UNITED BANK OF INDIA versus BISWANATH BHATTACHARJEE on 31 January 2022

SUPREME COURT REPORTS

[2022] 3 S.C.R.

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UNITED BANK OF INDIA

v.

BISWANATH BHATTACHARJEE

(Civil Appeal No. 8258 of 2009)

BJANUARY 31, 2022

[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]

Service law – Reinstatement – Respondent-Bank employee wasappointed by the bank, he served as a manager of a bank’s branch– Disciplinary proceedings were initiated against him alleging hisCcomplicity in five major charges during his posting as manager –Charges related to the non-recording of subsidy amount in subsidyregister; deposit of subsidy in the account of twelve fictitious personsin connection with the Project of Central Government;misappropriation of loan and subsidy amount; removal of theDrelevant documents to conceal the misappropriation and that therespondent in connivance with others transferred amounts throughthree demand draft bank – Enquiry was conducted – Enquiry officerfound that respondent was guilty of the charges – DisciplinaryAuthority accepted the report and terminated his employment –Appellate Authority dismissed the appeal – Respondent approachedEHigh Court – Writ petition was dismissed by the Single Bench of theHigh Court – The Division Bench allowed the appeal and set asidethe orders of the Appellate and disciplinary authorities – On appeal,held: In view of evidence of MW 1 and in absence of anydocumentary evidence showing that the respondent was having theFprimary responsibility to maintain the subsidy register charge ofnon-recording of subsidy amount in subsidy register, not proved –Charge that respondent deposited subsidy in the account of twelvefictitious persons, Bank had relied on disposition of 7 persons, theywere identified by MW 2 but neither his identity nor the identity ofthe 7 persons was proved, additionally there was no material linkingGthe respondent with the applications of introducing the borrowers,etc. – No evidence of involvement of the respondent – Charge ofmisappropriation of entire loan and subsidy amount was based onconfessional statement, the said documentwas not exhibited andundeniably it was not signed – Document can bound authors butHnot the third parties like respondent – As far as the charge of removing the documents is concerned, there is no evidence to showthat the respondent has removed them – Charge of transferringamounts through three demand draft was concerned, there was nomaterial evidence to suggest the same – Judgment of the DivisionBench of the High Court upheld – Respondent reinstated.

Dismissing the appeal, the Court

Conclusion

HELD:1. It was seen that MW 1, the management witness,who deposed about the procedure in the bank, for recordingentries in the subsidy register, clearly stated that at the relevanttime, some entries were made by the respondent, and some byMMS, who “used to maintain the subsidy register on mostoccasions.” He also deposed that it was MMS’s duty as the cashierto maintain the subsidy register. MMS failed to discharge thatduty. In view of this evidence, and no contrary documentaryevidence casting the primary responsibility to maintain the subsidyregister on the respondent, the impugned judgment, in this court’sopinion, cannot be faulted with in concluding that there was nomaterial to prove the first charge against the employee. Asregards the second charge of misappropriation of subsidy amountfrom twelve individuals, whose names were fraudulentlyintroduced, the bank relied on the depositions of seven persons.They were identified by MW2, himself at the time Pradhan,Chandabila Gram Panchayat. MW 2’s identity was challenged atthe outset by the respondent; he did not produce any identityproof. The enquiry officer did not rule on this. The impugnedjudgment concluded that in the absence of proof of HB’s identity,and any independent material, with respect to the seven allegedbeneficiaries, their identity was not independently proved.Additionally, there had to be some material, linking the employee(respondent) with the applications, introducing the borrowers,etc. MW-1, the subsequent manager, clearly deposed in reply toa query (question no. 8) as to who used to “identify the borrowers”before sanction and disbursement of IRDP loans, that the“Pradhan/Member of Gram Panchayat” used to identify thebeneficiaries. Such being the case, the involvement of therespondent employee had to be shown by more definitive A

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Aevidence. It is again a matter of record, that the then Pradhan ofthe Gram Panchayat, identified the borrowers. In thesecircumstances, even in departmental proceedings, there had tobe some overt evidence, and not mere suspicion, to support avalid finding of complicity of the respondent. In thesecircumstances, the impugned judgment cannot be faulted with inBits findings on the second charge. [Para 21][1003-E-H; 1004-A-D]

2. The third charge of misappropriation of the entire loanand subsidy amount in connivance with SKD and MMS was basedon a confessional statement (document ‘X’). In the present case,Chowever, the confessional statement was not by the respondent.Those who authored the confession, did not depose in the enquiry.Furthermore, no witness who heard the authors of the confession,deposed to it. At best then, that document bound the authors,not third parties, like the respondent. The enquiry officer clearlyDerred by relying on such extraneous matters, as the respondentcould not be made a scapegoat for the confession of others,especially with regard to his role. The bank’s charge about hiscomplicity had to be proved by evidence. This document,containing others’ confession, could not have been used againsthim. [Paras 22, 23][1004-D-E; 1006-C-E]

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3. As far as the other two charges go, the division benchcorrectly held that there was no evidence to show that therespondent had removed the documents, from the bank.Importantly, he was charged seven years after the allegedincident; by that time other managers had taken over the branch.FAs regards the last charge of transferring amounts through threedemand drafts from the account of MMS to Joint S.S. Account ofHB on 28.06.94 was concerned, the enquiry officer noted that,“Sri HB in his evidence avoided the matter for some reasons bestknown to him.” In the absence of any other material, the findingGthat the amounts had been misappropriated by the respondent,who in connivance with MMS, and SKD, ensured that the loancomponent was returned to the bank, cannot be said to have beenestablished. [Para 24][1006-E-G]

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Union of India v. H.C. Goel [1964] 4 SCR 718 ; T.N.C.S.Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255; B.C.Chaturvedi v. Union of India (1995) 6 SCC 749 : [1995]4 Suppl. SCR 644; Bank of India v. DegalaSuryanarayana (1999) 5 SCC 762 : [1999] 3 SCR 824;Punjab & Sind Bank v. Daya Singh (2010) 11 SCC233 : [2010] 9 SCR 71; Moni Shankar v. Union of India(2008) 3 SCC 484 : [2008] 3 SCR 871; State Bank ofBikaner and Jaipur v. Nemi Chand Nalwaya (2011) 4SCC 584 : [2011] 3 SCR 589; Roop Singh Negi v.Punjab National Bank (2009) 2 SCC 570 : [2008] 17SCR 1476; J.D. Jain v Management of State Bank ofIndia 1982 (1) SCC 143 : [1982] 2 SCR 227; StateBank of India v Hemant Kumar 2011 (2) SCC 22 :[2011] 4 SCR 280, In Administrative Law, 2[nd] edn., p.584 – relied on.

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UP State Road Transport Corporation v Har NarainSingh (1998) 9 SCC 220; State Bank of India v RamDinkar Punde (2006) 7 SCC 212: [2006] 4 Suppl. SCR511; Government of A.P & Ors. v Mohd. Narsulla Khan(2006) 2 SCC 373: [2006] 1 SCR 911; Sher Bahadurv.Union of India & Ors (2002) 7 SCC 141 : [2002] 1Suppl. SCR 568; Narinder Mohan Arya v United IndiaInsurance Co. Ltd (2006) 4 SCC 713: [2006] 3 SCR932 – referred to.

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Case Law Reference

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[2022] 3 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8258of 2009.

CFrom the Judgment and Order dated 16.12.2008 of the High Courtof Calcutta at Calcutta in FMA No.2696 of 2007.

Rajesh Kumar Gautam, Anant Gautam, Nipun Sharma, MadhurTewatia for M/s Mitter & Mitter Co., Advs. for the Appellant.

Biswaroop Bhattacharya, Kunal Chatterji, Ms. MaitrayeeDBanerjee, Partha Sil, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The appellant (hereafter called “the bank”) is aggrieved by aEjudgment of the Calcutta High Court[1]. By the impugned judgment, thedivision bench set aside the decision of a learned single judge of theHigh Court; the single judge had dismissed the challenge by the respondent(writ petitioner- hereafter called “the employee”) to his dismissal fromthe bank’s service.

F2. The employee was initially appointed as a cashier-cum-clerkby the bank, on 18.01.1971. Later, he was promoted to JuniorManagement Officer Grade Scale-1. He served as branch manager ofthe bank’s Chandabila branch from 14.12.1988 to 30.05.1990. Disciplinaryproceedings were initiated against him when a charge sheet on 23.10.1997alleging his complicity in five major charges (stated in paragraph 15Gbelow) was issued by the bank. The charge sheet was issued sevenyears after he was transferred from the Chandabila branch. During thistime several audits were condcted in terms of the norms stipulated bythe Reserve Bank of India.

H1 Dated 16.12.2008 in FMA 2696/2007.

H1 Dated 16.12.2008 in FMA 2696/2007.

3. The allegations against the employee pertained to the periodwhen he was posted as Manager in the said Chandabila branch. Thecharge sheet alleged that he disbursed loan in favour of twelve fictitiouspersons in connection with the Integrated Rural Development Project(hereafter called “IRDP”) introduced by the Central Government. Theloan had two components wherein 50% i.e., 5,000/- was repayableterm and the remaining 50% i.e., 5,000/- was subsidy. In terms of thescheme, 93 applications were received which were to be examined andthe applicants identified on the basis of joint inspection by the bank andthe Gram Panchayat concerned. Once the identified applications wereforwarded to the District Rural Development Agency (hereafter called“DRDA”) the latter had to submit the subsidy amount. The bank allegedthat the applications were forwarded to DRDA which in turn released4,68,833/- towards subsidy. However, the bank’s subsidy registerreflected only 4,08,833/-, and did not reflect the remainder of 60,000/- along with the names of the twelve beneficiaries who purportedlyreceived the said amount. The bank also alleged that the loan registershowed that the loan and the subsidy was given to twelve beneficiariesagainst SSI account nos. 45/90 - 56/90. The employee / respondent deniedthe allegations. Other charges were that the employee, in connivancewith another employee, deliberately ensured that the relevant paperswere missing; more seriously it was alleged that the amount of 60,000/- forming the subsidy component, (of the total 1,20,000/- disbursed tothe beneficiaries) was misappropriated. The employee denied theseallegations. The bank proceeded to conduct an enquiry.

4. The enquiry officer submitted his report on 05.05.2001. Thereport, inter alia, held that Sri Haradhan Bera, Pradhan of ChandabilaGram Panchyat, identified those persons claiming to be beneficiaries, inthe enquiry. The enquiry officer relied on the evidence of sevenbeneficiaries, who deposed that no loan amount was disbursed, and thatthey had not received any reminder or letter from the bank, regardingreturn of loan amount and had not affixed their thumb impressions on the forms. The report also indicted the employee / respondent fortransferring the amounts to Sri Madan Mohan Saha, another employee(CCG) of the bank. Furthermore, the report placed strong reliance on aconfessional statement made by others charged, including Sri SubhenduDash, Ex-Pradhan of Chandabila at the time of the incident (documentX, photocopy of the alleged confession dated 03.03.1994). The enquiryofficer therefore, found that the employee was guilty of the charges.

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AThe report noted, interestingly, that the loan amount (i.e., 60,000/- outof 1,20,000/-) was deposited in the account of the bank, and that thebalance was misappropriated.

5. By an order dated 07.10.2002, the Disciplinary Authority,accepted the report, and, relying on the past conduct of the respondent,Bterminated his employment. The employee appealed this order; theappellate authority however, dismissed the appeal by order dated28.04.2003. The aggrieved employee approached the Calcutta High Court,under Article 226 of the Constitution.[2] By a judgment and order[3] thatwrit petition was rejected. The employee then filed an appeal. By theimpugned order, the division bench allowed that appeal, and set aside theCorders of the appellate and disciplinary authorities.

Contentions of the bank

Arguments

Contentions of the bank

6. It is argued on behalf of the bank that the High Court re-appreciated the evidence and altered the finding on facts of the disciplinaryauthority on the ground of insufficiency of evidence. This was contraryDto settled proposition that courts, in judicial review, cannot weigh theevidence appreciated by a domestic tribunal. It was urged that the HighCourt erred in acting as an appellate authority and such action is in theteeth of law laid down by this court in several decisions, such as UPState Road Transport Corporation v Har Narain Singh[4]; State BankEof India v Ram Dinkar Punde[5]and Government of A.P & Ors. vMohd. Narsulla Khan[6]. Counsel further argued that the impugnedjudgment was in error in holding that the enquiry officer’s finding of guilt,leading to the employee’s dismissal, was not based on any evidence. Itwas argued that the High Court proceeded to appreciate evidence, premisedon which its conclusion about the enquiry report not being based on evidence,Fwas recorded. This approach was unsustainable.

7. It was next urged that the High Court failed to appreciate thatas far as charge no. 1 was concerned, the employee had authenticatedthe entries made by Sri Madan Mohan Saha, ex-CCG and, therefore, hisplea that he could not be faulted with for not maintaining the subsidyGregister, could not be sustained or accepted.

2 W.P. No. 1391 (W)/ 2004.

3 Dated 15.05.2007.

4 1998 (9) SCC 220.

5 2006 (7) SCC 212.H6 2006 (2) SCC 373.

8. It was argued on behalf of the bank that the impugned judgmentcould not be sustained, because its conclusion of inadequate evidence toprove that loan and subsidy had been disbursed to twelve fictitious personswas erroneous. This conclusion was in spite of the fact that sevenindividuals deposed that they had not received any loan and subsidyamount nor did they affix their thumb impression on the applications.Likewise, the court could not have gone into the question of whether theconfession statement of Sri Madan Mohan Saha and Sri Subhendu KumarDas dated 03.03.1994 was not admitted into evidence. This, it wassubmitted, was contrary to the record. Counsel highlighted that thecontents of that confession were not denied by the employee.

9. Learned counsel argued that the impugned judgment waserroneous as it held that the respondent employee had been prejudicedin the enquiry due to non- production of certain documents claimed byhim. Those documents were not produced as they were untraceable inthe branch or regional office. In fact, charge no.4 against the delinquentofficer dealt with unauthorised removal of those very documents.

10. It was lastly urged that the impugned judgment, if allowed tostand, would undermine discipline in banks. Elaborating on this aspect,learned counsel submitted that this court has repeatedly held that publicservants such as bank officials and managers are expected to display adegree of integrity of a higher standard than other employees, given thatthey have to deal with others’ monies. In the present case, the disciplinaryand appellate authorities acted within their rights in considering the record,appreciating the evidence and concluding that there was sufficientmaterial to impose the penalty of dismissal. The High Court set at naughtthis fact appreciation, and based on its re-appreciation of the evidence,set aside the penalty. This, it was urged, would be prejudicial to theinterests of the bank.

Contentions of the employee

11. Learned counsel for the respondent employee, Mr. KunalChatterji, urged this court not to interfere with the impugned judgment.He contended that the employee was found guilty in the enquiryproceedings. Those findings were not based on any evidence and werepurely conjectural. The findings were clearly perverse and therefore,the penalty imposed was not justified or legal. It was urged that thoughseven borrowers deposed favorably as far as the employee wasconcerned, only the Ex-Pradhan deposed against the respondent.However, he was held guilty without independent verification of identity AB

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Aof persons. It was underlined that no evidence was adduced about wholiquidated the loan. The entire conclusions in the enquiry report werebased on surmises.

12. Mr. Chatterji urged that the respondent left the branch in June1990. The chargesheet was issued much later, and the enquiry wasBconducted seven years later. Counsel urged that the managementwithheld documents which were directed to be produced in the enquiry.This caused serious prejudice to the respondent as their production wouldhave vindicated his position. It was submitted that the enquiry officerwas swayed by photostat copy of a document which claimed to be theadmission of guilt of misappropriation of funds signed, by the Ex-PradhanCand ex-cashier Sri Madan Mohan Saha in presence of manager of thebank on 03.03.1994. Those documents were not produced; a photocopywas adduced in the enquiry. Moreover, the respondent employee hadneither signed on it, nor admitted it. Therefore, the consideration of thatdocument to nail the respondent’s guilt was clearly an unreasonable and perverse reason, and thus the respondent could not be bound by theDcontents of that document.

13. Mr. Chatterji argued that though the scope of judicial reviewin departmental proceedings is restricted, clearly where it is shown thatthe outcome of the enquiry is either procedurally unfair or illegal, or itsoutcomes are based on findings that are based on irrelevant facts, withoutEtaking into consideration relevant facts, or are manifestly unreasonable,the court in exercise of its jurisdiction under Article 226 of the Constitution,can (and does) interfere with the punishment imposed.

14. Learned counsel submitted that two persons whose confessionwas allegedly recorded in the document (i.e., Sri Madan Mohan SahaFand Sri Subhendu Kumar Das) were not examined as witnesses to verifyit. Despite these glaring infirmities with respect to the evidence recordedwhich did not point to the respondent’s complicity, he was held guilty.This finding was perverse and not based on sufficient evidence. Counselsubmitted that sufficiency of evidence means existence of some evidencewhich links the charged officer with the misconduct alleged against him.GHe relied on Sher Bahadur v. Union of India & Ors[7]and NarinderMohan Arya v United India Insurance Co. Ltd[8]to urge that the HighCourt could interfere with findings of an enquiry which were not basedon any evidence.

7 (2002) 7 SCC 141.H8 (2006) 4 SCC 713.

15. The division bench, in the impugned order, after consideringthe entire record, noticed the following:

(a) MW 1, Sri Satikinkar Deb, Deputy Manager, Sepai BazarBranch stated that on the basis of the handwriting of the subsidy registerand also from his own experience that Sri Madan Mohan Saha used tomaintain the register on most occasions. There was no evidence that theappellant ever maintained the said register. During enquiry MW 1 statedthat there was authentication of the respondent in some cases and byhimself in many cases in the subsidy register when the amount wasdebited. It was Sri Madan Mohan Saha’s duty as the cashier to maintainthe subsidy register, and he failed to discharge his duty. The said amountwas credited to marginal deposit account. The matter of non-recordingof the said subsidy amount in the subsidy register was due to Sri MadanMohan Saha’s omission. For that irregularity the respondent could notbe held responsible; he did not deliberately conceal the fact with anymalafide intention.

(b) With respect to the charge of depositing subsidy in the accountof twelve fictitious beneficiaries, findings were based on the evidence ofseven of those beneficiaries, whose names were actually shown in therecord. These witnesses denied having received or returned the loans.They were identified by Sri Haradhan Bera (MW2), subsequent Pradhan,Chandabila Gram Panchayat. MW2’s identity was challenged at theoutset by the respondent; he did not produce any identity proof. Thiswas not dealt with by the enquiry officer; and the identity of the sevenborrowers/ beneficiaries was not independently proved.

(c) The third charge of misappropriation of the entire loan andsubsidy amount in connivance with Sri Subhendu Kumar Das and SriMadan Mohan Saha was based on the confessional statement documentmarked ‘X’. That document was not exhibited. The employee was neitherits author, nor signatory. Therefore, the document could not be usedagainst him to fasten him with liability for alleged misappropriation. Thefinding based on a document not even admitted into evidence and notsigned and accepted by the appellant was perverse.

(d) The finding on charge relating to removal of documents wasnot proved, since it was based on no evidence. The respondent wastransferred out of the branch in 1990 and the proceedings were initiatedin 1997. Sri Madan Mohan Saha was working in the branch after the A

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Arespondent’s transfer. So, it could not conclusively be established thatthe respondent removed those documents to conceal the misappropriationand to destroy them.

(e) The division bench also observed that with respect to the lastcharge the enquiry officer recorded that:B

“The Management side could not establish the reason forcrediting of Rs. 34,000.00 on 28.06.94 to different 28 loanaccounts out of the fund transferred from S.S. Account of SriMadan Mohan Saha to Joint S.S. Account of Sri HaradhanBera on 28.06.94. Moreover, Sri Haradhan Bera in hisCevidence avoided the matter for some reasons best known tohim. But for the above, there is no effect on the charge No.5which states only that C.S.O. sent a Demand Draft of Rs.25,000.00 dated 22,04, 1994 and for Rs. 10,000.0 dated30.05.1994 to Shri Madan Mohan Saha and Shri SahaDdeposited the amounts of drafts in his own and joint S.S.Accounts. Thereafter transfer of Rs. 25,000.00 was made fromS.S. Account No. 1110 of Sri Haradhan Bera and ShriPrafullah Mahata on 30.03.1994…”

Discussion and conclusionsE16. In one of the earliest decisions of Union of India v. H.C.Goel[9]relating to departmental proceedings, this court observed thatwhere a public servant is punished for misconduct after a departmentalenquiry is conducted, a clear case where interference under Article 226of the Constitution is warranted is when there is no evidence to establishFthe official’s guilt.

“22.… The two infirmities are separate and distinct though,conceivably, in some cases both may be present. There maybe cases of no evidence even where the Government is actingbona fide; the said infirmity may also exist where theGGovernment is acting mala fide and in that case, theconclusion of the Government not supported by any evidencemay be the result of mala fides but that does not mean that ifit is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue withoutfurther proof of mala fides. That is why we are not preparedto accept the learned Attorney General’s argument that sinceno mala fides are alleged against the appellant in the presentcase, no writ of certiorari can be issued in favour of therespondent.

23. That takes us to the merits of the respondent’s contentionthat the conclusion of the appellant that the third chargeframed against the respondent had been proved, is based onno evidence. The learned Attorney General has stressed beforeus that in dealing with this question, we ought to bear in mindthe fact that the appellant is acting with the determination toroot out corruption, and so, if it is shown that the view takenby the appellant is a reasonably possible view this Courtshould not sit in appeal over that decision and seek to decidewhether this Court would have taken the same view or not.This contention is no doubt absolutely sound. The only testwhich we can legitimately apply in dealing with this part ofthe respondent’s case is, is there any evidence on which afinding can be made against the respondent that Charge 3was proved against him? In exercising its jurisdiction underArticle 226 on such a plea, the High Court cannot considerthe question about the sufficiency or adequacy of evidencein support of a particular conclusion. That is a matter whichis within the competence of the authority which deals with thequestion; but the High Court can and must enquire whetherthere is any evidence at all in support of the impugnedconclusion. In other words, if the whole of the evidence ledin the enquiry is accepted as true, does the conclusion followthat the charge in question is proved against the respondent?This approach will avoid weighing the evidence. It will takethe evidence as it stands and only examine whether on thatevidence legally the impugned conclusion follows or not.Applying this test, we are inclined to hold that the respondent’sgrievance is well founded, because, in our opinion, the findingwhich is implicit in the appellant’s order dismissing therespondent that Charge 3 is proved against him is based onno evidence.”

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A17. Apart from cases of “no evidence”, this court has also indicatedthat judicial review can be resorted to. However, the scope of judicialreview in such cases is limited[10]. In B.C. Chaturvedi v. Union of India[11]a three-judge bench of this court ruled that judicial review is not anappeal from a decision but a review of the manner in which the decisionis made. It is meant to ensure that the individual receives fair treatmentBand not to ensure that the conclusion which the authority reaches isnecessarily correct in the eyes of the court. The court/tribunal in itspower of judicial review does not act as an appellate authority; it doesnot re-appreciate the evidence. The court held that:

“12. Judicial review is not an appeal from a decision but aCreview of the manner in which the decision is made. Power ofjudicial review is meant to ensure that the individual receivesfair treatment and not to ensure that the conclusion which theauthority reaches is necessarily correct in the eye of the court.When an enquiry is conducted on charges of misconduct byDa public servant, the Court/Tribunal is concerned to determinewhether the enquiry was held by a competent officer orwhether rules of natural justice are complied with. Whetherthe findings or conclusions are based on some evidence, theauthority entrusted with the power to hold enquiry hasjurisdiction, power and authority to reach a finding of factEor conclusion. But that finding must be based on someevidence. Neither the technical rules of the Evidence Act norof proof of fact or evidence as defined therein, apply todisciplinary proceeding. When the authority accepts thatevidence and conclusion receives support therefrom, the

Fdisciplinary authority is entitled to hold that the delinquentofficer is guilty of the charge. The Court/Tribunal in its powerof judicial review does not act as appellate authority toreappreciate the evidence and to arrive at its own independentfindings on the evidence. The Court/Tribunal may interferewhere the authority held the proceedings against theGdelinquent officer in a manner inconsistent with the rules ofnatural justice or in violation of statutory rules prescribingthe mode of enquiry or where the conclusion or finding 10 T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255.H11 (1995) 6 SCC 749.

reached by the disciplinary authority is based on no evidence.If the conclusion or finding be such as no reasonable personwould have ever reached, the Court/Tribunal may interferewith the conclusion or the finding, and mould the relief so asto make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Whereappeal is presented, the appellate authority has co-extensivepower to reappreciate the evidence or the nature ofpunishment. In a disciplinary enquiry, the strict proof of legalevidence and findings on that evidence are not relevant.Adequacy of evidence or reliability of evidence cannot bepermitted to be canvassed before the Court/Tribunal. In Unionof India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4SCR 718], this Court held at p. 728 that if the conclusion,upon consideration of the evidence reached by thedisciplinary authority, is perverse or suffers from patent erroron the face of the record or based on no evidence at all, awrit of certiorari could be issued.”

18. Other decisions have ruled that being a proceeding before adomestic tribunal, strict rules of evidence, or adherence to the provisionsof the Evidence Act, 1872 are inessential. However, the procedure hasto be fair and reasonable, and the charged employee has to be givenreasonable opportunity to defend himself (ref: Bank of India v. DegalaSuryanarayana[12]a decision followed later in Punjab & Sind Bank v.Daya Singh[13]). In Moni Shankar v. Union of India[14]this court outlinedwhat judicial review entails in respect of orders made by disciplinaryauthorities:

“17. The departmental proceeding is a quasi-judicial one.Although the provisions of the Evidence Act are not applicablein the said proceeding, principles of natural justice arerequired to be complied with. The courts exercising power ofjudicial review are entitled to consider as to whether whileinferring commission of misconduct on the part of a delinquentofficer relevant piece of evidence has been taken into 12 (1999) 5 SCC 762.

13 (2010) 11 SCC 233.

14 (2008) 3 SCC 484.

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Aconsideration and irrelevant facts have been excludedtherefrom. Inference on facts must be based on evidence whichmeet the requirements of legal principles. The Tribunal was,thus, entitled to arrive at its own conclusion on the premisethat the evidence adduced by the Department, even if it istaken on its face value to be correct in its entirety, meet theBrequirements of burden of proof, namely, preponderance ofprobability. If on such evidence, the test of the doctrine ofproportionality has not been satisfied, the Tribunal was withinits domain to interfere.”

This court struck a similar note, in State Bank of Bikaner andCJaipur v. Nemi Chand Nalwaya[15], where it was observed that:

“If the enquiry has been fairly and properly held and thefindings are based on evidence, the question of adequacy ofthe evidence or the reliable nature of the evidence will not begrounds for interfering with the findings in departmentalDenquiries. Therefore, courts will not interfere with findings offact recorded in departmental enquiries, except where suchfindings are based on no evidence or where they are clearlyperverse. The test to find out perversity is to see whether atribunal acting reasonably could have arrived at suchEconclusion or finding, on the material on record”.

19. The bank is correct, when it contends that an appellate reviewof the materials and findings cannot ordinarily be undertaken, inproceedings under Article 226 of the Constitution. Yet, from H.C. Goelonwards, this court has consistently ruled that where the findings of theFdisciplinary authority are not based on evidence, or based on aconsideration of irrelevant material, or ignoring relevant material, aremala fide, or where the findings are perverse or such that they couldnot have been rendered by any reasonable person placed in likecircumstances, the remedies under Article 226 of the Constitution areavailable, and intervention, warranted. For any court to ascertain if anyGfindings were beyond the record (i.e., no evidence) or based on anyirrelevant or extraneous factors, or by ignoring material evidence,necessarily some amount of scrutiny is necessary. A finding of “noevidence” or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority. However, themargin of appreciation of the court under Article 226 of the Constitutionwould be different; it is not appellate in character.

20. In the present case, the impugned judgment discloses scrutinyof the record. The same level of scrutiny is absent in the decision of thelearned single judge. That the division bench conducted the kind ofscrutiny that it did, cannot be a factor to hold its decision erroneous. Inthis context, it would be worth recollecting Bernard Schwartz[16] thatjudicial review- of administrative decisions: warrants a minimum level ofscrutiny:

“If the scope of review is too broad, agencies are turned intolittle more than media for the transmission of cases to thecourts. That would destroy the values of agencies created tosecure the benefit of special knowledge acquired throughcontinuous administration in complicated fields. At the sametime, the scope of judicial enquiry must not be so restrictedthat it prevents full enquiry into the question of legality. Ifthat question cannot be properly explored by the judge, theright to review becomes meaningless. It makes judicial reviewof administrative orders a hopeless formality for the litigant.It reduces the judicial process in such cases to a mere feint.’’

21. Coming now to the charges, it can be seen that MW 1, themanagement witness, who deposed about the procedure in the bank, forrecording entries in the subsidy register, clearly stated that at the relevanttime, some entries were made by the respondent, and some by Sri MadanMohan Saha, who “used to maintain the subsidy register on mostoccasions.” He also deposed that it was Sri Madan Mohan Saha’s dutyas the cashier to maintain the subsidy register. Saha failed to dischargethat duty. In view of this evidence, and no contrary documentary evidencecasting the primary responsibility to maintain the subsidy register on therespondent, the impugned judgment, in this court’s opinion, cannot befaulted with in concluding that there was no material to prove the firstcharge against the employee. As regards the second charge ofmisappropriation of subsidy amount from twelve individuals, whose nameswere fraudulently introduced, the bank relied on the depositions of sevenpersons. They were identified by Sri Haradhan Bera (MW2), himself atthe time Pradhan, Chandabila Gram Panchayat. MW 2’s identity was 16 In Administrative Law, 2nd edn., p. 584.

AB

CD

E

F

G

16 In Administrative Law, 2nd edn., p. 584.

AB

CD

E

F

G

Achallenged at the outset by the respondent; he did not produce any identityproof. The enquiry officer did not rule on this. The impugned judgmentconcluded that in the absence of proof of Sri Haradhan Bera’s identity,and any independent material, with respect to the seven allegedbeneficiaries, their identity was not independently proved. Additionally,there had to be some material, linking the employee (respondent) withBthe applications, introducing the borrowers, etc. MW-1, the subsequentmanager, clearly deposed in reply to a query (question no. 8) as to whoused to “identify the borrowers” before sanction and disbursement ofIRDP loans, that the “Pradhan/Member of Gram Panchayat” usedto identify the beneficiaries. Such being the case, the involvement of theCrespondent employee had to be shown by more definitive evidence. It isagain a matter of record, that the then Pradhan of the Gram Panchayat,Sri Subhendu Kumar Das, identified the borrowers. In thesecircumstances, even in departmental proceedings, there had to be someovert evidence, and not mere suspicion, to support a valid finding of complicity of the respondent. In these circumstances, the impugnedDjudgment cannot be faulted with in its findings on the second charge.22. The third charge of misappropriation of the entire loan andsubsidy amount in connivance with Sri Subhendu Kumar Das and SriMadan Mohan Saha was based on a confessional statement (document‘X’). A copy of that document is on record. The relevant part reads asEfollows:

“Today on dated 3.3.94, in the presence of Manager babu ofUBI, Chandabila Branch the statement of Cashier babu(Madan Mohan Saha) has been recorded in the presence offollowing persons.FThe loan amount in respect of 1 O IRDP loan from A/c. No.SSl- 45/90 to 54/90 were equally shared by we four of us,namely (1) Sri Subhendu Das, (2) Sri BiswanathBhattacharyya, (Manager)

(3) Sri Madan Mohan Saha (Cashier), (4) Basudeb RoyG(Peon). The above loan amount were liquidated by we thefour persons and subsidy amount were also received by fourof us.

Sd/- Sri Subhendu Kumar Das, 3/3/94Sd/- Madan Mohan Saha, 3/3/94

H

The above mentioned discussion and confession were heldtoday at 12.30 P.M. in my presence. The discussions werecompleted peacefully.

A

Sd/- Manager - 3/3/9 4With Manager’s Office Seal.BAttestedBy Manager with seal15.3.94"

The document was witnessed by six persons (Sri S.K SukhjanAli, Sri Santosh Kumar Saha, Sri Trilochan Singh, Sri Suresh ChandraDas, Sri Nabin Suri and Sri S.K. Washef Hussain). The document wasnot exhibited. Undeniably:

C

(a) The respondent did not sign the confession.

(b) The confessional statement dated 03.03.1994 was made bySri Subhendu Kumar Das and Sri Madan Mohan Saha, which wasattested by an officer of the bank.

D

(c) The confession was an admission as far as its makers wereconcerned. The impugned judgment held that this document could notbe used against the employee respondent to fasten him with liability foralleged misappropriation. The finding based on a document not evenadmitted into evidence and not signed and accepted, by the appellantwas held to be perverse.

E

23. This court previously had an occasion to deal with adepartmental proceeding that culminated in a penalty, where the enquirywas based on the confessional statements made to the police and noother material. The court, in Roop Singh Negi v. Punjab NationalBank[17]held such evidence to be inadequate:

F

“15. We have noticed hereinbefore that the only basicevidence whereupon reliance has been placed by the enquiryofficer was the purported confession made by the appellantbefore the police. According to the appellant, he was forcedto sign on the said confession, as he was tortured in the policestation. The appellant being an employee of the Bank, thesaid confession should have been proved. Some evidence G

H

Ashould have been brought on record to show that he hadindulged in stealing the bank draft book. Admittedly, therewas no direct evidence. Even there was no indirect evidence.The tenor of the report demonstrates that the enquiry officerhad made up his mind to find him guilty as otherwise he wouldnot have proceeded on the basis that the offence was committedBin such a manner that no evidence was left.”

There are decisions of this court (J.D. Jain v Management ofState Bank of India[18]and State Bank of India v Hemant Kumar[19])where witness depositions which stated that the charged employee hadpreviously confessed or admitted his role and guilt, were held to beCadmissible. In the present case, however, the confessional statementwas not by the respondent. Those who authored the confession, didnot depose in the enquiry. Furthermore, no witness who heard the authorsof the confession, deposed to it. At best then, that document bound theauthors, not third parties, like the respondent. The enquiry officer clearlyDerred by relying on such extraneous matters, as the respondent couldnot be made a scapegoat for the confession of others, especially withregard to his role. The bank’s charge about his complicity had to beproved by evidence. This document, containing others’ confession, couldnot have been used against him.

E24. As far as the other two charges go, the division bench correctlyheld that there was no evidence to show that the respondent had removedthe documents, from the bank. Importantly, he was charged seven yearsafter the alleged incident; by that time other managers had taken overthe branch. As regards the last charge of transferring amounts throughthree demand drafts from the account of Sri Madan Mohan Saha toFJoint S.S. Account of Sri Haradhan Bera on 28.06.94 was concerned,the enquiry officer noted that, “Sri Haradhan Bera in his evidenceavoided the matter for some reasons best known to him.” In theabsence of any other material, the finding that the amounts had beenmisappropriated by the respondent, who in connivance with Sri MadanGMohan Saha, and Sri Subhendu Kumar Das, ensured that the loancomponent was returned to the bank, cannot be said to have beenestablished.

18 1982 (1) SCC 143.H19 2011 (2) SCC 22.

25. An interesting side is this - Sri Madan Mohan Saha, whoconfessed to the misconduct, was charged and proceeded withdepartmentally. The confession of guilt, which he owned up to,nevertheless resulted in a mild penalty of withholding of increments.However, the respondent, who did not admit his guilt, or confess to it,and in respect of whom there was no credible evidence, even going bythe lower standards of acceptable proof in departmental inquires, washeld to be guilty and visited with the penalty of dismissal. A reading ofthe disciplinary authority’s order reveals that his past record of minormisconduct played a major role in determining his guilt, despite lack ofevidence, and the extreme penalty of dismissal.

26. In view of the foregoing discussion, and having regard to therecord, the impugned judgment cannot be faulted with. The appeal isunmerited. The appellant bank is directed to ensure that the respondent’sservices are deemed to be reinstated, and calculate all his benefits,including arrears of salary, pay increase (as applicable), increments, andall consequential benefits, and calculate his terminal benefits, and fix hispension, if admissible to him under the bank’s regulations. The determinationof these benefits shall be undertaken, and the payment of all amounts bemade, within three months from date of this judgment. The appeal isdismissed without order on costs.