DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS versus AJAI KUMAR SRIVASTAVA on 5 January 2021

[2021] 1 S.C.R. 51

DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY)AND OTHERS

v.

AJAI KUMAR SRIVASTAVA

(Civil Appeal No(s). 17-18 of 2021)

JANUARY 05, 2021

[L. NAGESWARA RAO, HEMANT GUPTA ANDAJAY RASTOGI, JJ.]

Service Law: Bank service – Misappropriation of funds –Dismissal from service – Enquiry officer noticed in his enquiryreport that the respondent delinquent neither produced anydocument nor witness in self-defence and even never requested toallow him to defend him by a representative of his choice – Enquiryofficer examined all the charges and found charges 2 to 7 provedwhile charge no.1 was held to be not proved – Disciplinary authorityrevisited the record of enquiry and while upholding the finding offact in reference to charge no.2-7 disagreed on finding on chargeno.1 and held charge no.1 to be proved – Appellate authority upheldthe finding of the disciplinary authority and confirmed thepunishment of dismissal – High Court set aside punishment ofdismissal holding that disagreement of disciplinary authority oncharge no.1 caused great prejudice to the employee and, that apart,the disciplinary/appellate authority passed a non-speaking orderwhich was in violation of the principles of natural justice – Onappeal, held: Disciplinary authority on receiving the report ofenquiry, if was not in agreement with the finding of enquiry officer,was under an obligation to record its reasons of disagreement andcall upon the delinquent for his explanation in the first place beforerecording his finding of guilt – Thus, the procedure as prescribedby law was not followed and that caused prejudice to the respondentand it was in violation of the principles of natural justice – So faras the finding of guilt recorded by the disciplinary authority inreference to charge No. 1 was concerned, that could not be held tobe justified in holding him guilty – But charge no.1 is severablefrom the other charges (charge nos. 2-7) levelled against therespondent which were found proved by the enquiry officer – If the

A

B

CD

E

F

G

H

Aorder of dismissal was based on the findings of charge no. 1 alone,it would have been possible for the Court to declare the order ofdismissal illegal but finding of guilt being recorded by enquiry officerin his report in reference to charges nos.2-7 and confirmed by thedisciplinary/appellate authority was not liable to be interfered withand those findings established the guilt of grave delinquency.B

Judicial Review: Scope of – Held: Power of judicial reviewof the Constitutional Courts, is an evaluation of the decision-makingprocess and not the merits of the decision itself – It is to ensurefairness in treatment and not to ensure fairness of conclusion.

CConstitution of India: Arts.226, 136 – Power of judicial reviewin the matters of disciplinary inquiries – Constitutional Court whileexercising its jurisdiction of judicial review under Art.226 or Art.136of the Constitution would not interfere with the findings of factarrived at in the departmental inquiry proceedings except in a caseof malafides or perversity, i.e., where there is no evidence to supportDa finding or where a finding is such that no man acting reasonablyand with objectivity could have arrived at that findings and so longas there is some evidence to support the conclusion arrived at bythe departmental authority, the same has to be sustained.

Service Law: Departmental enquiry – It is true that strict rulesEof evidence are not applicable to departmental enquiry proceedings– However, the only requirement of law is that the allegation againstthe delinquent must be established by such evidence acting uponwhich a reasonable person acting reasonably and with objectivitymay arrive at a finding upholding the gravity of the charge againstFthe delinquent employee.

Conclusion

Bank/Banking: Bank service – Misappropriation of funds –Dismissal from service – In banking business absolute devotion,integrity and honesty is a sine qua non for every bank employee – Itrequires the employee to maintain good conduct and discipline andGhe deals with money of the depositors and the customers and if it isnot observed, the confidence of the public/depositors would beimpaired – For this additional reason, High Court erred in settingaside order of dismissal of respondent against whom findings ofthe guilt of grave delinquency were established.

H

Allowing the appeals, the Court

HELD : 1. The power of judicial review in the matters ofdisciplinary inquiries, exercised by the departmental/appellateauthorities discharged by constitutional Courts under Article 226or Article 32 or Article 136 of the Constitution of India iscircumscribed by limits of correcting errors of law or proceduralerrors leading to manifest injustice or violation of principles ofnatural justice and it is not akin to adjudication of the case onmerits as an appellate authority. The Court/Tribunal may interferein the proceedings held against the delinquent if it is, in anymanner, inconsistent with the rules of natural justice or in violationof the statutory rules prescribing the mode of enquiry or wherethe conclusion or finding reached by the disciplinary authority ifbased on no evidence. If the conclusion or finding be such as noreasonable person would have ever reached or where theconclusions upon consideration of the evidence reached by thedisciplinary authority is perverse or suffers from patent error onthe face of record or based on no evidence at all, a writ of certioraricould be issued. [Paras 23, 25][70-E; 71-C-E]

State of Tamil Nadu v. T.V. Venugopalan (1994) 6 SCC302:[1994] 2 Suppl. SCR 411 ; Government of T.N. andAnother v. A. Rajapandian (1995) 1 SCC 216 : [1994]4 Suppl. SCR 707 ; B.C. Chaturvedi v. Union of Indiaand Others (1995) 6 SCC 749 : [1995] 4 Suppl. SCR 644 ; Himachal Pradesh State Electricity Board Limitedv. Mahesh Dahiya (2017) 1 SCC 768 : [2016]9 SCR 879 ; Pravin Kumar v. Union of India and Others(2020) 9 SCC 471 – relied on.

State of Orissa and Others v. Bidyabhushan MohapatraAIR 1963 SC 779 : [1963] Suppl. SCR 648 ; P.D.Agrawal v. State Bank of India and Others (2006) 8SCC 776 : [2006] 1 Suppl. SCR 454 – referred to.

2. It is well settled that where the enquiry officer is not thedisciplinary authority, on receiving the report of enquiry, thedisciplinary authority may or may not agree with the findingsrecorded by the former, in case of disagreement, the disciplinary A

B

C

D

E

F

G

H

Aauthority has to record the reasons for disagreement and afteraffording an opportunity of hearing to the delinquent may recordhis own findings if the evidence available on record be sufficientfor such exercise or else to remit the case to the enquiry officerfor further enquiry. [Para 27][71-G-H; 72-A]

B3. It is true that strict rules of evidence are not applicableto departmental enquiry proceedings. However, the onlyrequirement of law is that the allegation against the delinquentmust be established by such evidence acting upon which areasonable person acting reasonably and with objectivity mayarrive at a finding upholding the gravity of the charge against theCdelinquent employee. It is true that mere conjecture or surmisescannot sustain the finding of guilt even in the departmental enquiryproceedings. [Para 28][72-B-C]

4. If the disciplinary authority was not in agreement withthe finding recorded by the enquiry officer, it was under anDobligation to record its reasons of disagreement and call uponthe delinquent for his explanation in the first place beforerecording his finding of guilt and undisputedly the procedure asprescribed by law was not followed and that has caused prejudiceto the respondent and indeed it was in violation of the principlesEof natural justice. The finding of guilt recorded by the disciplinaryauthority in reference to Charge No. 1 could not be held to bejustified in holding him guilty. But Charge no. 1 in reference towhich the finding recorded by the enquiry officer has beenoverturned by the disciplinary authority is severable from theother charges(Charge nos. 2-7) levelled against the respondentFwhich were found proved by the Enquiry Officer and the findingof fact was confirmed by the disciplinary/appellate authority aftermeeting out objections raised by the respondent delinquent inhis written brief furnished at different stages. [Paras 34, 35][73-G-H; 74-A-C]G

5. If the order of dismissal was based on the findings ofcharge no. 1 alone, it would have been possible for the Court todeclare the order of dismissal illegal but on the finding of guiltbeing recorded by the Enquiry Officer in his report in reference H

A

to charges nos.2-7 and confirmed by the disciplinary/appellateauthority was not liable to be interfered and those findingsestablished the guilt of grave delinquency which was an apparenterror being committed by the High Court while interfering withthe order of penalty of dismissal inflicted upon the respondentemployee. [Para 36][74-C-E]

B

State of Orissa and Others v. Bidyabhushan MohapatraAIR 1963 SC 779 : [1963] Suppl. SCR 648 – followed.

Binny Ltd. v. Workmen (1972) 3 SCC 806 : [1972]3 SCR 518 ; Sawarn Singh and Another v. State of Punjab and Others AIR 1976 SC 232 – relied on.

C

6. In banking business absolute devotion, integrity andhonesty is a sine qua non for every bank employee. It requiresthe employee to maintain good conduct and discipline and hedeals with money of the depositors and the customers and if it isnot observed, the confidence of the public/depositors would beimpaired. It is for this additional reason, High Court hascommitted an apparent error in setting aside the order ofdismissal of the respondent confirmed in departmental appeal.[Para 43][77-A-C]

D

Case Law Reference

E

H

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 17-18of 2021.

From the Judgment and Order dated 13.09.2018 of the High Courtof Judicature at Allahabad in Special Appeal No. 479 of 2018 and SpecialAppeal Defective No. 357 of 2018.B

R. Basant, Sr.Adv., Sanjay Kapur, Ms. Megha Karnwal, ArvindKumar Shukla, Sanjay Kumar Mishra, Nihal Ahmad, Ms. Aswathi M.K.,Advs for the appearing parties.

The Judgment of the Court was delivered by CRASTOGI, J. 1.Leave granted.

2. Dissatisfied with the judgment and order dated 13[th] September,2018 passed by the Division Bench of the High Court of Allahabad, theinstant appeals have been preferred at the instance of the appellant Bank.

3. Brief facts of the case which are relevant for the purpose areDthat the appellant is a statutory body incorporated and constituted underthe State Bank of India Act, 1955. The respondent joined service as aCashier/Clerk in Mumfordganj Branch Allahabad on 07[th] December, 1981.While on duty, a misconduct was committed by him for which he wasplaced under suspension in the first place by order dated 14[th] August,1995 and later the charge-sheet dated 11[th] April, 1996 was served uponEhim detailing seven charges of misappropriation of funds which he hadcommitted in discharge of his duties as an employee of the Bank.

4. It may be relevant to note that for the self-same misappropriationof bank’s money by affording fake credits in his various accountsmaintained at the Branch where he was posted, a criminal case wasFalso instituted against him for offences under Sections 420, 467, 468,471 IPC read with Section 120-B IPC and Section 13(2) read with Section13(1)(d) of Prevention of Corruption Act, 1988.

5. After the charge-sheet dated 11[th] April, 1996 was served, therespondent delinquent submitted his reply dated 08[th] May, 1996 denyingGall the charges. The enquiry officer was thereafter appointed by thecompetent authority to hold enquiry in terms of Bipartite Settlementapplicable for award staff of Nationalized Bank. The respondent hadparticipated in the disciplinary enquiry and the enquiry officer after holdingenquiry in accordance with the procedure prescribed under the BipartiteHSettlement applicable for award staff of Nationalized Bank furnished his report of enquiry dated 22[nd] May, 1999 to the disciplinary authorityholding that Charge No.1 was not proved, at the same time, held theCharge Nos. 2 to 7 proved against him. In his report dated 22[nd] May,1999, it has been noticed by the enquiry officer that respondent delinquentstated in the course of enquiry that he neither wants to say anythingabout the prosecution documents nor he wants to ask any question tothe presenting officer and did not produce any documentary evidence tosubstantiate his statement in defence regarding fictitious credits in hisaccount which was the allegation against him for misappropriation offunds of the Bank and the fact remains that all the allegations levelledagainst the respondent were supported with the documentary evidenceduly audited by the Bank.

6. The extract of the charges with the documents on which theenquiry officer placed reliance and held the charge to be proved afterdiscussion in detail against the respondent are reproduced hereunder:-

On 16.02.1994, saving bank account no.12215 of Shri I.S. Verma(an account holder) was debited with Rs.1,09,600/- and part amountof Rs.89,600/- was credited to his current account No. P-51without the consent of account holder.

To prove the above allegation/charge, the presenting officerproduced the following documents:- PEX-1

Debit voucher dated 16.02.1994 for Rs.1,09,600.00 relating tosavings bank account No.12215 of Shri I.S. Verma.

PEX-2

Current account credit voucher dated 16.02.1994 for Rs.89,600pertaining to current account No. P-15 of Shri Srivastava (E.P.A).

PEX-3

Ledger sheet of current account No. P-51.

The Charge is not proved.

On 25.03.1994, Shri Srivastava entered into a conspiracy withsome staff members at the Branch with a view in defraud the A

B

C

D

EF

G

H

Abank and accordingly a fake debit was raised in branch clearinggeneral account through schedule No.4 for Rs.4,87,300 and thisamount was first posted in saving bank account No.7547 in favorof Shri K.C. Miglani. This amount was subsequently withdrawnin instalments on 25.03.1994 and 04.04.1994 and amount ofRs.89,150 and Rs.10,000 were misappropriated by him throughBcredit to his current account No. P-15 on the aforesaid dates.

To prove the above allegations/charges, the presenting officerproduced the following documents:

PEX-4:CBranch clearing general account schedule No.4 dated 25.03.1994for Rs.4,87,300.

PEX-5:

Saving bank credit voucher dated 25.03.1994 for Rs.4,87,300Dpertaining 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 tosavings bank account No.7547 of Shri K.C. Miglani.

PEX-7:ECurrent account credit voucher dated 25.03.1994 for Rs.89,150pertaining to current account No. P-51 of Shri Ajay KumarSrivastava.

PEX-8: Debit voucher dated 04.04.1994 for Rs.2,40,750 pertainingFto saving bank account No.7547 of Shri K.C. MIglani.PEX-9

Current Account credit voucher dated 04.04.1994 for Rs.10600pertaining to current account No. P-51 of Shri Ajay KumarSrivastava, actually the voucher is for Rs.10000.

GPEX-10

Current account day book dated 04.04.1994.

PEX-11

Ledger sheet of current account No. P-15 of Shri Ajay KumarHShrivastava The Charge is proved.

On 22.09.1994, Shri Srivastava conspired with some staff membersat the branch with a view to defraud the bank and accordingly afake debit of Rs.5,00,000/- was raised in branch’s saving bank a/c and out of the above an amount of Rs.2,00,000/- wasmisappropriated by him through credit to his current account No.P-51.

To prove the above allegation/charge, the presenting officerproduced the following documents:

PEX-12 – Saving Bank day book dated 22.09.1994

PEX-13 – Current A/c day book dated 22.09.1994

PEX-14 – Ledger sheet of current a/c No. P-51 pertaining to ShriAjay Kumar Srivastava.

On 30.12.1994, Shri Srivastava entered into a conspiracy withsome staff members at the branch with a view to defraud theBank and accordingly a fake debit of Rs.5,30,000 was raised inBranch’s current Account and out of the above amount an amountof Rs.2,50,000.00 and Rs.25,000/- were misappropriated by himthrough affording of credit to his current Account No. P-51 andSaving Bank A/c. No.11068 favoring Smt. Rashmi Srivastava (hiswife).

PEX-15 – Debit voucher dated 30.12.1994 for Rs.5,30,000/-pertaining to current account ledger no.2.

PEX-16 – Current A/c day book dated 30.12.1994

PEX-17 – Saving bank credit voucher dated 30.12.1994 Rs.25,000/- pertaining to saving bank a/c no.11068 of Smt. Rashmi Srivastava.

PEX-18 – Ledger sheet of saving bank a/c no.11068 of Smt.Rashmi Srivastava (page no.70/16).

A

B

C

D

E

F

G

H

AThe charge is proved.

Allegation/Charge No.5:

On 30.05.1995, Shri Srivastava fraudulently raised a fake debit ofRs.2,30,000 in the S.B. A.C. No.11068 fvg. Smt. RashmiSrivastava (his wife) wherein no credit balance was availableBand credited to his current account No. P-51 with the above amountwith a view to defraud the Bank.

CPEX-18 – Ledge sheet of saving bank a/c no.11068

PEX-19 – Debit voucher dated 30.05.1995 for Rs.2,30,000/-pertaining to saving bank account no.11068 of Smt. RashmiSrivastava PEX-20 – Current A/c credit voucher dated 30.05.1995DRs.2,30,000/- pertaining to current a/c no. P-51 of Smt. Srivastava.

PEX-21 – Saving bank daybook dated 30.05.1995

E

On 31.05.1995, Shri Srivastava fraudulently raised a fake debit ofRs.3,60,000 in the S.B. A/c No.11068 fvg. Smt. Rashmi Srivastava(his wife) wherein no credit balance was available and got its partamount of Rs.3,00,000 credited to his current account no.P-51with a view to defraud the Bank.

F

To prove the above allegation/charge, the presenting officerproduced the following documents:

PEX-22 – Current A/c credit vouchers dated 31.05.1995 forRs.3,00,000/- pertaining to current a/c no. P-51 of Sri Ajay KumarSrivastava G

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

H

PEX-26 – Current a/c daybook dated 31.05.1995

On 20.10.1993, Shri Srivastava borrowed Rs.35,000.00 from ShriK.C. Miglani S.B. Account No.7547, an account holder at thebranch without the permission of the Bank.

To prove the above allegation/charge, the presenting officerproduced the following documents:

PEX-25A – Photocopy of the ch. No.775157 dated 29.10.1993for Rs.35,000/- PEX-26A – Saving bank credit voucher dated 29.10.1993 forRs.35,000/- pertaining to a/c no.7547

PEX-27 – Debit voucher dated 20.10.1993 for Rs.35,000/-pertaining to saving bank a/c no.7547 of Shri K.C. Miglani.

PEX-28 – Current a/c credit vouchers dated 20.10.1993 forRs.35,000/- pertaining to current a/c no. P-51 of Shri Ajay KumarSrivastava.

7. After copy of the detailed report of enquiry was made available,the disciplinary authority took pains to revisit the report of enquiry andwhile concurring with the finding of fact in reference to Charge Nos.2-7 proved by the enquiry officer disagreed with the finding recorded bythe enquiry officer as of charge no. 1 and assigning his reasons ofdisagreement held the Charge No.1 to be proved and served the copy ofenquiry report dated 29[th] June, 1999 along with his finding ofdisagreement(for charge no. 1) with the prima facie opinion based onthe record of enquiry to the respondent delinquent calling for his writtenexplanation.

8. The reply was submitted by the respondent in reference tocommunication made by the disciplinary authority dated 29[th] June, 1999raising objection to the note of disagreement which was recorded by thedisciplinary authority as of Charge no. 1, at the same time, in referenceto other Charge Nos. 2 to 7 which were held to be proved and primafacie accepted by the disciplinary authority, no specific objection was A

B

C

D

E

F

G

H

62SUPREME COURT REPORTS

Araised of any prejudice being caused during the course of enquiry ordefence in rebuttal not been considered by the enquiry officer or of anybreach of the procedure prescribed in holding disciplinary enquiry orviolation of the principles of natural justice, raised vague objections ofgeneral in nature without supporting any documentary/oral evidence andone of the objection of the respondent delinquent was that there was noBrequirement to hold a disciplinary enquiry when a criminal case wasinstituted and pending trial/investigation by the CBI and the conclusionof departmental enquiry without awaiting the outcome of the investigation/trial instituted against him in a pending criminal case, has caused greatprejudice to him.C

9. Despite no specific objection being raised by the respondentdelinquent in reply to the show-cause notice, still the disciplinary authorityrevisited the record of enquiry including the enquiry report, the explanationfurnished by the respondent while affirming the finding by the enquiryofficer in its report, confirmed its prima-facie opinion which he hasDexpressed in his communication dated 29[th] June, 1999 and in terms ofPara 521(5)(a) of the Sastry Award read with Para 18, 28 of the DesaiAward as modified by the 12[th] Bipartite Settlement dated 14[th] February,1995 between the State Bank of India and All India State Bank of IndiaStaff Federation, confirmed the penalty of dismissal from service by itsorder dated 24[th] July, 1999.E

10. The respondent preferred departmental appeal against hisdismissal from service. A bare perusal of the appeal preferred by therespondent would indicate that it was just a reflection of the generalobjection raised in reply to the show-cause notice with no specificaverment in the appeal as to what was the procedural error beingFcommitted by the enquiry officer in holding disciplinary enquiry or of anyviolation of the principles of natural justice or any prejudice being causedto him of a kind during the course of enquiry or the action being bias ormalafide initiated for certain ulterior reasons if any, and no specificobjection was raised in reference to the charge nos. 2-7 stands provedGagainst him other than general objections which are vague and ambiguouswithout any foundation.

11. The departmental appeal was examined by the appellateauthority and taking note of the record of enquiry, the appellate authoritynoticed the alleged objections raised by the respondent being so vagueHwith no supporting foundation as reflected from para 2 of the order of the appellate authority and after going through record of enquiry andtaking note of the nature of allegations levelled by the respondentdelinquent in his appeal, the appellate authority assigned reasons in itsorder as reflected from para 3(i) to (viii) and finally holding the appealhaving no merit and the punishment being commensurate to the chargeslevelled against him, confirmed the punishment of dismissal which wasthe subject matter of challenge in a writ petition before the High Courtof Allahabad filed at the instance of the respondent delinquent.

12. The learned Single Judge of the High Court although has passeda detailed judgment but the focus was throughout on charge no.1 whichwas not found to be proved by the enquiry officer in his report but thedisciplinary authority recorded its note of disagreement which accordingto the learned Single Judge of the High Court has caused great prejudiceand that apart, the disciplinary/appellate authority has passed a non-speaking order which is in violation of the principles of natural justiceand the view expressed by the learned Single Judge came to be affirmedby the Division Bench of the High Court by its impugned judgment dated13[th] September, 2018, which is the subject matter of challenge beforeus.

13. During the course of arguments, it was brought to our noticethat in the criminal case instituted against the respondent for offencesunder Sections 420, 467, 468, 471 IPC read with Section 120-B IPC andSection 13(2) read with Section 13(1)(d) of Prevention of CorruptionAct, 1988, the respondent employee was held guilty and convicted bythe learned Court of Special Judge, CBI Court No. 1, Lucknow, by ajudgment dated 31[st] May, 2019 and sentenced to ten year rigorousimprisonment with fine and in default to undergo imprisonment of threemonths.

14. Learned counsel for the appellants submits that fair opportunityof hearing was afforded to the respondent delinquent in the course ofenquiry and it was never the case of the respondent that either theprocedure prescribed under the disciplinary rules have not been followedor the enquiry was held by the authority who was not competent underlaw or the findings or conclusions which have been arrived at by theenquiry Officer in his report and confirmed by the disciplinary authorityare not supported by the evidence on record or there was a violation ofthe principles of natural justice. In the absence whereof, the plea raisedby the respondent holding that the disciplinary authority has passed a A

BC

D

EF

G

H

Anon-speaking order without application of mind lacks merit and is notsubstantiated from the material on record.

15. To the contrary, the Enquiry Officer in his detailed reportrecorded cogent reasons in holding the Charge nos. 2-7 proved againstthe delinquent employee. The disciplinary authority while expressing itsBprima facie opinion and after the copy of the enquiry report along withthe tentative view of the disciplinary authority being served and affordinga reasonable opportunity of hearing to the respondent and having takennote of his written reply into consideration, has dealt with so called allegedobjections raised, confirmed its tentative view expressed in upholdingpenalty of dismissal from service after assigning reasons supported byCthe documents on record. In the given circumstances, the order of thelearned Single Judge confirmed in LPA by the Division Bench of theHigh Court is unsustainable in law.

16. Learned counsel further submits that so far as Charge no. 1 isconcerned, it is true that the enquiry officer has not found charge no. 1Dproved but the disciplinary authority has recorded its reasons fordisagreement while expressing a prima facie opinion, a copy of the noteof disagreement recorded of charge no. 1 along with the report of enquirywas served on the delinquent employee, no justification was tendered bythe delinquent respondent in his written reply to the note of disagreementErecorded by the disciplinary authority. Thus, a fair opportunity wasafforded to him and taking assistance of the Constitution Bench Judgmentof this Court in State of Orissa and OthersVs. BidyabhushanMohapatra1which was further considered by this Court inP.D. AgrawalVs. State Bank of India and Others2, learned counsel submitted thatthe order of dismissal based on the finding of Charge nos. 2-7, whichFwere proved by the enquiry officer and confirmed by the disciplinary/appellate authority holds the respondent delinquent guilty of gravedelinquency in upholding the penalty of dismissal and interference in theorder of penalty inflicted upon the respondent delinquent by the HighCourt was not justified and needs interference of this Court.G17. Per contra, learned counsel for the respondent while supportingthe impugned judgment submits that the disciplinary authority reiteratedthe finding recorded by the enquiry officer in his report and failed toexamine the record of enquiry independently and rejected the written 1 AIR 1963 SC 779H2 2006(8) SCC 776

objections raised by the respondent cursorily and inflicted penalty uponhim of dismissal from service by passing a non-speaking order withoutdue application of mind has been rightly interfered by the High Court inthe impugned judgment.

18. Learned counsel further submits that when the enquiry officerhas not found charge no. 1 proved and the disciplinary authority disagreedwith the finding recorded by the enquiry officer in his report, shouldhave served in the first place, a note of disagreement, calling for hisexplanation and only thereafter it was open for him to examine the recordof enquiry independently in taking its decision in accordance with lawand the procedure which was adopted by the disciplinary authority inholding the respondent guilty in reference to Charge no. 1 was not onlya procedural error but is a great prejudice being caused to the respondentand such defect could not have been cured by the post-decisional hearing,which has been rightly upheld by the High Court in the impugned judgmentand needs no interference by this Court.

19. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

20. At the outset, it may be noted that the enquiry officer hasnoticed in his enquiry report that the respondent delinquent neitherproduced any document nor witness in self-defence. At the same time,he never requested to allow him to defend him by a representative of hischoice. He further stated during the course of enquiry that he neitherwanted to say anything about the prosecution documents nor he wantedto ask any question to the presenting officer. Taking note of the recordof enquiry including the documents produced by the presenting officer,brief of the presenting officer, defence and the submission made by therespondent employee, the enquiry officer examined each of the chargenos. 1 to 7 and after detailed analysis, recorded his finding in referenceto each charge separately and found charge no. 1 not proved, at thesame time charges nos. 2-7 were proved based on the documentaryevidence placed on record.

21. The disciplinary authority, after the report of enquiry wasfurnished by the enquiry officer, took pains to revisit the record of enquiryincluding charge-sheet, reply to the charge-sheet, enquiry proceedings,findings of the enquiry officer dated 22[nd] May, 1999, brief of the presentingofficer, brief of the defence (respondent delinquent) and further noticing A

B

C

D

E

F

G

H

A28 documents which were exhibited PEX-1 to PEX-28 relied by thepresenting officer and taking note of the written submissions made bythe respondent employee, after due application of mind recorded its findingin upholding the finding of fact recorded by the enquiry officer in hisreport including the note of disagreement in reference to charge no. 1holding to be proved. The detailed reasons assigned in confirming theBorder of penalty by its order dated 24[th] July, 1999 are as under:- “O R D E R

Staff: AWARD

SRI AJAY KUMAR SRIVASTAVA, CLERKDISCIPLINARY ACTIONC

Placed before me are the submissions/show cause notice datedthe 15[th] July, 1999 of Shri A.K. Srivastava, Cashier-cum-Clerk,under suspension, presently posted at Daryaganj branch in respectof the Disciplinary Authority’s tentative order dated 29.6.1999wherein it was decided to dismiss him without notice for his grossmisconduct relating to the fraudulent transactions perpetrated atMumfordganj branch due to which the bank has sufferedsubstantive loss in addition to loss of public image. It was alsodecided that the period spent by Shri Srivastava as suspended willbe treated as such and no salary and allowance, except thesubsistence allowance already paid, will be payable to him. Theabove order was passed against him on the charges contained inthe charge-sheet dated 11.4.1996 and he was given an opportunityto make submissions, if any, against the above punishment within7 days of its receipt, extended to 15 days on his request, failingwhich it would be deemed that he has nothing to submit in thisregard and final order will be passed without any further referenceto him.

D

E

2. Shri A.K. Srivastava has submitted that it is highly illegal tohave passed the tentative order of dismissal dated 29.6.1999 onthe basis of the findings of the Enquiry Officer without seekinghis comments thereon. In his view, the report of the EnquiryOfficer must have been forwarded to him for seeking hissubmissions, if any, which has not been done. No such procedureis laid down followed in the bank to forward the enquiry report tothe charged employees before finalization of the proposedpunishment. The procedure in this regard has been followed by G

H

enquiry report and related documents have been forwarded tohim along with the tentative order to enable him to submit hisdefence as to why the proposed punishment should not be imposedon him as per the system and procedure in the bank.

3. His allegation that prosecution documents had not been givento him earlier which deprived him of the reasonable opportunityof proving himself not guilty as not based on facts as all thedocuments had been made available to him for perusal/commentsduring the enquiry proceedings. The copies of the enquiryproceedings had been given to him on the same day on theconclusion of the day’s proceedings and the allegation has nosubstance. On the perusal of the page 16 and 17 of the enquiryproceedings, it is evident that the Enquiry Officer had asked ShriSrivastava whether he wants to say anything regarding theprosecution documents to which he had replied in the negative, hehad also stated that he will submit his defence brief within a week,for the receipt of the prosecution brief. Likewise the EnquiryOfficer has already clarified on the points raised by Shri Srivastavain his letter dated 10.11.1998 which has been found by myself-explicit and satisfactory.

4. The other points raised by Shri Srivastava in his submissiondated 15.7.1999 sent to the Disciplinary Authority as ‘show causenotice’ are found irrelevant after close scrutiny. The enquirystarted on 2.11.1997 and Shri Srivastava neither asked anydocument not desired to produce any witnesses/defence evidence,during the enquiry proceeding till its conclusion on 12.5.1998.However, when he left that the prosecution has produced enoughevidences as per enquiry proceedings which will prove hisinvolvement in the conspiracy to defraud the bank, he startedlevelling the baseless allegations against the bank to delay thedecision against him.

5. I have perused all the relevant documents again including theenquiry report, his letters dated 10.11.1998 and 15.12.1998 anddo not find any substance for re-opening the enquiry as ShriSrivastava had already been given ample opportunity to defendhimself. The proposed punishment is commensurate to the chargeslevelled and proved against him as discussed in detail in tentativeorder. I, therefore, confirm my tentative order dated 29.6.1999 to A

BC

D

E

F

GH

dismiss Shri Ajay Kumar Srivastava without notice in terms ofpara 521(5)(a) of the Sastry Award read with para 18,28 of theDesai Award as modified by the 12[th] Bipartite Settlement dated14.2.1995 made between State Bank of India and All India StateBank of India Staff Federation. I also order that the period spentby Shri Srivastava as suspended be treated as such and no salaryand allowances, except the subsistence allowance already paid,will be payable to him.

A

B

I order accordingly.

Sd/-CASSTT. GENERAL MANAGER(IV)DISCIPLINARY AUTHORITY,DATED: 24[th] July, 1999"

22. The departmental appeal which was preferred by therespondent employee was revisited by the appellate authority and takingnote of the objections, all have been separately dealt with by the appellateDauthority in its order dated 15[th] November, 1999, the relevant portion ofwhich is extracted as under:- “3. In order to examine the aforesaid points by the appellant, Ihave gone through the charge-sheets, reply of charge-sheetssubmitted by the charged employee, enquiry proceedings, findingsof the Enquiry Officer, tentative order dated the 29[th] June, 1999,final order dated the 24[th] July, 1999, his service sheet and otherrelevant records of the case. My views are as under:- E

i) Almost all points raised by Shri Srivastava, as above, havebeen suitably replied in the Enquiry Officer’s reply and in thefinal order dated the 24[th] July, 1999. The clarification givenare quite reasonable and I am satisfied with the same. Hewas given full opportunity to defend himself and there was noground for re-opening the enquiry. The charges contained inthe charge-sheet were not vague, as alleged by him, and allthe charges, except one, have been proved in the enquiry.

F

G

ii) The contention of Shri Srivastava that the Enquiry Officershould be above the rank of the Disciplinary Authority, theofficer who has issued the charge-sheet, is not correct. TheDisciplinary Authority should be above the rank of the Enquiry H

Officer who has been appointed by him for fact finding on hisbehalf.

iii) There is no bar on initiation of the domestic enquiries, if thepolice/investigating agency do not submit their reports within areasonable time and Supreme Court has given severaljudgments in this regard.

iv) The Disciplinary Authority reviews the pending suspensioncases and can order reinstatement of any suspended employeeafter the review. Two employees had been reinstated as thecharges against them were not serious enough.

v) The charges of double standards and discriminatorytreatment are not correct as disciplinary proceedings have beeninitiated against all the erring employees/officers and thepenalties have been imposed on the basis of the EnquiryOfficer’s report and due consideration of the malafide/bonafideconduct of the employees. Supplementary charge-sheets havealready been served on some of the employees against whompenalties have been imposed on the basis of earlier charge-sheets.

vi) The payment of suspension period has not been made, interms of their service rules, to any charge-sheeted employeeand none has been discriminated.

vii) The appellant has already accepted that he prepared totake vouchers without any real cash/transfer transaction forregularizing his overdrawn current account and deposit offraudulently drawn amount partly cannot absolve him ofperpetration of fraudulent transactions and none had promisedhim penalty short of dismissal.

viii) Non-reply of his letters/representations, meant for delayin the domestic enquiry and resultant punishment, cannot betreated as violation of natural justice. The enquiry started on30.11.1997 and he defended his case himself while othercharged employees opted for defence representative. Itappears that he could not get any representative to defend hiscase in view of serious charges against him. He neither askedany document nor desired to produce any witness/defence AB

C

DE

F

G

H

SUPREME COURT REPORTS

evidence during the enquiry proceedings till its conclusion on12.5.1998. When he felt that the prosecution has producedenough evidences as per enquiry proceedings which will provehis involvement in the conspiracy to defraud the bank, he startedlevelling the baseless allegations against the bank to delay thedecision against him.

A

B

4. Thus, the points raised by Sri Srivastava in his appeal have nomerit. The punishment ordered by the Disciplinary Authority iscommensurate to the charges levelled against him and thecontention of the appellant does not hold good in view of thecharges proved otherwise as discussed in the precedingCparagraphs. After careful consideration of the matter in its entirety,I am of the view that the Disciplinary Authority is fully justified inawarding the punishment of dismissal without notice and treatingthe period spent by Shri Srivastava as suspended as such and nopayment of salary and allowances, except the subsistenceDallowance already paid, to him. I, therefore, hold the order of theDisciplinary Authority.

I order accordingly.”

23. The power of judicial review in the matters of disciplinaryinquiries, exercised by the departmental/appellate authorities dischargedEby constitutional Courts under Article 226 or Article 32 or Article 136 ofthe Constitution of India is circumscribed by limits of correcting errorsof law or procedural errors leading to manifest injustice or violation ofprinciples of natural justice and it is not akin to adjudication of the caseon merits as an appellate authority which has been earlier examined byFthis Court in State of Tamil Nadu Vs. T.V. Venugopalan3 and later inGovernment of T.N. and Another Vs. A. Rajapandian4and furtherexamined by the three Judge Bench of this Court in B.C. ChaturvediVs. Union of India and Others5 wherein it has been held as under:- “13. The disciplinary authority is the sole judge of facts. WhereGappeal is presented, the appellate authority has coextensive powerto reappreciate the evidence or the nature of punishment. In adisciplinary enquiry, the strict proof of legal evidence and findingson that evidence are not relevant. Adequacy of evidence or 3 1994(6) SCC 3024 1995(1) SCC 216H5 1995(6) SCC 749

reliability of evidence cannot be permitted to be canvassed beforethe Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR718] this Court held at p. 728 that if the conclusion, uponconsideration of the evidence reached by the disciplinary authority,is perverse or suffers from patent error on the face of the recordor based on no evidence at all, a writ of certiorari could be issued.”

24. It has been consistently followed in the later decision of thisCourt in Himachal Pradesh State Electricity Board Limited Vs.Mahesh Dahiya6and recently by the three Judge Bench of this Courtin Pravin Kumar Vs. Union of India and Others7.

25. It is thus settled that the power of judicial review, of theConstitutional Courts, is an evaluation of the decision-making processand not the merits of the decision itself. It is to ensure fairness in treatmentand not to ensure fairness of conclusion. The Court/Tribunal mayinterfere in the proceedings held against the delinquent if it is, in anymanner, inconsistent with the rules of natural justice or in violation of thestatutory rules prescribing the mode of enquiry or where the conclusionor finding reached by the disciplinary authority if based on no evidence.If the conclusion or finding be such as no reasonable person would haveever reached or where the conclusions upon consideration of the evidencereached by the disciplinary authority is perverse or suffers from patenterror on the face of record or based on no evidence at all, a writ ofcertiorari could be issued. To sum up, the scope of judicial review cannotbe extended to the examination of correctness or reasonableness of adecision of authority as a matter of fact.

26. When the disciplinary enquiry is conducted for the allegedmisconduct against the public servant, the Court is to examine anddetermine: (i) whether the enquiry was held by the competent authority;(ii) whether rules of natural justice are complied with; (iii) whether thefindings or conclusions are based on some evidence and authority haspower and jurisdiction to reach finding of fact or conclusion.

27. It is well settled that where the enquiry officer is not thedisciplinary authority, on receiving the report of enquiry, the disciplinaryauthority may or may not agree with the findings recorded by the former,in case of disagreement, the disciplinary authority has to record thereasons for disagreement and after affording an opportunity of hearing 6 2017(1) SCC 768

7 2020(9) SCC 471

AB

CD

E

F

G

H

Ato the delinquent may record his own findings if the evidence availableon record be sufficient for such exercise or else to remit the case to theenquiry officer for further enquiry.

28. It is true that strict rules of evidence are not applicable todepartmental enquiry proceedings. However, the only requirement ofBlaw is that the allegation against the delinquent must be established bysuch evidence acting upon which a reasonable person acting reasonablyand with objectivity may arrive at a finding upholding the gravity of thecharge against the delinquent employee. It is true that mere conjectureor surmises cannot sustain the finding of guilt even in the departmentalenquiry proceedings.C

29. The Constitutional Court while exercising its jurisdiction ofjudicial review under Article 226 or Article 136 of the Constitution wouldnot interfere with the findings of fact arrived at in the departmentalenquiry proceedings except in a case of malafides or perversity, i.e.,where there is no evidence to support a finding or where a finding isDsuch that no man acting reasonably and with objectivity could have arrivedat that findings and so long as there is some evidence to support theconclusion arrived at by the departmental authority, the same has to besustained.

30. In the case on hand, the charge-sheet was served upon theErespondent delinquent for misappropriation of public funds by affordingfake credits in his various accounts maintained at the branch where hewas serving (Mumfordganj Branch) during the relevant period. In all, 7charges were levelled against him of grave misconduct which he hadcommitted in discharge of his official duty and after affording anFopportunity of hearing to the respondent delinquent and due complianceof the principles of natural justice, the enquiry officer in his report whiledealing with the preliminary objections raised by the respondent delinquentspecifically indicated that the details of enquiry report contained 22 pagesalong with documents produced by the presenting officer marked asPEX-1 to PEX-28 to establish the allegations/charges levelled againstGthe respondent delinquent who neither produced any document norwitness in his defence. It was further indicated that the respondentstated in the course of enquiry that he neither wants to say anythingabout the prosecution document nor he wants to ask any question to thepresenting officer and never requested to seek permission to defend theHrepresentative of his choice.

31. After affording an opportunity of hearing at the conclusion ofthe departmental enquiry, along with the written note submitted by thepresenting officer and by the respondent delinquent, the enquiry officermarshalled the record of enquiry and based on the documentary evidenceproduced by the presenting officer in reference to each charge recordeda finding in holding charge no.1 not proved and charges nos. 2-7 stoodproved against the delinquent respondent.

32. It was later revisited by the disciplinary authority and apartfrom the note of disagreement in reference to charge no. 1, the disciplinaryauthority accepted the finding of fact recorded by the enquiry officer inhis report for charge nos. 2 to 7 and with its prima facie opinion, calledupon the respondent to submit his explanation and after affording anopportunity of hearing and dealing with the objections raised by therespondent in his written reply expressed its brief reasons while upholdingthe finding recorded by the enquiry officer in his report and confirmedits opinion of inflicting penalty of dismissal from service by order dated24[th] July, 1999 and the appellate authority also later revisited on theappeal being preferred and after assigning reasons confirmed the findingof fact in upholding the order of penalty inflicted upon the respondentdelinquent.

33. The submission which persuaded the High Court in theimpugned judgment is basically for two reasons. Firstly, before the findingof disagreement being recorded by the disciplinary authority in referenceto Charge no. 1, fair opportunity of hearing was not afforded to therespondent delinquent and that has caused prejudice to him. Secondly,the disciplinary authority/appellate authority has not examined the recordof disciplinary enquiry independently and passed a non-speaking orderwithout due application of mind and this what prevailed upon the HighCourt in the impugned judgment in setting aside the penalty inflictedupon the respondent delinquent.

34. The submission which was made in regard to the note ofdisagreement not being served upon the respondent delinquent as toCharge no. 1 is concerned, this Court do find substance to hold that thedisciplinary authority on receiving the report of enquiry, if was not inagreement with the finding recorded by the enquiry officer, was underan obligation to record its reasons of disagreement and call upon thedelinquent for his explanation in the first place before recording his findingof guilt and indisputedly the procedure as prescribed by law was not AB

C

D

EF

G

H

Afollowed and that has caused prejudice to the respondent and indeed itwas in violation of the principles of natural justice. We are of theconsidered view that so far as the finding of guilt recorded by thedisciplinary authority in reference to Charge No. 1 is concerned, thatcould not be held to be justified in holding him guilty.

B35. But this may not detain us any further for the reason thatCharge no. 1 in reference to which the finding recorded by the enquiryofficer has been overturned by the disciplinary authority is severablefrom the other charges(Charge nos. 2-7) levelled against the respondentwhich were found proved by the Enquiry Officer and the finding of factwas confirmed by the disciplinary/appellate authority after meeting outCobjections raised by the respondent delinquent in his written brief furnishedat different stages.

36. If the order of dismissal was based on the findings of chargeno. 1 alone, it would have been possible for the Court to declare theorder of dismissal illegal but on the finding of guilt being recorded by theDEnquiry Officer in his report in reference to charges nos.2-7 andconfirmed by the disciplinary/appellate authority was not liable to beinterfered and those findings established the guilt of grave delinquencywhich, in our view, was an apparent error being committed by the HighCourt while interfering with the order of penalty of dismissal inflictedEupon the respondent employee.

37. It is supported by the judgment of the Constitution Bench ofthis Court inState of Orissa and Others Vs. Bidyabhushan Mohapatra(supra) wherein it has been observed as under:- “9. The High Court has held that there was evidence to supportFthe findings on heads (c) and (d) of Charge (1) and on Charge(2). In respect of Charge 1(b) the respondent was acquitted bythe 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”. TheGrecommendation of the Tribunal was undoubtedly founded on itsfindings on Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). TheHigh Court was of the opinion that the findings on two of theheads under Charge (1) could not be sustained, because in arrivingat the findings the Tribunal had violated rules of natural justice.The High Court therefore directed that the Government of the H

State of Orissa should decide whether “on the basis of thosecharges, the punishment of dismissal should be maintained or elsewhether a lesser punishment would suffice”. It is not necessaryfor us to consider whether the High Court was right in holdingthat the findings of the Tribunal on Charges 1(a) and 1(e) werevitiated for reasons set out by it, because in our judgment theorder of the High Court directing the Government to reconsiderthe question of punishment cannot, for reasons we will presentlyset out, be sustained. If the order of dismissal was based on thefindings on Charges 1(a) and 1(e) alone the Court would havejurisdiction to declare the order of dismissal illegal but when thefindings of the Tribunal relating to the two out of five heads of thefirst charge and the second charge was found not liable to beinterfered with by the High Court and those findings establishedthat the respondent was prima facie guilty of grave delinquency,in our view the High Court had no power to direct the Governorof Orissa to reconsider the order of dismissal….”

38. This was further considered by this Court in Binny Ltd. Vs.Workmen8 as under:- “..It was urged that the Court should not have assumed that theGeneral Manager would have inflicted the punishment of dismissalsolely on the basis of the second charge and consequently thepunishment should not be sustained if it was held that one of thetwo charges on the basis of which it was imposed wasunsustainable. This was rejected following the decision in Stateof Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779],where it was said that if an order in an enquiry under Article 311can be supported on any finding as substantial misdemeanour forwhich punishment imposed can lawfully be given, it is not for theCourt to consider whether that ground alone would have weighedwith the authority in imposing the punishment in question. In ourview that principle can have no application to the facts of thiscase. Although the enquiry officer found in fact that the respondenthad behaved insolently towards the Warehouse Master, he didnot come to the conclusion that this act of indiscipline on a solitaryoccasion was sufficient to warrant an order of dismissal….”

ABC

D

EF

G

A39. Yet again, inSawarn Singh and Another Vs. State of Punjaband Others9, this Court held:-

19. In view of this, the deficiency or reference to some irrelevantmatters in the order of the Commissioner, had not prejudiced thedecision of the case on merits either at the appellate or revisionalBstage. There is authority for the proposition that where the orderof a domestic tribunal makes reference to several grounds, somerelevant and existent, and others irrelevant and non-existent, theorder will be sustained if the Court is satisfied that the authoritywould have passed the order on the basis of the relevant andexisting grounds, and the exclusion of irrelevant or non-existingCgrounds could not have affected the ultimate decision [see Stateof Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779].

40. The Constitution Bench has clearly laid down that even afterthe charges which have been proved, justify imposition of penalty, theCourt may not exercise its power of judicial review.D

41. So far as the submission which has prevailed upon the HighCourt holding that the order passed by the disciplinary/appellate authoritywas a non-speaking order passed with non-application of mind, in ourconsidered view, is not factually supported by the material available onrecord.E

42. In the case on hand, the disciplinary/appellate authority wasnot supposed to pass a judgment however while passing the order dated24[th] July, 1999, the disciplinary authority had taken note of the record ofenquiry, including self-contained enquiry report dated 22[nd] May, 1999and his prima facie opinion dated 29[th] June, 1999 which was madeFavailable to the respondent employee and after affording reasonableopportunity of hearing and meeting out the written objections raised bythe delinquent, expressed its brief reasons in upholding the finding ofguilt and penalty of dismissal by its order dated 24[th] July, 1999. Thatapart, the appeal preferred by the respondent delinquent was examinedGby the appellate authority as it reveals under para 3(i) to (viii) in upholdingthe finding of guilt recorded by the enquiry officer in his report dismissingthe respondent employee from service, rejected by order dated 15[th]November, 1999. After detailed discussion, we are unable to accept thefinding recorded by the High Court under its impugned judgment setting H9 AIR 1976 SC 232

aside the orders passed by the disciplinary/appellate authority whichdeserves to be set aside.

43. Before we conclude, we need to emphasize that in bankingbusiness absolute devotion, integrity and honesty is a sine qua non forevery bank employee. It requires the employee to maintain good conductand discipline and he deals with money of the depositors and the customersand if it is not observed, the confidence of the public/depositors wouldbe impaired. It is for this additional reason, we are of the opinion thatthe High Court has committed an apparent error in setting aside theorder of dismissal of the respondent dated 24[th] July, 1999 confirmed indepartmental appeal by order dated 15[th] November, 1999.

44. Consequently, the appeals deserve to succeed and areaccordingly allowed and the judgment of the High Court impugned dated13[th] September, 2018 is hereby set aside. No costs.

45. Pending application(s), if any, stand disposed of.

Devika Gujral

Appeals allowed.

B

C

D

E

F

G

H