Jammu & Kashmir High Court – Srinagar Bench
Kavi Nain Singh Age 58+ Year S/O S. Onkar … vs Punjab National Bank Through Circle … on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
SWP no.2108/2014
Reserved on: 22.08.2024
Pronounced on: 24.12.2024
Kavi Nain Singh age 58+ year S/o S. Onkar Singh R/o Monghama, Tral
.......Petitioner(s)
Through: Mr Mian Tufail, Advocate
Versus
1. Punjab National Bank through Circle Office Gupta Towers Rail Head
Complex (HRD Dept.) J&K Jammu
2. Executive Director, Punjab National Bank, Personnel Administration
Division, Head Office 7, Bhikaji Cama Place, New Delhi
and others
......Respondent(s)
Through: Mr N.A.Dendru, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Order dated 15th January 2014 passed by Disciplinary Authority as also
order dated 13th June 2014 passed by Appellate Authority as well as
Order dated 9th September 2012, cancelling petitioner’s result for
selection from MMGS-II to MMGS-III, are being sought to be quashed.
And respondents are sought to be directed to give all service benefits
viz. leave salary, pension, gratuity, emoluments etc. to petitioner as if
no orders dated 15th January 2014 and 13th June 2014 had been issued
against him with a further direction to respondents to promote petitioner
1
SWP no.2108/2014
from MMGS-II to MMGS-III from the date he was due for such
promotion and give him all consequential benefits.
2. According to petitioner, he joined respondent – Punjab National Bank,
when he came to be appointed as Clerk-cum-Typist on 2nd March 1981.
Promotions were given to him, first to the post of Officer on 17 th
September 1986 and thereafter to the post of Manager on 7th September
1998. From 22nd April 2002 to 10th January 2006, he was posted as
Manager, PNB, Branch Office Gangyal, Jammu. Against him charge
sheet was issued on 12th June 2009, requiring him to submit statement
of defence within ten days. Charge sheet was as to alleged
recommendations made by him for grant of loan to various parties
without assuring proper pre-sanction appraisal and neglecting post
sanction safeguards / follow up, jeopardizing bank interests. Petitioner
replied charge sheet denying allegations levelled against him.
Respondent no.5 vide Order dated 6th January 2010 was appointed as
Enquiry Officer. In a slipshod manner, it is claimed by petitioner,
enquiry was conducted and report submitted on 10th March 2011; a
copy whereof was not provided to petitioner. Order dated 30th July 2011
was issued by respondent no.4, imposing major penalty of reduction of
four stages in the time scale of pay and petitioner was placed with
cumulative effect up to the date of retirement on superannuation, i.e.,
31st May 2014, in terms of Regulation 4(f) of Punjab National Bank
Officer Employees D&A Regulations, 1977 (for short “Regulations of
1977”). This order was challenged by petitioner in an appeal under
Regulation 17 of the Regulations of 1977. The appeal was dismissed
vide Order dated 29th February 2012. Against that, petitioner preferred
2
SWP no.2108/2014
review. On 25th August 2012, application under Right to Information
Act was also moved by him for certain information and documents.
Upon receipt thereof, on 5th September 2012, he made supplementary
submissions in the matter of his review petition before respondent no.2
on 5th October 2012. Review petition was rejected by respondent no.2
on 8th November 2012. As stated by petitioner, rejection order was
communicated to him on 16th November 2012 by Assistant Manager,
PNB. Aggrieved, petitioner is before this Court with writ petition on
hand.
3. Respondents have filed Reply. Petitioner’s services, as is claimed by
them, is regulated by Punjab National Bank Officer/Employees
(Discipline and Appeal) Regulations 1977 (Regulations of 1977).
According to respondents, petitioner seeks evaluation by this Court of
evidence/material as was brought before enquiry officer during enquiry
proceedings and thereby seeking substitution of the view of this Court
in place of the view of the enquiry officer/disciplinary authority as if
sitting in appeal in the matter
While having routine internal audit and investigation of affairs
of Branch Office Gangyal, Jammu, petitioner was alleged to have
indulged in various acts of omission and commission concerning grant
of loan facilities to various parties without ensuring proper pre-sanction
appraisal and accordingly he was charge-sheeted. Petitioner is stated to
have been given sufficient opportunity to defend himself. It is stated by
respondents that petitioner during enquiry confirmed genuineness of
documents inspected by him and was also given opportunity to
3
SWP no.2108/2014
nominate and obtain assistance of defence representative and to cross-
examine witnesses produce against him.
Petitioner was given opportunity to produce defence witnesses
during enquiry which opportunity was availed by him. On 25 th February
2011, after examining three witnesses, Enquiry Officer directed both
Presenting Officer and petitioner to submit their respective written
brief, but petitioner did not file written brief. As per enquiry report,
allegations levelled against petitioner were found proved in full. It is
maintained that copies of each day proceedings were furnished to
petitioner by Enquiry Officer against proper receipt.
It is also averred by respondents that orders dated 30th July 2011,
passed by Disciplinary Authority as also order dated 29 th February
2012, passed by Appellate Authority and order dated 18 th November
2012 passed in petitioner’s review application, were set-aside by this
Court in terms of Order dated 22nd November 2013 in SWP
no.1249/2012. The said Order was passed on the submission of counsel
for respondents taking into consideration that copy of enquiry report
had not been furnished to petitioner. However, liberty was given to
respondents to proceed from the stage of providing copy of enquiry
report to petitioner and conclude enquiry and pass appropriate orders as
warranted by law. In pursuance thereof, respondents, besides furnishing
copy of enquiry report dated 10th March 2011 to petitioner vide letter
dated 9th December 2013, also granted him sufficient opportunity to
make representation. The grounds taken by petitioner in his
representation to show cause notice have been duly dealt with by
respondents in terms of final order dated 15th January 2014, upholding
4
SWP no.2108/2014
the findings of fact returned by Enquiry Officer after due consideration
of the entire material collected during enquiry proceedings as also the
Response made by petitioner both during the course of enquiry and in
terms of his Reply to the enquiry report, and punishment of reduction
of ten stages in time scale of pay against petitioner with cumulative
effect upto the date of his retirement on superannuation, i.e., 31 st May
2014, was ordered. The said order was passed by Disciplinary
Authority strictly in accordance with rules, which was also upheld by
Appellate Authority. Respondents also state that while issuing charge
sheet, they have strictly adhered to mandate of rules, in that, petitioner
was conveyed allegations levelled against him in terms of definite and
distinct charges as also articles of charge/ statement of allegations. He
was also provided with the list of witnesses’ documents and given
sufficient time to inspect the listed documents of Branch Office
Gangyal for preparing his defence which opportunity was availed by
him without any complaint of whatsoever nature. Respondents claim
that it is not true that petitioner was not informed as to how he would
inspect the record, more particularly when details of documents relied
upon against him had already been conveyed to him in terms of charge-
sheet. It is also averred that mandate of Clause (10) of Regulation (8)
and Regulation 6(17) and 6(18) have been complied with in letter and
spirit. Respondents also state that Shri C. L. Bhat was defence
representative of petitioner.
4. Rejoinder, to retort submissions of respondents raised by them in their
Reply, has been filed by petitioner. He submits that respondents have
neither conducted enquiry in accordance with rules nor have they given
5
SWP no.2108/2014
a proper and genuine hearing to petitioner. According to petitioner,
respondents have violated Regulation 6(3) of the Regulations of 1977
as they had not enclosed documents with charge sheet. While as
Charged Officer (CO) was advised to submit defence statement within
ten days without considering the fact as to how written statement could
be submitted when the documents were not given; he was advised to
visit the Branch for one day for inspection but it was not considered as
to how inspection could be made without documents and when
custodian of documents was the Presenting Officer (PO) himself, thus,
the rights and interests of petitioner were jeopardized. Petitioner also
contends that respondents violated Regulation 6 (4) as petitioner had
not been able to submit proper and effective written defence statement
for want of documents. It is next contention of petitioner that
Disciplinary Authority had to forward all listed documents as per
Annexure-III to Charge Sheet to the inquiry officer so that inquiry
officer may deliver the documents to charged officer without
interference of Presenting Officer, who is rival party, but insofar as
petitioner’s case is concerned, Disciplinary Authority did not forward
documents to inquiry officer and during enquiry proceedings, PO
adduced these documents including his own documents before enquiry
officer which caused serious prejudice to petitioner and by this,
respondents violated Regulation 6 (5). According to petitioner, under
Regulation 6 (10-a), E.O. would deliver copies of documents to CO but
in the present case, this job was assigned to PO, who was a rival party
and custodian of records in the Branch. The defence of petitioner was
thus jeopardized because PO produced documents more than the list as
6
SWP no.2108/2014
per Annexure IV of the charge sheet. Petitioner would also avow that
under Regulation 6(17), after conclusion of enquiry proceedings, EO
would show adverse circumstances and evidence recorded during
course of enquiry to the charged officer, so that charged officer (CO)
may avail further opportunity of offence as last opportunity, but in the
case in hand, enquiry was contemplated on 25th February 2011 and the
enquiry officer neither showed adverse circumstances to petitioner nor
did he put any mandatory question to CO and as a result whereof,
defence of petitioner was seriously prejudiced. PO adduced documents
in piecemeals prejudicing right of petitioner. PO adduced document
ME-2 to 20 on 9th April 2010 and ME-21 on 10th February 2011. It is
maintained that listed documents as per Annexure-V of charge sheet
ought to have been provided at threshold so that CO could examine the
same and prepare his defence and find out relevant record to counter
documents of management, but petitioner was asked to submit list of
defence documents at initial stage viz. on 9th April 2010 and PO was
allowed to produce document on 10th February 2011. PO examined/
cross-examined CO on 4th May 2010 exhaustively without presenting
his case and without examining his witnesses first, which is contrary to
Regulations of 1977. On 30th March 2010, preliminary hearing was held
and on 9th April 2010, PO produced his documents vide Exhibit ME-2
to ME-20. No other business was conducted on that date. On the third
day of enquiry, proceedings dated 4th May 2010, PO started petitioner’s
examination and cross-examination as allowed by EO relating to all the
charges. PO did not put one or two questions to petitioner, but examined
and cross-examined him exhaustively and put all questions relating to
7
SWP no.2108/2014
all charges to him. Till 4th May 2010, PO did not examine his own listed
witnesses. Those witnesses were examined by him on 26th July 2010,
26th August 2010, 25th October 2010, 15th November 2010 and 10th
February 2011. From the text of statement of petitioner’s examination/
cross examination at preliminary stage, he was wrongly examined by
PO.
5. I have heard counsel for parties and considered the matter. I have gone
through Enquiry report and minutes of enquiry proceedings produced
by counsel for respondent-Bank.
6. Contention of counsel for petitioner is that Regulation 6(5) of the
Regulations of 1977 has not been followed by respondents because
disciplinary authority did not forward the said documents to the enquiry
officer.
7. Regulations of 1977 applies to all officer employees of Punjab National
Bank. Regulation 4 enumerates penalties. Regulation 5 provides the
authority to institute disciplinary proceedings and impose penalties. It
says that Managing Director or any other authority empowered by him
by general or special order may institute or direct disciplinary authority
to institute disciplinary proceedings against an officer employee of the
bank. The disciplinary authority may itself institute disciplinary
proceedings. The disciplinary authority or any other authority higher
than it, may impose any of the penalties specified in Regulation 4 on
any officer employee. According to him respondents have not followed
Regulation 6 of the Regulations of 1977. It is averred that order dated
15th January 2014 passed by Disciplinary Authority is based on
concoction and distortion of facts. It is also stated that appellate
8
SWP no.2108/2014
authority while passing order dated 13th June 20145 has done nothing
except copied the order of disciplinary authority which was passed on
concoction and fabrication. Appellate authority has not applied his
mind to the facts of the case. During petitioner’s tenure, he was posted
in the branch, where loans were sanctioned after completing all
formalities. He was relieved of his duties in the branch ending
December 2005. The post sanction follows up deficiencies, if any,
pertain to other officers. The way petitioner was punished shows a
clear-cut discrimination as well as bias against him.
8. To the aforesaid contentions of counsel for petitioner, it is stated by
learned counsel for respondent-Bank that charge sheet under
Regulation 6 of the Regulations of 1977 was issued to petitioner, which
comprised of (i) statement of article of charge as Annexure-I; (ii)
statement of imputations of lapses as Annexure-II; and (iii) list of
documents/witnesses in support of imputation of lapses as Annexure-
III to charge sheet and that petitioner responded thereto and submitted
his Reply on 30th July 2009. Disciplinary Authority vide order dated 6th
January 2010 appointed Enquiry Officer and Presenting Officer to hold
a departmental enquiry into the imputations levelled against petitioner.
Mr. P.C.Soni, the then Chief Manager B.O. Jain Bazar Jammu of
respondent-bank was appointed as Enquiry Officer and Mr. Vipin
Sharma, the then Chief Manager B.O. Gangyal was appointed as
Presenting Officer, to represent respondent-bank in enquiry
proceedings. He also states that Enquiry Officer forwarded the entire
documents to petitioner to make him aware of charges levelled against
him and to defend his case properly. The enquiry proceedings were
9
SWP no.2108/2014
initiated and concluded on 25th February 2021, and enquiry report
submitted vide letter dated 11th March 2021, wherein it was mentioned
that petitioner did not submit written brief till then. It is also stated that
in enquiry proceedings charges levelled against petitioner were read
over him, but he did not admit all articles of charge. Petitioner was
handed over list of documents as also list of witnesses. He was advised
to inspect within five days listed documents at Branch Office Gangyal.
He was advised to submit list of witnesses, which he submitted. The
Management also adduced its witnesses. The witnesses were examined/
cross examined. Copies of statements of witnesses were handed over to
petitioner. On the basis of enquiry report, Disciplinary Authority found
charges levelled against petitioner genuine and imposed a major
penalty vide order dated 30th July 2011. He also avers that petitioner
challenged it in appeal, which was also dismissed and that subsequently
petitioner filed review, which stood also dismissed. He then filed writ
petition before this Court, which was disposed of with a direction to
proceed from the stage of providing copy of enquiry report to petitioner
then conclude enquiry and pass appropriate orders. Learned counsel for
respondents also states that thereafter enquiry report was given to
petitioner, to which he made a representation, which was found not
genuine and, thus, rejected.
9. Regulation 6 relates to procedure for imposing penalties. Regulation
6(1) says that no order imposing any of the major penalties specified in
Regulation 4 shall be made except after an enquiry is held in accordance
with the Regulation of 1977. Regulation 6(2) provides that whenever
the disciplinary authority is of the opinion that there are grounds for
10
SWP no.2108/2014
inquiring into the truth of any imputation of misconduct or
misbehaviour against an officer employee, it may itself enquire into or
appoint any other person who is or has been a public servant to inquire
into the truth thereof. Explanation attached thereto provides that when
disciplinary authority itself holds the inquiry any reference in sub-
regulation (8) to sub-regulation (21) to the inquiring authority shall be
construed as a reference to disciplinary authority.
10.Petitioner responded to the charge-sheet and submitted his Reply on
30th July 2009. Thereafter, on 6th January 2010, disciplinary authority
appointed Enquiry Officer and Presenting Officer to hold departmental
enquiry into the imputations against petitioner. Mr. P.C. Soni, the then
Chief Manager Branch Office Jain Bazar, Jammu of respondent-Bank
was appointed as Enquiry Officer and Mr. Vipin Sharma, the then Chief
Manager, Branch Office Gangyal Jammu, as Presenting Officer to
represent respondent-Bank in the enquiry proceedings.
11.Perusal of record on the file would reveal that as back as on 12 th June
2009, charge sheet, containing Statement of Article of Charge, was
served upon petitioner, advising him to submit statement of defence. In
statement of Article of Charge against petitioner, Article-I was that
petitioner recommended loan to various parties without ensuring proper
pre-sanction appraisal and neglected post sanction safeguards/follow
up thereby jeopardizing bank’s interest and, thus, petitioner did not
discharge his duties with utmost devotion and diligence, which
constituted misconduct in terms of Regulation 3(1) read with
Regulation 24 of the Regulations of 1977. In support of article of
charge against petitioner, statement of imputations was also issued.
11
SWP no.2108/2014
Under Charge-1, it was alleged that loan was given to M/s Shine
Decorators; M/s M.S. Industries; M/s Knit Knot Textiles; M/s Shubham
Traders; M/s B.R. & Co.; M/s Aman Electronics; M/s State Trading
Corp.; Chain Singh Housing Loan; Chain Singh Car Loan; Cosmo
Apparels; M/s Bawa Garments; Rau Khosla; Mohd. Sharief; Arshad
Khan; Sakhi Mohd; Sadiq Hussain; Hamid; Abdul Quyoom; Roopali
International; M/s Superchem Plast Industries, without following the
prescribed procedural prerequisites. In all the above accounts, dues
amounting to Rs.251.31 Lacs were proving hard for recovery. In
addition to this, 42 accounts with amount of Rs.149.73 Lacs sanctioned
on the basis of recommendations as Incharge Loans had slipped to NPA
due to improper pre-sanction appraisal and lack of post-sanction follow
up and out of them 37 with outstanding of Rs.96.99 Lacs were proving
hard for recovery. To these amputations, petitioner submitted his
detailed reply by stating that he took all possible steps to save interest
of the bank.
12.Assistant General Manager, Circle Office, Jammu/Disciplinary
Authority decided to imposed upon petitioner major penalty of
“reduction of four stages in the time scale of pay he is placed with
cumulative effect upto the date of retirement on superannuation i.e.
31.05.2014 in terms of regulation 4(f) of PNB Officer Employees
(D&A) Regulations, 1977”. Senior Manager (HRD) PNB Circle Office
Highland Towers Rail Head Complex, Jammu, J&K, vide letter
no.CO/HRD/DAC/KNS/2011 dated 30th July 2011, forwarded to
Incharge BO Anantnag copy of detailed order dated 30 th July 2011
passed by disciplinary authority to be served upon petitioner. Order
12
SWP no.2108/2014
dated 30th July 2011 issued by Disciplinary Authority would be apt to
be reproduced hereunder:
“PUNJAB NATIONAL BANK
CIRCLE OFFICE,
BAHU PLAZA
RAIL HEAD COMPLEX
JAMMUPLACE OF ISSUE: JAMMU (J&K) DATE OF ISSUE: 30.07.2011
ORDER
Sh. Kavi Nain Singh (PF-41061) Manager, BO: Anantnag, Kashmir,
J&K – Charge Sheet dated 12.06.2009 under Regulation 6 of Punjab
National Bank Officer Employee’s (Discipline & Appeal)
Regulations 1977.
Shri Kavi Nain Singh was served with charge sheet dated 12.06.2009
under major penalty proceedings for the lapses/irregularities alleged
to have been committed by him in the borrowal accounts at BO:
Gangyal, Jammu, J&K. He was charged vide following Article of
Charge by the Circle Head (DGM) Disciplinary Authority at that time.
ARTICLE – I
He recommended loans to various parties without ensuring proper
pre-sanction appraisal and neglected post sanction safeguards/follow
up, thereby jeopardizing Bank’s interest.
Thus, Shri Kavi Nain Singh did not discharge his duties with utmost
devotion and diligence, which constitutes misconduct in terms of
Regulations 3(1) read with Regulation 24 of Punjab National Bank
Officer Employees’ (Conduct) Regulations, 1977.
He was advised to submit his statement of defence within a period of
ten days. Sh. Singh submitted his statement of defence vide his letter
dated 30.07.2009, wherein he denied the charge. In order to look into
the truth of imputation of lapses, Departmental Enquiry was instituted
vide order dated 06.01.2010 by the Circle Head (DGM) being the
Disciplinary Authority in the case at that time. Sh. P.C.Soni (26722),
Chief Manager BO: Jain Bazar, Jammu was appointed as Enquiry
Officer and Sh. Vipin Sharma (36489), Chief Manager BO: Gangyal,
Jammu as Presenting Officer in the case.
In the meantime, Disciplinary Authority changed from Circle Head
(DGM) to Assistant General Manager, Circle Office, Jammu, vide
PAD, HO, New Delhi Circular NO.16 dated 10.01.2011.
The Enquiry Officer submitted his exhaustive report on findings dated
10.03.2011.
I have gone through the case comprising of the charge sheet, enquiry
report along with records of enquiry proceedings, submissions made
by Sh. Singh over the findings of the Enquiry Officer and other related
documents. It is a matter of record that with both documentary as well
13
SWP no.2108/2014
as circumstantial evidence adduced has proved the charge levelled
against the charged officer. I observed from the records of the enquiry
that the Enquiry Officer has given his findings on the imputation of
charge mentioned in the charge sheet and after considering the
evidence adduced during the enquiry proceedings, he rightly
concluded that the charges have been proved.
In view of the foregoing, I concur with the findings of the Enquiry
Officer and hold Sh. Kavi Nain Singh of the charge held as proved on
the basis of evidence on record. I also note with concern that all the
forty two borrowal accounts listed in the charge sheet have been
categorized as NPAs and some of the accounts have been categorized
as Non Performing Assets within only one year of their sanction.
Besides, I find that a number of borrowal accounts are secured with
collateral security of no value or of very less value. I observe that
gross and glaring lapses have been committed while processing loan
cases thus exposing the Bank to a substantial amount of risk and
therefore, there is every apprehension of causing a substantial
pecuniary loss to the Bank. However, taking an overall view of the
case and also keeping in view the past conduct of the charged official,
I take a lenient view and propose/decide to impose upon Sh. Singh
major penalty of “Reduction of Four stages in the time scale of pay he
is placed with cumulative effect upto the date of retirement on
superannuation i.e. 31.05.2014 in terms of regulation 4(f) of PNB
Officer Employees (D&A) Regulations, 1977.
I order accordingly.
Sd/-
Assistant General Manager
Disciplinary Authority”
13.Petitioner preferred an Appeal under Regulation 17 of the Regulations
of 1977 against order of Disciplinary Authority dated 30th July 2011.
The appeal by order dated no.PAD/HO/DAC/13915 dated 29 th
February 2012, issued by Appellate Authority (General Manager) was
rejected. Review petition preferred by him against major penalty of
“Reduction of four stages in the time scale of pay he is placed with
cumulative effect upto the date of retirement on superannuation i.e.,
31.05.2024” along with the records of the case was placed before the
Executive Director, the Reviewing Authority, who rejected it vide
Order dated 8th November 2012.
14.Petitioner moved a writ petition, SWP no.1249/2013, titled as Kavi
Nain Singh v. Punjab National Bank and others . His plea was that
14
SWP no.2108/2014
penalty was imposed upon him without hearing him and de hors therules and that copy of enquiry report was not supplied to him.
Respondent-bank did not object the relief prayed for by petitioner. A
Bench of this Court considered the matter and vide judgement/order
dated 22nd November 2013 set-aside the orders passed on the basis of
enquiry report. However, liberty was given to respondent-bank to
proceed from the stage of providing copy of enquiry report to petitioner
and then conclude the enquiry and pass appropriate orders as would be
warranted with reasonable dispatch. It was also provided that dependent
on the result of enquiry or otherwise, if respondents did not choose to
proceed with enquiry, then petitioner’s claim having been selected for
promotion to the post of MMGS-II to MMGS-III would be given effect
in accordance with applicable rules along with consequential benefits
as would be permissible under rules.
15.Respondent-bank vide letter dated 9th December 2013, in compliance
to judgement dated 22nd November 2013 in SWP no.1249/2013,
provided copy of report of Enquiry Officer on the findings of charges
in respect of Charge Sheet dated 12th June 2009 to petitioner.
16.Petitioner made a representation against the findings of Enquiry Officer
in the matter of Charge Sheet dated 12th June 2009. Disciplinary
Authority considered petitioner’s representation and passed Order
dated 15th January 2014, which reads as under:-
“PUNJAB NATIONAL BANK
CIRCLE OFFICE
BAHU PLAZA, JAMMU
Place of Issue: Jammu (J&K) Date of Issue:
15.01.2014
15
SWP no.2108/2014
ORDERSh. Kavi Nain Singh (PF-41061) Manager, BO: Jain Bazar, Jammu –
Charge Sheet dated 12.06.2009 under Regulation 6 of Punjab National
Bank Officer Employee’s (Discipline & Appeal) Regulations 1977.
Shri Kavi Nain Singh was served with charge sheet dated 12.06.2009
under major penalty proceedings for the lapses/irregularities alleged
to have been committed by him in the borrowal accounts at BO:
Gangyal, Jammu, J&K. He was charged vide following Article of
Charge by the Circle Head (DGM), Disciplinary Authority at that
time.
ARTICLE – I
He recommended loans to various parties without ensuring proper
pre-sanction appraisal and neglected post sanction safeguards/follow
up, thereby jeopardizing Bank’s interest.
In order to look into the truth of imputation of lapses, Departmental
Enquiry was instituted vide order dated 06.01.2010 by the Circle Head
(DGM) being the Disciplinary Authority in the case at that time. The
Disciplinary Authority changed from Circle Head (DGM) to Assistant
General Manager, Circle Office, Jammu,, vide PAD, HO, New Delhi
Circular No.16 dated 10.01.2011.
The Enquiry Officer submitted his exhaustive report on findings dated
10.03.2011.
He was imposed major penalty of ‘Reduction of four stages in the time
scale of pay he is placed with cumulative effect upto the date of
retirement on superannuation i.e. 31.05.2014’ vide disciplinary
authority order dated 30.07.2011. Shri Kavi Nain Singh preferred to
file an Appeal against the penalty imposed by the Disciplinary
Authority vide his letter dated 24.10.2011 before the Appellate
Authority who has vide their order dated 29.02.2012 rejected the
same.
Subsequently Shri Singh submitted his review petition against major
penalty before the Executive Director, the Reviewing Authority who
has also rejected the same vide order dated 08/11/2012.
Shri Kavinain Singh then filed writ petition in the Honorable High
Court of Jammu & Kashmir at Srinagar under SWP No.1249/2013
CMP No.2005/2013 on 12.07.2013 against the orders of Disciplinary
Authority served on 30.07.2011 in the matter of Charge Sheet dated
12.05.2009, under Regulation 6 of Punjab National Bank Officer
Employee’s (Discipline & Appeal) Regulations 1977 & appellate
authority order dated 09.09.2011 seeking operation of the orders to be
kept in abeyance.
The honorable court has passed the order dated 22.11.2013 setting
aside the orders passed on the enquiry report leaving the bank free to
proceed against the petitioner from the stage of providing copy of the
enquiry report to the petitioner then conclude the enquiry and pass
appropriate orders as shall be warranted with reasonable dispatch
16
SWP no.2108/2014
preferably within six weeks as the officer is retiring on superannuation
in the month of May, 2014.
Accordingly, on the basis of court order dated 22.11.2013 the copy of
the Enquiry Officer’s Report dated 10.03.2011, on the findings of the
charges in respect of the Charge Sheet dated 12.062009 served upon
Shri Kavi Nain Singh was given to him for his submission. Vide his
representation dated 16.12.2013; he has submitted his reply on the
findings of the Enquiry. In his submission on the findings of the
enqiry, Shri Kavi Nain Singh has mainly raised following contentions:
1. That the Disciplinary action proceedings were not held in
accordance with the provisions made in D & A Regulations, 1977
whereas frequent violation was made of the provided Regulations and
thus the enquiry proceedings are vitiated wherein the interest of the
defence has been prejudiced.
2. That the Presenting Officer has adduced documents in piecemeal
due to which the interest of the defence has been prejudiced.
3. That the Presenting Officer examined / cross examined the Charged
Officer exhaustively and on all the charges on 4.5.2010 without
presenting his case first and without examining his own witnesses first
and the procedure so adopted is not known either to the law or to the
D&A Regulations 1977.
4. That the Presenting Officer has examined the witnesses Pankaj
Bakshi MW3 and B.L.Kaul MW4 on 15.11.2010 jointly and together
which is not approved in terms of quasi-judicial enquiry proceedings
and thus the proceedings are vitiated being perverse.
5. That copy of written brief of the Presenting Officer was not
provided to me and at the same time my written defence brief were
not invited from me whereas it was arranged from Shri C.L.Bhat who
was no more my defence representative after conclusion of the
enquiry proceedings. Thus proper opportunity of defence was not
provided.
6. That the Enquiry Officer has not considered the written brief dated
10.03.2011 submitted by Shri C.L.Bhat on the advice of E.O.
7. That the documents of the Presenting Officer were not taken on the
record of inquiry in terms of his alleged list dated 9.4.2010 provided
during the course of inquiry proceedings and thus the documents of
the presenting officer have not attained any evidently value.
8. The presenting officer had examined non-listed witnesses, due to
which the interest of the defense has been prejudicial, and the inquiry
proceedings have also been vitiated.
9. That there is no evidentry value of the witnesses examined by the
presenting officer, since these witnesses have not explained the truth
in the contents of the respective documents.
17
SWP no.2108/2014
10. That there is no cognizance of the additional documents of the
presenting officer.
11. That inquiry officer has misconceived that I have admitted any of
the charges.
In his submission on the enquiry finidngs, Shri Kavi Nain Singh has
also pleaded for giving him the opportunity for personal hearing for
which there is no provision in the PNB Officer Employee’s (D&A)
Regulation 1977.
I, being disciplinary authority, have gone through the entire case and
have carefully observed from the representation submitted by the
charged office Shri Kavi Nain Singh on the findings of the enquiry
that he has found fault only with the procedure of the enquiry
proceedings but has put forth no new things which can prove his
innocence.
I also observe from the records of the enquiry proceedings that the
enquiry has been conducted as per the provisions of PNB Officers
Service (D&A) Regulations 1977. The CO did not object to the
procedure enquiry during the enquiry proceedings and in his written
brief submitted through his Defence Assistant.
The charged officer has been given sufficient opportunity to inspect
relevant record and to obtain photocopies of the documents for his
defence in the case.
The exhaustive cross examining of the charged officer and examining
of two Management witnesses jointly did not have any effect on the
facts proving him guilty of the charges.
He was also given opportunity to cross examine the management
witnesses.
The copy of the written briefs of PO were given to the charged officer
through his authorized defence representative who has in turn
submitted his defence brief dated 10.03.2011 to the enquiry officer.
I further observed from the records of the enquiry proceedings that the
findings are based upon the documentary evidence. Management /
Defence witnesses and the defence have been given ample
opportunities to present their side and arguments in defence.
In view of the foregoing, I concur with the findings of the Enquiry
Officer and hold Sh. Kavi Nain Singh guilty of the charges held as
proved on the basis of evidence on record. After taking an overall
view of the case and also keeping in view the likely pecuniary loss to
the bank, I decide to impose upon Sh. Singh major penalty of
Reduction of Ten stages in the time scale of pay he is placed, with
cumulative effect upto the date of retirement on superannuation i.e.
31.05.2014, in terms of regulation 4(f) of PNB Officer Employees
(D&A) Regulation 1977.
I order accordingly.
18
SWP no.2108/2014
Sd/-
Assistant General Manager
Disciplinary Authority”
17.From the above, it is evident that disciplinary authority while deciding
representation of petitioner vide order dated 15th January 2014, has
observed and said that findings given by the enquiry officer are based
on documentary evidence, Management/Defence witnesses.
Disciplinary authority has concurred with the findings of Enquiry
Officer and held petitioner guilty of the charges proved on the basis of
evidence on record and imposed upon petitioner major penalty of
“Reduction of Ten stages in the time scale of pay he is placed with
cumulative effect upto the date of retirement on superannuation i.e.,
31.05.2024 in terms of Regulation 4(f) of PNB Officer Employees
(D&A) Regulations, 1997″.
18.Petitioner’s appeal against the Disciplinary Authority order dated 15th
January 2014 has been rejected by Appellate Authority of respondent-
bank vide Order dated 13th June 2014, conveyed to him vide letter dated
14th June 2014.
19. I have gone through the record produced by respondent-bank. It is
apparent from the record that petitioner has been given opportunities at
all stages as was required under and in terms of the Regulations of 1977.
He participated in enquiry proceedings. He was given all the material
which was relied upon by the authorities for framing statement of article
of imputations/charges against him. Witnesses were examined. He even
inspected the listed documents of Branch Office, Gangyal to prepare
his defence. The respondent-bank has found that serious pre-
sanction/post sanction lapses have been proven in the enquiry against
19
SWP no.2108/2014
petitioner and the bank is likely to incur heavy loss due to the lapses on
his part.
20.Petitioner cannot be heard saying that respondent-bank has not
followed the Regulations of 1977 and/or that respondents have violated
principles of natural justice. Even the record on the file is self-evident.
Petitioner has been given opportunities at all stages to defend himself.
The enquiry has been conducted by respondent-bank fairly and
properly and findings have been given based on evidence, thus,
question of adequacy of evidence or reliable nature of evidence is no
ground to interfere with the finding in the enquiry. In such
circumstances, this Court cannot re-assess the evidence led in enquiry
or to interfere on the ground that another view is possible on the
material on record.
21.The scope of examination and interference under Article 226 of the
Constitution of India in a case of the present nature, is no longer res
integra. In State of Andhra Pradesh v S Sree Rama Rao, AIR 1963 SC
1723, a three-Judge Bench of the Supreme Court stated:
“7. … The High Court is not constituted in a proceeding under
Article 226 of the Constitution a Court of appeal over the
decision of the authorities holding a departmental enquiry
against a public servant : it is concerned to determine whether
the enquiry is held by an authority competent in that behalf,
and according to the procedure prescribed in that behalf, and
whether the rules of natural justice are not violated. Where
there is some evidence, which the authority entrusted with the
duty to hold the enquiry has accepted and which evidence
may reasonably support the conclusion that the delinquent
officer is guilty of the charge, it is not the function of the High
Court in a petition for a writ under Article 226 to review the
evidence and to arrive at an independent finding on the
evidence. The High Court may undoubtedly interfere where
the departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the rules
of natural justice or in violation of the statutory rules20
SWP no.2108/2014
prescribing the mode of enquiry or where the authorities have
disabled themselves from reaching a fair decision by some
considerations extraneous to the evidence and the merits of
the case or by allowing themselves to be influenced by
irrelevant considerations or where the conclusion on the very
face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion,
or on similar grounds. But the departmental authorities are, if
the enquiry is otherwise properly held, the sole judges of facts
and if there be some legal evidence on which their findings
can be based, the adequacy or reliability of that evidence is
not a matter which can be permitted to be canvassed before
the High Court in a proceeding for a writ under Article 226 of
the Constitution.”
22.Under Article 226 of the Constitution, High Court is not a court of
appeal over the decision of the authorities holding a departmental
enquiry against a public servant. The High Court is concerned to
determine whether enquiry has been held by an authority competent,
and according to the procedure prescribed, and whether rules of natural
justice have not been violated. Where there is some evidence, which the
authority entrusted with the duty to hold the enquiry has accepted and
which evidence may reasonably support the conclusion that the
delinquent officer is guilty of the charge, it is not the function of the
High Court in a writ petition under Article 226 to review the evidence
and to arrive at an independent finding on the evidence. The High Court
may indisputably interfere where departmental authorities have held the
proceedings against delinquent in a manner inconsistent with rules of
natural justice or in violation of statutory rules prescribing the mode of
enquiry or where authorities have disabled themselves from reaching a
fair decision by some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be influenced by
irrelevant considerations or where the conclusion on the very face
21
SWP no.2108/2014
thereof is so wholly arbitrary and capricious that no reasonable person
could ever have arrived at that conclusion, or on similar grounds. But
the departmental authorities are, if the enquiry is otherwise properly
held, the sole judges of facts and if there be some legal evidence on
which their findings can be based, the adequacy or reliability of that
evidence is not a matter which can be permitted to be canvassed before
the High Court in a writ petition under Article 226. The same views
were reiterated in State Bank of India v Ram Lal Bhaskar, (2011) 10
SCC 249. The Supreme Court in State of Andhra Pradesh v. Chitra
Venkata Rao, (1975) 2 SCC 557, observed and stated as under: –
“21. The scope of Article 226 in dealing with departmental inquiries has
come up before this Court. Two propositions were laid down by this
Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723: (1964)
3 SCR 25: (1964) 2 LLJ 150]. First, there is no warrant for the view that
in considering whether a public officer is guilty of misconduct charged
against him, the rule followed in criminal trials that an offence is not
established unless proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be not applied by
a domestic tribunal of inquiry the High Court in a petition under Article
226 of the Constitution is not competent to declare the order of the
authorities holding a departmental enquiry invalid. The High Court is
not a court of appeal under Article 226 over the decision of the
authorities holding a departmental enquiry against a public servant. The
Court is concerned to determine whether the enquiry is held by an
authority competent in that behalf and according to the procedure
prescribed in that behalf, and whether the rules of natural justice are not
violated. Second, where there is some evidence which the authority
entrusted with the duty to hold the enquiry has accepted and which
evidence may reasonably support the conclusion that the delinquent
officer is guilty of the charge, it is not the function of the High Court to
review the evidence and to arrive at an independent finding on the
evidence. The High Court may interfere where the departmental
authorities have held the proceedings against the delinquent in a manner
inconsistent with the rules of natural justice or in violation of the
statutory rules prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by some
considerations extraneous to the evidence and the merits of the case or
by allowing themselves to be influenced by irrelevant considerations or
where the conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at that
conclusion. The departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there is some legal evidence
on which their findings can be based, the adequacy or reliability of that
evidence is not a matter which can be permitted to be canvassed before
the High Court in a proceeding for a writ under Article 226.
xxx22
SWP no.2108/2014
23. The jurisdiction to issue a writ of certiorari under Article 226 is a
supervisory jurisdiction. The Court exercises it not as an appellate court.
The findings of fact reached by an inferior court or tribunal as a result
of the appreciation of evidence are not reopened or questioned in writ
proceedings. An error of law which is apparent on the face of the record
can be corrected by a writ, but not an error of fact, however grave it may
appear to be. In regard to a finding of fact recorded by a tribunal, a writ
can be issued if it is shown that in recording the said finding, the tribunal
had erroneously refused to admit admissible and material evidence, or
had erroneously admitted inadmissible evidence which has influenced
the impugned finding. Again if a finding of fact is based on no evidence,
that would be regarded as an error of law which can be corrected by a
writ of certiorari. A finding of fact recorded by the Tribunal cannot be
challenged on the ground that the relevant and material evidence
adduced before the Tribunal is insufficient or inadequate to sustain a
finding. The adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S.
Radhakrishnan [AIR 1964 SC 477: (1964) 5 SCR 64].
24. The High Court in the present case assessed the entire evidence and
came to its own conclusion. The High Court was not justified to do so.
Apart from the aspect that the High Court does not correct a finding of
fact on the ground that the evidence is not sufficient or adequate, the
evidence in the present case which was considered by the Tribunal
cannot be scanned by the High Court to justify the conclusion that there
is no evidence which would justify the finding of the Tribunal that the
respondent did not make the journey. The Tribunal gave reasons for its
conclusions. It is not possible for the High Court to say that no
reasonable person could have arrived at these conclusions. The High
Court reviewed the evidence, reassessed the evidence and then rejected
the evidence as no evidence. That is precisely what the High Court in
exercising jurisdiction to issue a writ of certiorari should not do.
xxxxxxxx
26. For these reasons we are of opinion that the High Court was wrong
in setting aside the dismissal order by reviewing and reassessing the
evidence. The appeal is accepted. The judgment of the High Court is set
aside. Parties will pay and bear their own costs.”
23.In State Bank of India v S K Sharma, (1996) 3 SCC 364 , the Supreme
Court held:
“28. The decisions cited above make one thing clear, viz., principles of
natural justice cannot be reduced to any hard and fast formulae. As said in
Russell v. Duke of Norfolk [(1949) 1 All ER 109: 65 TLR 225] way back
in 1949, these principles cannot be put in a strait-jacket. Their applicability
depends upon the context and the facts and circumstances of each case. (See
Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405: (1978)
2 SCR 272]) The objective is to ensure a fair hearing, a fair deal, to the
person whose rights are going to be affected. (See A.K. Roy v. Union of
India [(1982) 1 SCC 271: 1982 SCC (Cri) 152] and Swadeshi Cotton Mills
v. Union of India [(1981) 1 SCC 664].) As pointed out by this Court in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262], the dividing line between
quasi-judicial function and administrative function (affecting the rights of a
party) has become quite thin and almost indistinguishable — a fact also
emphasized by House of Lords in Council of Civil Service Unions v.
Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 :
1985 AC 374, HL] where the principles of natural justice and a fair hearing
were treated as synonymous. Whichever the case, it is from the standpoint23
SWP no.2108/2014
of fair hearing — applying the test of prejudice, as it may be called — that
any and every complaint of violation of the rule of audi alteram partem
should be examined. Indeed, there may be situations where observance of
the requirement of prior notice/hearing may defeat the very proceeding —
which may result in grave prejudice to public interest. It is for this reason
that the rule of post-decisional hearing as a sufficient compliance with
natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v.
Union of India [(1984) 3 SCC 465]. There may also be cases where the
public interest or the interests of the security of State or other similar
considerations may make it inadvisable to observe the rule of audi alteram
partem altogether [as in the case of situations contemplated by clauses (b)
and (c) of the proviso to Article 311(2)] or to disclose the material on which
a particular action is being taken. There may indeed be any number of
varying situations which it is not possible for anyone to foresee. In our
respectful opinion, the principles emerging from the decided cases can be
stated in the following terms in relation to the disciplinary orders and
enquiries: a distinction ought to be made between violation of the principle
of natural justice, audi alteram partem, as such and violation of a facet of
the said principle. In other words, distinction is between “no notice”/”no
hearing” and “no adequate hearing” or to put it in different words, “no
opportunity” and “no adequate opportunity”. To illustrate — take a case
where the person is dismissed from service without hearing him altogether
(as in Ridge v. Baldwin [1964 AC 40: (1963) 2 All ER 66: (1963) 2 WLR
935]). It would be a case falling under the first category and the order of
dismissal would be invalid — or void, if one chooses to use that expression
(Calvin v. Carr [1980 AC 574: (1979) 2 All ER 440: (1979) 2 WLR 755,
PC]). But where the person is dismissed from service, say, without
supplying him a copy of the enquiry officer’s report (Managing Director,
ECIL v. B. Karunakar [(1993) 4 SCC 727: 1993 SCC (L&S) 1184: (1993)
25 ATC 704]) or without affording him a due opportunity of cross-
examining a witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S)
62] ) it would be a case falling in the latter category — violation of a facet
of the said rule of natural justice — in which case, the validity of the order
has to be tested on the touchstone of prejudice, i.e., whether, all in all, the
person concerned did or did not have a fair hearing. It would not be correct
— in the light of the above decisions to say that for any and every violation
of a facet of natural justice or of a rule incorporating such facet, the order
passed is altogether void and ought to be set aside without further enquiry.
In our opinion, the approach and test adopted in B. Karunakar [(1993) 4
SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all
cases where the complaint is not that there was no hearing (no notice, no
opportunity and no hearing) but one of not affording a proper hearing (i.e.,
adequate or a full hearing) or of violation of a procedural rule or requirement
governing the enquiry; the complaint should be examined on the touchstone
of prejudice as aforesaid.”
24.In Union of India v K G Soni, (2006) 6 SCC 794 , it was opined by the
Supreme Court:
“14. The common thread running through in all these decisions is that
the court should not interfere with the administrator’s decision unless
it was illogical or suffers from procedural impropriety or was
shocking to the conscience of the court, in the sense that it was in
defiance of logic or moral standards. In view of what has been stated
in Wednesbury case [Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] the
court would not go into the correctness of the choice made by the
administrator open to him and the court should not substitute its24
SWP no.2108/2014
decision to that of the administrator. The scope of judicial review is
limited to the deficiency in the decision-making process and not the
decision.
15. To put it differently, unless the punishment imposed by the
disciplinary authority or the Appellate Authority shocks the
conscience of the court/tribunal, there is no scope for interference.
Further, to shorten litigations it may, in exceptional and rare cases,
impose appropriate punishment by recording cogent reasons in
support thereof. In the normal course if the punishment imposed is
shockingly disproportionate, it would be appropriate to direct the
disciplinary authority or the Appellate Authority to reconsider the
penalty imposed.”
25.The legal position was restated by the Supreme Court in State of Uttar
Pradesh v Man Mohan Nath Sinha, (2009) 8 SCC 310:
“15. The legal position is well settled that the power of judicial review
is not directed against the decision but is confined to the decision-
making process. The court does not sit in judgment on merits of the
decision. It is not open to the High Court to reappreciate and
reappraise the evidence led before the inquiry officer and examine the
findings recorded by the inquiry officer as a court of appeal and reach
its own conclusions. In the instant case, the High Court fell into grave
error in scanning the evidence as if it was a court of appeal. The
approach of the High Court in consideration of the matter suffers from
manifest error and, in our thoughtful consideration, the matter requires
fresh consideration by the High Court in accordance with law. On this
short ground, we send the matter back to the High Court.”
26.In the present case, after passing of the order by this Court in SWP
no.1249/2013, respondent-bank followed all the procedures envisaged
under the Regulations of 1977. Petitioner was given all the material. He
partook in the proceedings. He made representation. He even appealed
against the decision of Disciplinary Authority, which was also
considered by respondent-bank. In this view of matter, there is no
violation of principles of natural justice.
27.It is well-settled that if Disciplinary Authority accepts findings
recorded by Enquiry Officer and proceeds to impose punishment basis
the same, no elaborate reasons are required. It has been so explained by
the Supreme Court in Boloram Bordoloi v. Lakhimi Gaolia Bank
(2021) 3 SCC 806:
25
SWP no.2108/2014
“11. … Further, it is well settled that if the disciplinary authority
accepts the findings recorded by the enquiry officer and passes an
order, no detailed reasons are required to be recorded in the order
imposing punishment. The punishment is imposed based on the
findings recorded in the enquiry report, as such, no further elaborate
reasons are required to be given by the disciplinary authority. …”
28.The decision of disciplinary authority on proof of charge is not to be
interfered in exercise of judicial review by the constitutional courts. The
judicial review of the disciplinary proceedings is not an appellate
jurisdiction so as to enable the Court to substitute its opinion. The
parameters of judicial review are well settled. The interference with
disciplinary proceedings by the High Court under Article 226 of the
Constitution cannot be on the basis of reappreciation of evidence. The
Court cannot go on sufficiency and reliability of evidence. The Court
shall not interfere if there are some legal findings.
29.The scope of judicial review in reference to departmental inquiry
conducted against the public servant has been time and again discussed
and considered by the Supreme Court and High Courts. In State of
Andhra Pradesh v. Chitra Venkata Rao, (1975) 2 SCC 557, the Supreme
Court had laid down the para meters of judicial review. In paragraph 21
following has been laid down:
“21. The scope of Article 226 in dealing with departmental inquiries
has come up before this Court. Two propositions were laid down by
this Court in State of A.P. v. S. Sree Rama Rao. First, there is no
warrant for the view that in considering whether a public officer is
guilty of misconduct charged against him, the rule followed in
criminal trials that an offence is not established unless proved by
evidence beyond reasonable doubt to the satisfaction of the Court
must be applied. If that rule be not applied by a domestic tribunal of
inquiry the High Court in a petition under Article 226 of the
Constitution is not competent to declare the order of the authorities
holding a departmental enquiry invalid. The High Court is not a court
of appeal under Article 226 over the decision of the authorities holding
a departmental enquiry against a public servant. The Court is
concerned to determine whether the enquiry is held by an authority
competent in that behalf and according to the procedure prescribed in
that behalf, and whether the rules of natural justice are not violated.
Second, where there is some evidence which the authority entrusted26
SWP no.2108/2014
with the duty to hold the enquiry has accepted and which evidence
may reasonably support the conclusion that the delinquent officer is
guilty of the charge, it is not the function of the High Court to review
the evidence and to arrive at an independent finding on the evidence.
The High Court may interfere where the departmental authorities have
held the proceedings against the delinquent in a manner inconsistent
with the rules of natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities have disabled
themselves from reaching a fair decision by some considerations
extraneous to the evidence and the merits of the case or by allowing
themselves to be influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and capricious
that no reasonable person could ever have arrived at that conclusion.
The departmental authorities are, if the enquiry is otherwise properly
held, the sole judges of facts and if there is some legal evidence on
which their findings can be based, the adequacy or reliability of that
evidence is not a matter which can be permitted to be canvassed before
the High Court in a proceeding for a writ under Article 226.”
30.It is further held by the Supreme Court that jurisdiction of the High
Court under Article 226 of the Constitution is not that of an appellate
court inasmuch as findings of the fact reached by a tribunal as result of
appreciation of evidence cannot be questioned in writ proceedings. In
paragraph 23 of the judgment following has been laid down:
“23. The jurisdiction to issue a writ of certiorari under Article 226 is
a supervisory jurisdiction. The Court exercises it not as an appellate
court. The findings of fact reached by an inferior court or tribunal as
a result of the appreciation of evidence are not reopened or questioned
in writ proceedings. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to a finding of fact recorded by a
tribunal, a writ can be issued if it is shown that in recording the said
finding, the tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted inadmissible evidence
which has influenced the impugned finding. Again if a finding of fact
is based on no evidence, that would be regarded as an error of law
which can be corrected by a writ of certiorari. A finding of fact
recorded by the Tribunal cannot be challenged on the ground that the
relevant and material evidence adduced before the Tribunal is
insufficient or inadequate to sustain a finding. The adequacy or
sufficiency of evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive jurisdiction of
the Tribunal. See Syed Yakoob v. K.S.Radhakrishnan.”
31.Again, in Union of India and others v. P. Ganasekaran, (2015) 2 SCC
610, the same principles regarding judicial review of disciplinary
proceedings were reiterated. In paragraphs 12 and 13 following has
been laid down:
27
SWP no.2108/2014
“12. Despite the well-settled position, it is painfully disturbing to note
that the High Court has acted as an appellate authority in the
disciplinary proceedings, reappreciating even the evidence before the
enquiry officer. The finding on Charge I was accepted by the
disciplinary authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the High Court
is not and cannot act as a second court of first appeal. The High Court,
in exercise of its powers under Articles 226/227 of the Constitution of
India, shall not venture into reappreciation of the evidence. The High
Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that
behalf;
(c) there is violation of the principles of natural justice in conducting
the proceedings;
(d) the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and
merits of the case;
(e) the authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at such
conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High
Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience.” (emphasis supplied)
32.From the above it is deducible that the High Court has not to act as an
appellate authority in disciplinary proceedings, re-appreciating
evidence before enquiry officer inasmuch as the High Court is not and
cannot act as a second court of first appeal. The High Court in exercise
of powers under Article 226 shall not venture into reappreciation of
evidence. The High Court under Article 226 of the Constitution cannot
interfere with the conclusions drawn in the enquiry, in case the same
has been conducted in accordance with law. The High Court cannot go
28
SWP no.2108/2014
into adequacy of evidence nor can it go into reliability of evidence. TheHigh Court cannot correct the error of fact however grave it may appear
to be and it cannot go into the proportionality of punishment unless it
shocks its conscience.
33.To the above extent is also the decision of the Supreme Court in Central
Industrial Security Force and others v. Abrar Ali, reported in (2017) 4
SCC 507. In paragraphs 13 and 14 following has been laid down:
“13. Contrary to findings of the disciplinary authority, the High Court
accepted the version of the respondent that he fell ill and was being
treated by a local doctor without assigning any reasons. It was held by
the disciplinary authority that the unit had better medical facilities
which could have been availed by the respondent if he was really
suffering from illness. It was further held that the delinquent did not
produce any evidence of treatment by a local doctor. The High Court
should not have entered into the arena of facts which tantamounts to
reappreciation of evidence. It is settled law that reappreciation of
evidence is not permissible in the exercise of jurisdiction under Article
226 of the Constitution of India.”
34.It is worthwhile to mention here that there are specific and certain
allegations made against petitioner, which were enquired into by
respondent-bank. Petitioner was informed about those allegations. He
was afforded opportunity to project his case well-knit. He, as by his
own showing, submitted his side of story, which was taken note of and
considered by respondent-bank. He participated in the enquiry
proceedings, disciplinary proceedings and appeal proceedings.
Respondent-bank has had domain to conduct enquiry, to conduct
disciplinary proceedings and conduct appeal proceedings. He partook
in all proceedings.
35.Thus, the conclusions drawn either by Enquiry Officer, Disciplinary
Authority and/or Appellate authority on the basis of the material before
them cannot be said to be suffering from any infirmity which may
warrant judicial review by the Constitutional court. In view of legal
29
SWP no.2108/2014
position, this Court in exercise of powers under Article 226 cannot
reappreciate the evidence and give its opinion contrary to the findings/
opinions given by enquiry officer, disciplinary authority and appellate
authority of respondent-bank.
36.Impugned orders make it clear that Disciplinary Authority as well as
Appellate Authority have considered the whole material before it and
were satisfied to impose punishment on petitioner. Although
contentions have been made by petitioner with regard to each and every
charge, yet, in view of well settled law as discussed above, I would not
go individually into the same as I am not reappreciating the evidence.
Suffice it would be to say that broadly the charges were proved on the
basis of factual position which in turn was based on official
documentation. In such circumstances impugned orders do not call for
any interference.
37.Based on the above discussions, writ petition is devoid of any merit and
is accordingly, dismissed with connected CM(s). Interim direction, if
any, shall stand vacated.
(Vinod Chatterji Koul)
Judge
Srinagar
24.12.2024
‘Manzoor’
Whether approved for reporting? Yes/No.
30
SWP no.2108/2014