2022 (1) TMI 1347 - SC - Indian Laws

Complicity of charges - Failure to discharge the duty to maintain the subsidy register - depositing subsidy in the account of twelve fictitious beneficiaries - Misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha - Charge relating to removal of documents - Transferring amounts through three demand drafts from the account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94 - It is argued on behalf of the bank that the High Court re-appreciated the evidence and altered the finding on facts of the disciplinary authority on the ground of insufficiency of evidence. Failure to discharge the duty to maintain the subsidy register - HELD THAT - MW 1, the management witness, who deposed about the procedure in the bank, for recording entries in the subsidy register, clearly stated that at the relevant time, some entries were made by the Respondent, and some by Sri Madan Mohan Saha, who used to maintain the subsidy register on most occasions. He also deposed that it was Sri Madan Mohan Saha's duty as the cashier to maintain the subsidy register. Saha failed to discharge that duty. In view of this evidence, and no contrary documentary evidence casting the primary responsibility to maintain the subsidy register on the Respondent, the impugned judgment, in this Court's opinion, cannot be faulted with in concluding that there was no material to prove the first charge against the employee. Depositing subsidy in the account of twelve fictitious beneficiaries - HELD RHAT - The enquiry officer did not Rule on this. The impugned judgment concluded that in the absence of proof of Sri Haradhan Bera's identity, and any independent material, with respect to the seven alleged beneficiaries, 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 to a 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 the beneficiaries. Such being the case, the involvement of the Respondent employee had to be shown by more definitive evidence. It is again a matter of record, that the then Pradhan of the Gram Panchayat, Sri Subhendu Kumar Das, identified the borrowers. In these circumstances, even in departmental proceedings, there had to be some overt evidence, and not mere suspicion, to support a valid finding of complicity of the Respondent. In these circumstances, the impugned judgment cannot be faulted with in its findings on the second charge. Misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha - HELD THAT - In the present case, 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 clearly erred by relying on such extraneous matters, as the Respondent could not be made a scapegoat for the confession of others, especially with regard to his role. The bank's charge about his complicity had to be proved by evidence. This document, containing others' confession, could not have been used against him. Charge relating to removal of documents - HELD THAT - There was no evidence to show that the Respondent had removed the documents, from the bank. Importantly, he was charged seven years after the alleged incident; by that time other managers had taken over the branch. Transferring amounts through three demand drafts from the account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94 - HELD THAT - The enquiry officer noted that, Sri Haradhan Bera in his evidence avoided the matter for some reasons best known to him. In the absence of any other material, the finding that the amounts had been misappropriated by the Respondent, who in connivance with Sri Madan Mohan Saha, and Sri Subhendu Kumar Das, ensured that the loan component was returned to the bank, cannot be said to have been established. An interesting side is this-Sri Madan Mohan Saha, who confessed to the misconduct, was charged and proceeded with departmentally. 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 by the lower standards of acceptable proof in departmental inquires, was held to be guilty and visited with the penalty of dismissal. A reading of the disciplinary authority's order reveals that his past record of minor misconduct played a major role in determining his guilt, despite lack of evidence, and the extreme penalty of dismissal. The impugned judgment cannot be faulted with. The appeal is unmerited.

Summary

Issues Involved:
1. Legality of the High Court's re-appreciation of evidence in disciplinary proceedings.
2. Validity of the evidence used to support the charges against the employee.
3. Procedural fairness in the disciplinary enquiry.
4. Impact of the employee's past conduct on the disciplinary authority's decision.
5. Appropriateness of the penalty imposed on the employee.

Issue-wise Detailed Analysis:

1. Legality of the High Court's Re-Appreciation of Evidence:
The bank argued that the High Court erred by re-appreciating the evidence and altering the findings of the disciplinary authority, which is contrary to the settled proposition that courts in judicial review cannot weigh the evidence appreciated by a domestic tribunal. The bank cited several decisions to support this contention, including UP State Road Transport Corporation v. Har Narain Singh and State Bank of India v. Ram Dinkar Punde. The Supreme Court, however, noted that judicial review is warranted where findings are not based on evidence or are perverse. The division bench's scrutiny of the record was deemed necessary to ascertain if the findings were beyond the record or based on irrelevant or extraneous factors.

2. Validity of the Evidence Used to Support the Charges:
The charges against the employee included misappropriation of funds and procedural irregularities. The enquiry officer's report relied on the evidence of seven beneficiaries who denied receiving loans and a confessional statement by other employees. The High Court found that the identity of the beneficiaries was not independently verified, and the confessional statement was not admitted into evidence nor signed by the employee. The Supreme Court agreed that the evidence was insufficient to prove the charges, noting that the confessional statement could not be used against the employee as it was not signed by him and the authors of the confession did not testify.

3. Procedural Fairness in the Disciplinary Enquiry:
The employee contended that the enquiry was procedurally unfair as documents directed to be produced were withheld, causing serious prejudice. The Supreme Court emphasized that procedural fairness and reasonable opportunity to defend are essential in departmental proceedings. It was noted that the enquiry officer relied on a photocopy of a confessional statement, which was not produced in original, and the employee did not admit to its contents. The Court found that the enquiry was procedurally flawed and the findings were based on insufficient evidence.

4. Impact of the Employee's Past Conduct on the Disciplinary Authority's Decision:
The disciplinary authority considered the employee's past conduct while imposing the penalty of dismissal. The Supreme Court observed that while past conduct can be a factor in determining the penalty, it should not overshadow the requirement of proving the charges based on evidence. The Court noted that the past record of minor misconduct played a major role in determining the employee's guilt, despite the lack of credible evidence.

5. Appropriateness of the Penalty Imposed on the Employee:
The Supreme Court found that the penalty of dismissal was disproportionate given the lack of credible evidence against the employee. It was highlighted that another employee who confessed to the misconduct received a milder penalty of withholding increments, while the employee who did not admit guilt and against whom there was no credible evidence was dismissed. The Court directed the bank to reinstate the employee, calculate all his benefits, and fix his pension, if admissible, within three months.

Conclusion:
The Supreme Court upheld the High Court's decision, concluding that the disciplinary authority's findings were not based on sufficient evidence and the enquiry was procedurally unfair. The penalty of dismissal was deemed disproportionate, and the employee was directed to be reinstated with all consequential benefits. The appeal was dismissed without order on costs.