Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.) Heard Sri Vikas Budhwar, learned counsel for the petitioner and Sri Ambrish Sahai, learned counsel for the respondents.
The facts as narrated by the petitioner in the writ petition is that the petitioner was appointed as directly recruited officer initially in Bareilly Kshetriya Gramin Bank which was later on amalgamated in Baroda Uttar Pradesh Gramin Bank having its head office at Raebareilly. During the period of posting of the petitioner as Branch Manager, Mundalia Gausu Branch in the year 1985 certain irregularities were reported during the course of inspection and the petitioner was put to notice vide letter dated 17/27.4.1986. The petitioner submitted his reply to the aforesaid notice. The petitioner was placed under suspension in contemplation of the enquiry. The suspension order dated 30.10.1987 was revoked by the office order dated 30.11.1987. However, the disciplinary enquiry against the petitioner continued.
Fresh suspension order dated 18.2.1988 was passed pending enquiry. The petitioner was charge sheeted and the suspension order was lifted by the order dated 12.8.1993 with certain terms and conditions mentioned in the order itself. The petitioner filed a writ petition no. 44311 of 1993 with the prayer for quashing of the charge sheet dated 12.8.1993 and the terms and conditions as laid down in the order dated 12.8.1993 revoking the suspension order dated 18.2.1988. The prayer for quashing of the entire enquiry proceedings was also made in the writ petition. The writ petition was heard and dismissed as premature by the judgment and order dated 30.11.1993 passed by this Court. The enquiry proceeded and the petitioner had participated in the proceedings which were concluded on 6.10.1997. The order dated 7.6.1999 imposing punishment was passed.The punishment awarded to the petitioner is as under:-
"1. The cumulative penalty for all the above, charges will be Recovery of Rs.20,000/-(Rupees twenty thousands only) as pecuniary loss caused to the bank consequent upon the misconducts committed by Mr. Mayank Agarwal as mentioned in the said charge-sheet, be made from pay of Mr. Mayank Agarwal."
"2. The period spent under suspension be treated on duty. However, he will not be entitled to get credit for any type of leave for the period of suspension in his leave account."
"3. Mr. Mayank Agarwal is further warned that in case such type of misconducts are repeated, serious view shall be taken in the matter."
Aggrieved, the petitioner preferred a statutory appeal under Regulation 31 of the Staff Regulations, 1980 before the Board of Directors, Bareilly Kshetriya Gramin Bank, the then bank through proper channel. The appeal was rejected by the order dated 10.1.2001.
The present petition has been filed challenging the order of punishment dated 7.6.1999 passed by the disciplinary authority as also the order dated 10.1.2001 passed by the appellate authority.
Learned counsel for the petitioner while impugning the order of punishment imposed upon the petitioner, drawn attention of the court upon the charges levelled against him in the article of charges. He submits that in the statement of allegations as against the first charge of committing certain acts and commissions by the petitioner it is stated that he had sanctioned 7 loans to beneficiaries at Mundalia Gausa beyond the discretionary lending power of Branch Manager for an individual. He further submits that the table as provided alongwith the statement of allegations which finds place at page 58 of the paper book shows that the loan which was alleged to have been sanctioned in excess of the discretionary lending power of the Branch Manager for an individual was nominal. The petitioner has loaned only approximately Rs.100/- or Rs.400/- in excess of discretionary power as alleged.
As soon as the charge sheet was served upon the petitioner he submitted the representation before the officer asking him to provide certain documents so that he may submit his defence effectively. Several documents were required for the purpose of giving effective reply to the chargesheet and most important document which was required was circular regarding the Branch Manager's discretionary lending power and unit cost of various projects approved by the NABARD. He submits that these documents were never provided to the petitioner despite repeated representations made by him.
The three charges were levelled against the petitioner and among those, only first charge was found to be proved against the petitioner. Charge no. 2 was not proved and the charge no. 3 was proved partly in the enquiry report. So far as charge no. 1 is concerned, the circular which provides the discretionary lending power and unit cost of various projects approved by the NABARD, was not provided to the petitioner. The petitioner was even not permitted to inspect the documents. In view thereof the action of the disciplinary authority in imposing the punishment without furnishing relevant documents is illegal and flagrant violation of principles of natural justice.
He further submits that the appellate authority did not apply its own independent mind and did not advert to the pleadings made by the petitioner that he was not subjected to notice prior to punishment order dated 7.6.1999 nor the enquiry report was supplied to him. The order passed by the appellate authority is non-speaking order and deserves to be set aside.
In a feeble attempt while making the submissions, learned counsel for the petitioner submits that infact no pecuniary loss has been caused to the bank and the punishment of recovery of Rs.20,000/- could not have been inflicted in view of the charges levelled against him.
Repelling the submission of learned counsel for the petitioner, learned counsel for the respondents submits that being a Branch Manager of the bank, the petitioner was under obligation to be aware of his discretionary lending power for an individual. He cannot get away by saying that the applicable circulars issued by the NABARD have not been provided to him by the enquiry officer. The misconduct of the petitioner was of serious nature and the charges against the petitioner were proved beyond doubt in the departmental enquiry. The petitioner was given personal hearing. The enquiry was conducted in proper manner strictly in terms of Staff Service Regulation, 1980. There is no lacuna in the decision making process. The petitioner had acted against the interest of the bank. However, the Chairman had taken a lenient view looking to the young age and long career of the petitioner and instead of dismissing him from service imposed minor punishment of recovery of Rs.20,000/- only as against the pecuniary loss caused to the bank. The other two clauses of the order that no leave shall be credited for the period of suspension and warning that such type of misconduct shall not be repeated in future are no punishment at all.
He further submits that the Board of Directors i.e. appellate authority though found that the charges against the petitioner are of serious nature had upheld the decision taken by the Chairman. The Board of Directors had also considered the appeal sympathetically and instead of dismissing the petitioner from service, minor punishment had been inflicted upon him. The appeal was rightly rejected after giving a careful consideration of the matter. The order passed by the appellate authority cannot be said to be a non-speaking order.
Even otherwise, in view of the fact that the disciplinary enquiry was conducted strictly in accordance with the rules and the petitioner was provided full opportunity of hearing, the decision taken by the disciplinary authority cannot be interfered in exercise of power of this Court under Article 229 of the Constitution of India. The power of judicial review in disciplinary enquiry is limited and scope of judicial review is confined to decision making process only. In the instant matter the decision making process cannot be said to be faulted. The petitioner received fair treatment and the orders have been rightly passed by the competent authority.
Considered the submissions of learned counsel for the parties and perused the record.
The fact that the petitioner has sanctioned the amount beyond the discretionary lending power of the Branch Manager for an individual, could not be assailed before the enquiry officer as indicated in the first charge levelled against him. This apart, the enquiry report appended with the writ petition shows that the enquiry officer had given opportunity of hearing to the petitioner and gave its finding on each charge after consideration of the documentary as well as oral evidences. Out of six charges levelled against the petitioner only one i.e. charge no. 2 was not proved but all other charges were proved and it was found that the act of the petitioner was detrimental to the interest of the bank. He did not used his utmost endeavour to promote the interest of the bank and not acted as a prudent banker. He misused his position as Branch Manager and his acts were of unbecoming of an officer of the bank. The disciplinary authority i.e. the Chairman of the bank passed order after careful perusal of the documentary evidences on record, the finding given by the enquiry officer and the submissions given by the petitioner during the course of personal hearing. He further considered the record of the petitioner and keeping in view of his young age took a lenient view of the matter. The punishment imposed is a minor punishment.
In the instant case, enquiry report dated 16.4.1998 was supplied to the petitioner and the petitioner submitted his reply to the enquiry report on 4.10.1998. In his reply to the enquiry report, the petitioner with reference to charge no. 1 stated that five documents referred by the enquiry officer in his report were not duly proved. He submitted that charge no. 1 was proved on the basis of these five documents which were the circulars issued by the bank to the Branch Managers pertaining to their disbursement power. A perusal of the reply submitted by the petitioner to the enquiry report clearly shows that he did not take the plea that the circulars were not within his knowledge rather submission of the petitioner is that documents refered by the enquiry officer were not proved and therefore could not have been accepted in evidence.
In the memo of appeal filed by the petitioner before the appellate authority, no such allegation has been made that the petitioner was not aware of the circulars which were relied upon by the enquiry officer. On the request made by the petitioner, the disciplinary authority after receipt of the enquiry report gave personal hearing to the petitioner on 10.3.1999. The defence statement of the petitioner during course of personal hearing was considered by the disciplinary authority before passing the order of punishment.
The appellate authority has also considered the matter in a sympathetic manner. The contention of the learned counsel for the petitioner that entire proceedings initiated against him is vitiated only on the ground that he was not provided the copy of the applicable circulars issued by NABARD giving discretionary lending power to the Branch Manager, cannot be accepted in view of the above discussion and the fact that the petitioner being Branch Manager of the bank is under obligation to be diligent. The nature of his work demands vigilance with inbuilt requirement to act carefully. Any carelessness on the part of the Branch Manager who deals with the public money cannot be ignored and invites action.
In view of the fact and the pleadings of the parties, the question which arises for consideration before this Court is that as to whether in the facts and circumstances of the present case, the Court would exercise its jurisdiction under Article 226 of the Constitution of India in favour of the petitioner.
It is well settled that so far as the departmental inquiry and action of competent authorities in dismissing the service of incumbent is concerned the scope of judicial review is confined to the decision making process. Scope of judicial review can not be extended to the examination of correctness or reasonableness of a decision as a matter of fact.
Where the inquiry is conducted on the charges against the public servant, the court is to examine and determine ;
(I) Whether the inquiry 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;
The technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive on the conclusion whether or not the delinquent has committed misconduct.Per Lalit Popli Vs. Canara Bank and others, reported in 2003 (3) SCC, 583.
In fact the petitioner is trying to assail the correctness of findings of disciplinary authorities as if before an appellant forum. The issue was considered by the Apex court in 1992 Supp. (2) SCC 312, H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and others Vs. M/s Gopi Nath & sons and others. Relevant paragraph 8 is as under:
"8...... Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extended to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is corect in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgement not only on the correctness of the decision making process but also on the correctness of the decision itself."
In 1995 (6) SCC 749 , B.C. Chaturvedi Vs. Union of India, the Apex court reiterated the same. The relevant paragraphs 12 and 13 are as under:
"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 inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry 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 inquiry 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 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 re-appreciate 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 inquiry 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 re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry 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 [(1964) 4 SCR 781], this Court held at page728 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."
In recent decisions the apex court has reiterated the scope of judicial review in dealing with departmental inquiries in 2009 (8) SCC 310 State of U.P. and another Vs. Man Mohan Nath Sinha and another. It has been held that it is not open to the High Court to reappreciate and reappraise the evidence led before inquiry officer and examine the finding recorded by the inquiry officer as a court of appeal and reach its own conclusion by restoring the petition and sending the matter back to the High Court, it was observed that High Court fell into grave error in scanning evidence as if it was a court of appeal.
In the said matter, the High Court while examining impugned order formulated the question for consideration as to whether in view of the evidence on record the charge levelled against the delinquent stood proved and further proceeded to appreciate the evidence and set aside the order of dismissal. Relevant paragraphs 13, 14 and 15 are as under:
"13. The aforesaid decisions were noticed by a Constitution Bench of this court in State of Madars V. G. Sundaram, and it has been held that it is not open to the High Court to reappreciate the evidence before the Tribunal and record the conclusion that the evidence does not establish charges against the delinquent. In the words of the Constitution Bench:(AIR p. 1105, paras 9-10) "9. It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a quest before the High Court when exercising its jurisdiction under Article 226 of the Constitution. This view was reiterated in Union of India V. H.C. Goel.
10. It is, therefore, clear that the High Court was in error in re-appreciating the evidence before the Tribunal and recording the conclusion that evidence did not establish the charges against the respondent."
"14.The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in the case of State of Andhra Pradesh And Ors. vs. Chitra Ventaka Rao and this Court held:
"21. .........The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 .
x x x
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishna, AIR 1964 SC 477.
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgement on merits of the decision................."
In another decision in 2010(11) SCC 233 General Manager (p) Punjab & Sindh Bank and others Vs. Daya Singh.Relevant paragraphs 24 and 25 are as under:
"24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge- sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the Inquiry Officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics vs. CCE AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Another vs. State Represented by the Public Prosecutor and Another (2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained. "
"25 As held in T.N. C.S. Corporation Ltd. vs. K. Meerabai (2006) 2 SCC 255 the scope of judicial review for the High Court in departmental disciplinary matter is limited. The observation of this Court in Bank of India v. Degala Suryanayana are quite instructive: SCC pp.768-69, para 11) "11.Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held: (AIR p.. 370,para 23) "23.......... 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."
In view of the above discussion and the fact that the petitioner had participated at every stage of the enquiry proceedings and the disciplinary authority also gave him personal hearing, irresistible conclusion is that the challenge made by the petitioner to the decision making process on the ground of violation of principles of natural justice in not providing the bank's circulars is incorrect and an after thought. The decision of the disciplinary authority as also the appellate authority is based on evidence on record and after due consideration to the defence taken by the petitioner. The Court cannot substitute the view taken by them.
Before parting with the case, we feel it necessary to refer to the judgment of the Apex Court reported in (2005) 7 SCC 435 (State Bank of India & another vs. Bela Bagchi and others) and (2005) 10 SCC 85 (Damoh Panna Sagar Rural Regional Bank & another vs. Munna Lal Jain) in which the Apex Court has laid emphasis on the standards of honesty, devotion, diligence and integrity of a bank officer. "A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in 'Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik', [1996] 9 SCC 69, there is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct."
In view of foregoing discussions, the decision taken by the respondent authorities cannot be said to be faulty. We do not find any good ground to interfere. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 8.11.2012 P.P.