong Room found the daily wager already left the place with the cash box further there is also admission by the petitioner that he could only come to know from the person attached to the cash counter that the third box did not reach him further on the basis of the F.I.R. at the instance of the Institution said daily wager since is facing trial under Section 406 of the I.P.C. the petitioner could not have been held responsible for the loss of the amount involved herein. Sri Pattnaik learned counsel also referring to the plea of the petitioner before the Enquiry Officer and the contents of the enquiry report contended that there has been no proper enquiry before coming to hold the petitioner guilty. Sri Patnaik also contended that even though the petitioner raised all these grounds before the Appellate Authority as well as the highest Authority of the Institution i.e. the Chairman everybody failed to appreciate the grounds raised by the petitioner and therefore claimed all the impugned orders involved herein should be interfered with and set aside. Sri P.K. Rath learned counsel for the Insurance Company on the other hand taking this Court to the findings of the Enquiry Officer the findings of the Disciplinary Authority the First Appellate Authority and the Second Appellate Authority in his opposition to the claim of the petitioner submitted that for the concurrent findings of fact by all the three Authorities involved in a disciplinary proceeding issue there is no scope for interfering with any of the impugned orders. Sri Rath learned counsel further contended that looking to the concurrent findings on the facts holding the petitioner and the 2nd key holder responsible for loss of a sum of Rs.2 07 057.43p and the Authority having punished the petitioner only with penalty of Censure and recovery of 50% the punishment so awarded by the Disciplinary Authority against the petitioner appears to be very lenient requiring no interference by this Court. Sri Rath learned counsel referring to the enquiry report the findings of the disciplinary authority also contended that there is even otherwise also no merit in the claim of the petitioner. Looking to the charge sheet this Court finds the petitioner faced the following charges : “THAT on 15.05.04 at about 11.25 AM you opened the safe as the holder of the Key No.1 for shifting of the Cash Boxes from the safe to the cash counter of Bhadrak BO in presence of Shri NC Das AAO SR No.335025 the holder of the Key No.2 and one Daily Wager Sri Subhas Nayak. You on the above said date did not accompany the aforesaid daily wager all along the shifting of all the three cash boxes and plastic bag containing loose notes from the safe to the Cash Counter. You at the time of shifting of the third Cash Box and the plastic bag containing the loose notes did not accompany the daily wager which led to the theft of the third Cash Box containing cash amounting to Rs.2 07 057.43. Thus you had shown gross negligence and lack of diligence in discharging your duties which caused financial Rs.2 07 057.43.” the Corporation to tune of It also appears as per the petitioner’s own submission petitioner was provided opportunity of showing cause at the time of submission of charge sheet which he has also availed submitting his response vide Annexure 3. So far as the enquiry is concerned there is no allegation in the writ petition at all that petitioner has not been provided with opportunity of participation. Further on the enquiry report being provided petitioner was asked for submitting his response. In response to which the petitioner also submitted a response vide Annexure 5. Before imposition of penalty petitioner has been provided with an opportunity of showing cause vide Annexure 6 to which the petitioner responded vide Annexure 7. Reading all his submissions and the stand before the Enquiry Officer it is observed that the petitioner had the only stand that after opening of the Strong Room the cash box and the packet containing loose notes were taken out both were handed over to the daily wager and he asked the daily wager to wait for him with the cash box and the packet till he completes the locking process but however when the petitioner completed the locking process and turns back he found the daily wager was missing with the cash box as well as the packet containing loose notes. Further on attending cash counter he was told by the Cashier that the cash box did not reach him except the Cashier has been handed over with the packet containing loose notes. In the enquiry there is a clear finding that there is missing of cash to the tune of Rs.2 07 057.43 through the third cash box. The fact that petitioner did not accompany the daily wager to the cash box has also been established. Thus petitioner failed in establishing that it is only the daily wager who should be held responsible for missing of the money. For the responsibility lying on the petitioner to establish his case in the enquiry and he having failed to establish the same further for the observation in the enquiry report having concurred by the Disciplinary Authority then also by the First Appellate Authority and also the Second Appellate Authority this Court finds for involvement of concurrent finding of facts by so many Authorities this Court has no scope for interfering with such findings. Further looking to the nature of allegation and holding the petitioner guilty on such serious allegation involving missing of huge cash it is also a clear case of the employee failed to maintain integrity and responsibility during discharge of employment and there is establishment of a serious charge warranting no sympathy on such person particularly keeping in view the involvement of a financial Institution. This Court looking to the gravity of offence involved here and examining the punishment imposed on the petitioner also finds for petitioner being punished with word of “Censure” and 50% recovery of amount stolen the Authorities themselves have taken a very lenient view requiring no further indulgence. This Court here takes note of some judgments on Judicial Review involving Disciplinary orders: AIR 1967 SC 295 :Law is fairly settled that if the action or decision remains perverse or is such that no reasonable body or person property in front of court come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same. AIR 1988 SC 1737 : It is held that exercise of administrative power will be set aside if there is a manifest error in the exercise of power or exercise of power is manifestly arbitrary. This decision has also been endorsed by Hon’ble apex Court in AIR 2003 SC 1843 : 1997) 3 SCC 657 : Hon’ble apex Court has even gone to the extent saying the High Court in proceedings u A.226 of Constitution of India does not act as appellate authority and has only the jurisdiction to correct error of law or procedural error clearly to manifest injustice or violation of natural justice. 2006) 5 SCC 673 : wherein at paragraph 4 the Hon’ble apex Court held that the High Court has limited scope of interference in the administrative action of the State in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India and therefore the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed. 2015) 3 SCC 101 :State Bank of India Vs. R. Periyasamy) wherein at paragrtaphs 9 and 12 the Hon’ble apex Court held as follows: “9. It is not really necessary to deal with the judgment of the learned Single Judge since that has merged with the judgment of the Division Bench. However some observations are necessary. The learned Single Judge committed an error approaching the issue by asking whether the findings have been arrived on acceptable evidence or not and coming to the conclusion that there was no acceptable evidence and that in any case the evidence was not sufficient. In doing so the learned lost sight of the fact that the Single Judge permissible enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was acceptable or not was a wrong question unless it raised a question of admissibility. Also the learned Single Judge was not entitled to go into the question of the adequacy of evidence and come to the conclusion that the evidence was not sufficient to hold the respondent guilty. 12. On the question of shortage of money the Division Bench merely upheld the findings of the learned Single Judge that there was no clinching evidence in support of the charges. The Division Bench approved the findings of the Single Judge that the inquiry report that the shortage of cash occurred only between 16.11.1985 and 05.04.1986 when the respondent was a joint custodian was based on surmise and conjecture. The Division evidence Bench did not care to advert to the evidence. That evidence rightly relied on by the enquiry officer occur which established that the shortage did between 16.11.1985 and 05.04.1986. In fact the inquiring officer has given cogent reasons rendering the findings that the shortage could not have occurred after 05.04.1986 upto the discovery of 15.04.1986 when two acting cashiers had functioned. Moreover the observation that there is no clinching evidence in support of the charges is is another way of saying that the insufficient or inadequate which is not permissible. It bears repetition that sufficiency or adequacy of evidence is not the ground on which the findings of facts may be set aside by the High Court under Article 226. The justification offered by the Division Bench that the learned Single Judge had to undertake the exercise of analysing the findings of the appellants had the enquiry officer because deprived the respondent of his livelihood is wholly untenable. A transgression of jurisdiction cannot be justified on the ground of consequences as has been done. Moreover the reliance by the Division Bench on Mathura Prasad Vs. Union of India & Ors.[12] is entirely misplaced since that case arose in an entirely different set of circumstances. We also find it difficult to understand the justification offered by the Division Bench that there was no failure on the part of the respondent to observe utmost devotion to duty because the case was not one of misappropriation but only of a shortage of money. The Division Bench has itself stated the main reason why its order cannot be upheld in the following words "on re appreciation of the entire material placed on record we do not find any reason to interfere with the well considered and merited order passed by the learned Single Judge." 2015) 2 SCC 610 : wherein at paragraph 12 the Hon’ble apex Court held as follows: “12. Despite the well settled position it is painfully disturbing to note that the High Court has acted as the disciplinary proceedings re appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings the High Court is not and cannot act as a second court of first appeal. The High Court in exercise of its powers under Article 226 227 of the Constitution of India shall not venture into re appreciation of the evidence. The High Court can only see whether: the enquiry is held by a competent authority the enquiry is held according procedure prescribed in that behalf to the there is violation of the principles of natural justice in conducting the proceedings the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case the authorities have allowed themselves to be influenced by considerations irrelevant or the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion the disciplinary authority had erroneously failed to admit the admissible and material evidence the disciplinary authority had erroneously evidence which influenced the finding the finding of fact is based on no evidence.” For the claim of the petitioner opposed to law of the land discussed hereinabove and for there involved a proven case of lose of money in a Financial Institution this Court finds there is no substantial ground to interfere with either of the impugned orders. As a consequence the writ petition stands dismissed having no merit. For the dismissal of the writ petition the interim order dated 30.11.2009 passed in Misc. Case No.156209 stands vacated. In the circumstance however there is no order as to cost. BISWANATH RATH J. Orissa High Court Cuttack. Dated the 4th January 2021 KCBisoi AR cum Sr. Secy. 

Summary: It is very disconcerting that the High Court functioned as a disciplinary appeal authority and even re-evaluated the evidence before the investigating officer. The disciplinary authority approved the finding on Charge and the Central Advisory Tribunal likewise backed it. The High Court cannot and is not able to operate as a second court of the first appeal in disciplinary proceedings. The judgment was passed by The High Court of Orissa in the case of Sk. Mohammed Idris V. Life Insurance Corporation of India [W.P.(C) No.18071 of 2009] by a Single Bench consisting of Hon’ble Shri Justice Biswanath Rath.  The petitioner preferred an appeal under Regulation 40 of the Regulation, 1960, inter alia, which contained that he is in no way connected with the charges framed. Considering the claim of the petitioner contesting the order passed by the Disciplinary Authority, the Appellate Authority, rejected the Appeal finding no scope for interfering with the order passed by the Disciplinary Authority. Learned Counsel for the petitioner submitted that plea of the petitioner before the Enquiry Officer and the contents of the enquiry report contended that there has been no proper enquiry before coming to hold the petitioner guilty. Sri Patnaik also contended that even though the petitioner raised all these grounds before the Appellate Authority as well as the highest Authority of the Institution, i.e. the Chairman, everybody failed to appreciate the grounds raised by the petitioner, and therefore, claimed all the impugned orders involved herein should be interfered with and set aside. Learned Counsel for the respondent, on the other hand, taking this Court to the findings of the Enquiry Officer, the findings of the Disciplinary Authority, the First Appellate Authority and the Second Appellate Authority in his opposition to the claim of the petitioner submitted that for the concurrent findings of fact by all the three Authorities involved in a disciplinary proceeding issue, there is no scope for interfering with any of the impugned orders. He referred to the enquiry report, the findings of the disciplinary authority also contended that there is even otherwise also no merit in the claim of the petitioner. While clearing the contention the learned court observed that “looking to the gravity of offence involved here and examining the punishment imposed on the petitioner also finds for petitioner being punished with word of “Censure” and 50% recovery of the amount stolen, the Authorities themselves have taken a very lenient view requiring no further indulgence.”