TMI Blog2021 (1) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... ings held against the delinquent if it is, in any manner, inconsistent with the Rules of natural justice or in violation of the statutory Rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. In the case on hand, the charge-sheet was served upon the Respondent delinquent for misappropriation of public funds by affording fake credits in his various accounts maintained at the branch where he was serving (Mumfordganj Branch) during the relevant period. In all, 7 charges were levelled against him of grave misconduct which he had committed in discharge of his official duty and after affording an opportunity of hearing to the Respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 14th August, 1995 and later the charge-sheet dated 11th April, 1996 was served upon him detailing seven charges of misappropriation of funds which he had committed in discharge of his duties as an employee of the Bank. 4. It may be relevant to note that for the self-same misappropriation of bank's money by affording fake credits in his various accounts maintained at the Branch where he was posted, a criminal case was also instituted against him for offences Under Sections 420, 467, 468, 471 Indian Penal Code read with Section 120-B Indian Penal Code and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. 5. After the charge-sheet dated 11th April, 1996 was served, the Respondent delinquent submitted his reply dated 08th May, 1996 denying all the charges. The enquiry officer was thereafter appointed by the competent authority to hold enquiry in terms of Bipartite Settlement applicable for award staff of Nationalized Bank. The Respondent had participated in the disciplinary enquiry and the enquiry officer after holding enquiry in accordance with the procedure prescribed under the Bipartite Settlement applicable for award staff of National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r produced the following documents: PEX-4: Branch clearing general account Schedule No. 4 dated 25.03.1994 for Rs. 4,87,300. PEX-5: Saving bank credit voucher dated 25.03.1994 for Rs. 4,87,300 pertaining to saving bank account No. 7547 of Shri K.C. Minglani. PEX-6: Debit voucher dated 25.03.1994 for Rs. 2,36,550 pertaining to savings bank account No. 7547 of Shri K.C. Miglani. PEX-7: Current account credit voucher dated 25.03.1994 for Rs. 89,150 pertaining to current account No. P-51 of Shri Ajay Kumar Srivastava. PEX-8: Debit voucher dated 04.04.1994 for Rs. 2,40,750 pertaining to saving bank account No. 7547 of Shri K.C. Miglani. PEX-9 Current Account credit voucher dated 04.04.1994 for Rs. 10,600 pertaining to current account No. P-51 of Shri Ajay Kumar Srivastava, actually the voucher is for Rs. 10,000. PEX-10 Current account day book dated 04.04.1994. PEX-11 Ledger sheet of current account No. P-15 of Shri Ajay Kumar Shrivastava The Charge is proved. Allegation/Charge No. 3: On 22.09.1994, Shri Srivastava conspired with some staff members at the branch with a view to defraud the bank and accordingly a fake debit of Rs. 5,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. Smt. Rashmi Srivastava (his wife) wherein no credit balance was available and got its part amount of Rs. 3,00,000 credited to his current account No. P-51 with a view to defraud the Bank. To prove the above allegation/charge, the presenting officer produced the following documents: PEX-22-Current A/c credit vouchers dated 31.05.1995 for Rs. 3,00,000/- pertaining to current a/c No. P-51 of Sri Ajay Kumar Srivastava PEX-23-Ledger sheet pertaining to saving bank a/c No. 11068 PEX-24-Ledger sheet pertaining to current a/c No. P-51. PEX-25-Saving bank daybook dated 31.05.1995 PEX-26-Current a/c daybook dated 31.05.1995 The charge is proved. Allegation/Charge No. 7: On 20.10.1993, Shri Srivastava borrowed Rs. 35,000.00 from Shri K.C. Miglani S.B. Account No. 7547, an account holder at the branch without the permission of the Bank. To prove the above allegation/charge, the presenting officer produced the following documents: PEX-25A-Photocopy of the ch. No. 775157 dated 29.10.1993 for Rs. 35,000/- PEX-26A-Saving bank credit voucher dated 29.10.1993 for Rs. 35,000/- pertaining to a/c No. 7547 PEX-27-Debit voucher dated 20.10.1993 for Rs. 35,000/- p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in his communication dated 29th June, 1999 and in terms of Para 521(5)(a) of the Sastry Award read with Para 18, 28 of the Desai Award as modified by the 12th Bipartite Settlement dated 14th February, 1995 between the State Bank of India and All India State Bank of India Staff Federation, confirmed the penalty of dismissal from service by its order dated 24th July, 1999. 10. The Respondent preferred departmental appeal against his dismissal from service. A bare perusal of the appeal preferred by the Respondent would indicate that it was just a reflection of the general objection raised in reply to the show-cause notice with no specific averment in the appeal as to what was the procedural error being committed by the enquiry officer in holding disciplinary enquiry or of any violation of the principles of natural justice or any prejudice being caused to him of a kind during the course of enquiry or the action being bias or malafide initiated for certain ulterior reasons if any, and no specific objection was raised in reference to the charge Nos. 2-7 stands proved against him other than general objections which are vague and ambiguous without any foundation. 11. The departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en followed or the enquiry was held by the authority who was not competent under law or the findings or conclusions which have been arrived at by the enquiry Officer in his report and confirmed by the disciplinary authority are not supported by the evidence on record or there was a violation of the principles of natural justice. In the absence whereof, the plea raised by the Respondent holding that the disciplinary authority has passed a non-speaking order without application of mind lacks merit and is not substantiated from the material on record. 15. To the contrary, the Enquiry Officer in his detailed report recorded cogent reasons in holding the Charge Nos. 2-7 proved against the delinquent employee. The disciplinary authority while expressing its prima facie opinion and after the copy of the enquiry report along with the tentative view of the disciplinary authority being served and affording a reasonable opportunity of hearing to the Respondent and having taken note of his written reply into consideration, has dealt with so called alleged objections raised, confirmed its tentative view expressed in upholding penalty of dismissal from service after assigning reasons supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with law and the procedure which was adopted by the disciplinary authority in holding the Respondent guilty in reference to Charge No. 1 was not only a procedural error but is a great prejudice being caused to the Respondent and such defect could not have been cured by the post-decisional hearing, which has been rightly upheld by the High Court in the impugned judgment and needs no interference by this Court. 19. We have heard learned Counsel for the parties and with their assistance perused the material available on record. 20. At the outset, it may be noted that the enquiry officer has noticed in his enquiry report that the Respondent delinquent neither produced any document nor witness in self-defence. At the same time, he never requested to allow him to defend him by a representative of his choice. He further stated during the course of enquiry that he neither wanted to say anything about the prosecution documents nor he wanted to ask any question to the presenting officer. Taking note of the record of enquiry including the documents produced by the presenting officer, brief of the presenting officer, defence and the submission made by the Respondent employee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed the tentative order of dismissal dated 29.6.1999 on the basis of the findings of the Enquiry Officer without seeking his comments thereon. In his view, the report of the Enquiry Officer must have been forwarded to him for seeking his submissions, if any, which has not been done. No such procedure is laid down followed in the bank to forward the enquiry report to the charged employees before finalization of the proposed punishment. The procedure in this regard has been followed by enquiry report and related documents have been forwarded to him along with the tentative order to enable him to submit his defence as to why the proposed punishment should not be imposed on him as per the system and procedure in the bank. 3. His allegation that prosecution documents had not been given to him earlier which deprived him of the reasonable opportunity of proving himself not guilty as not based on facts as all the documents had been made available to him for perusal/comments during the enquiry proceedings. The copies of the enquiry proceedings had been given to him on the same day on the conclusion of the day's proceedings and the allegation has no substance. On the perusal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by the appellate authority in its order dated 15th November, 1999, the relevant portion of which is extracted as under: 3. In order to examine the aforesaid points by the Appellant, I have gone through the charge-sheets, reply of charge-sheets submitted by the charged employee, enquiry proceedings, findings of the Enquiry Officer, tentative order dated the 29th June, 1999, final order dated the 24th July, 1999, his service sheet and other relevant records of the case. My views are as under: i) Almost all points raised by Shri Srivastava, as above, have been suitably replied in the Enquiry Officer's reply and in the final order dated the 24th July, 1999. The clarification given are quite reasonable and I am satisfied with the same. He was given full opportunity to defend himself and there was no ground for re-opening the enquiry. The charges contained in the charge-sheet were not vague, as alleged by him, and all the charges, except one, have been proved in the enquiry. ii) The contention of Shri Srivastava that the Enquiry Officer should be above the rank of the Disciplinary Authority, the officer who has issued the charge-sheet, is not correct. The Disciplinary A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stava in his appeal have no merit. The punishment ordered by the Disciplinary Authority is commensurate to the charges levelled against him and the contention of the Appellant does not hold good in view of the charges proved otherwise as discussed in the preceding paragraphs. After careful consideration of the matter in its entirety, I am of the view that the Disciplinary Authority is fully justified in awarding the punishment of dismissal without notice and treating the period spent by Shri Srivastava as suspended as such and no payment of salary and allowances, except the subsistence allowance already paid, to him. I, therefore, hold the order of the Disciplinary Authority. I order accordingly. 23. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts Under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether Rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion. 27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry. 28. It is true that strict Rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o each charge recorded a finding in holding charge No. 1 not proved and charges Nos. 2-7 stood proved against the delinquent Respondent. 32. It was later revisited by the disciplinary authority and apart from the note of disagreement in reference to charge No. 1, the disciplinary authority accepted the finding of fact recorded by the enquiry officer in his report for charge Nos. 2 to 7 and with its prima facie opinion, called upon the Respondent to submit his explanation and after affording an opportunity of hearing and dealing with the objections raised by the Respondent in his written reply expressed its brief reasons while upholding the finding recorded by the enquiry officer in his report and confirmed its opinion of inflicting penalty of dismissal from service by order dated 24th July, 1999 and the appellate authority also later revisited on the appeal being preferred and after assigning reasons confirmed the finding of fact in upholding the order of penalty inflicted upon the Respondent delinquent. 33. The submission which persuaded the High Court in the impugned judgment is basically for two reasons. Firstly, before the finding of disagreement being recorded by the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court while interfering with the order of penalty of dismissal inflicted upon the Respondent employee. 37. It is supported by the judgment of the Constitution Bench of this Court in State of Orissa and Ors. v. Bidyabhushan Mohapatra (supra) wherein it has been observed as under: 9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of Charge 1(b) the Respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of Charges 1(a) and 1(e) in the view of the High Court the Rules of natural justice had not been observed . The recommendation of the Tribunal was undoubtedly founded on its findings on Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated Rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision [see State of Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779]. 40. The Constitution Bench has clearly laid down that even after the charges which have been proved, justify imposition of penalty, the Court may not exercise its power of judicial review. 41. So far as the submission which has prevailed upon the High Court holding that the order passed by the disciplinary/appellate authority was a non-speaking order passed with non-application of mind, in our considered view, is not factually supported by the material available on record. 42. In the case on hand, the disciplinary/appellate authority was not supposed to pass a judgment however while passing the order dated 24th July, 1999, the disciplinary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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