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TMI Blog2022 (1) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - Civil Appeal No. 8258 of 2009 - - - Dated:- 31-1-2022 - K.M. JOSEPH AND S. RAVINDRA BHAT, JJ. For the Appellant : Mr. Rajesh Kumar Gautam, Adv., Mr. Anant Gautam, Adv., Mr. Nipun Sharma, Adv., Mr. Madhur Tewatia, Adv., M/s. Mitter Mitter Co., AOR For the Respondent : Mr. Biswaroop Bhattacharya, Adv., Mr. Kunal Chatterji, Adv., Ms. Maitrayee Banerjee, Adv., Mr. Partha Sil, AOR, JUDGMENT S. Ravindra Bhat, J. 1. The Appellant (hereafter called the bank ) is aggrieved by a judgment of the Calcutta High Court Dated 16.12.2008 in FMA 2696/2007. By the impugned judgment, the division bench set aside the decision of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 60,000/- forming the subsidy component, (of the total ₹ 1,20,000/- disbursed to the beneficiaries) was misappropriated. The employee denied these allegations. The bank proceeded to conduct an enquiry. 4. The enquiry officer submitted his report on 05.05.2001. The report, inter alia, held that Sri Haradhan Bera, Pradhan of Chandabila Gram Panchayat, identified those persons claiming to be beneficiaries, in the enquiry. The enquiry officer relied on the evidence of seven beneficiaries, who deposed that no loan amount was disbursed, and that they had not received any reminder or letter from the bank, regarding return of loan amount and had not affixed their thumb impressions on the forms. The report also indicted the employee/Respondent for transferring the amounts to Sri Madan Mohan Saha, another employee (CCG) of the bank. Furthermore, the report placed strong reliance on a confessional statement made by others charged, including Sri Subhendu Dash, Ex-Pradhan of Chandabila at the time of the incident (document X, photocopy of the alleged confession dated 03.03.1994). The enquiry officer therefore, found that the employee was guilty of the charges. The report noted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence to prove that loan and subsidy had been disbursed to twelve fictitious persons was erroneous. This conclusion was in spite of the fact that seven individuals deposed that they had not received any loan and subsidy amount nor did they affix their thumb impression on the applications. Likewise, the court could not have gone into the question of whether the confession statement of Sri Madan Mohan Saha and Sri Subhendu Kumar Das dated 03.03.1994 was not admitted into evidence. This, it was submitted, was contrary to the record. Counsel highlighted that the contents of that confession were not denied by the employee. 9. Learned Counsel argued that the impugned judgment was erroneous as it held that the Respondent employee had been prejudiced in the enquiry due to non-production of certain documents claimed by him. Those documents were not produced as they were untraceable in the branch or regional office. In fact, charge No. 4 against the delinquent officer dealt with unauthorised removal of those very documents. 10. It was lastly urged that the impugned judgment, if allowed to stand, would undermine discipline in banks. Elaborating on this aspect, learned Counsel submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent could not be bound by the contents of that document. 13. Mr. Chatterji argued that though the scope of judicial review in departmental proceedings is restricted, clearly where it is shown that the outcome of the enquiry is either procedurally unfair or illegal, or its outcomes are based on findings that are based on irrelevant facts, without taking 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 confession was allegedly recorded in the document (i.e., Sri Madan Mohan Saha and Sri Subhendu Kumar Das) were not examined as witnesses to verify it. Despite these glaring infirmities with respect to the evidence recorded which did not point to the Respondent's complicity, he was held guilty. This finding was perverse and not based on sufficient evidence. Counsel submitted that sufficiency of evidence means existence of some evidence which links the charged officer with the misconduct alleged against him. He relied on Sher Bahadur v. Union of India and Ors (2002) 7 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The finding on charge relating to removal of documents was not proved, since it was based on no evidence. The Respondent was transferred out of the branch in 1990 and the proceedings were initiated in 1997. Sri Madan Mohan Saha was working in the branch after the Respondent's transfer. So, it could not conclusively be established that the Respondent removed those documents to conceal the misappropriation and to destroy them. (e) The division bench also observed that with respect to the last charge the enquiry officer recorded that: The Management side could not establish the reason for crediting of Rs. 34,000.00 on 28.06.94 to different 28 loan accounts out of the fund transferred from S.S. Account of Sri Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on 28.06.94. Moreover, Sri Haradhan Bera in his evidence avoided the matter for some reasons best known to him. But for the above, there is no effect on the charge No. 5 which 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 dated 30.05.1994 to Shri Madan Mohan Saha and Shri Saha deposited the amounts of drafts in his own and joint S.S. Accounts. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the Respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the Respondent's grievance is well founded, because, in our opinion, the finding which is implicit in the Appellant's order dismissing the Respondent that Charge 3 is proved against him is based on no evidence. 17. Apart from cases of no evidence , this Court has also indicated that judicial review can be resorted to. However, the scope of judicial review in such cases is limited T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255. In B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 a three-judge bench of this Court ruled that judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. 18. Other decisions have ruled that being a proceeding before a domestic tribunal, strict Rules of evidence, or adherence to the provisions of the Evidence Act, 1872 are inessential. However, the procedure has to be fair and reasonable, and the charged employee has to be given reasonable opportunity to defend himself (ref: Bank of India v. Degala Suryanarayana (1999) 5 SCC 762 a decision followed later in Punjab Sind Bank v. Daya Singh (2010) 11 SCC 233). In Moni Shankar v. Union of India (2008) 3 SCC 484 this Court outlined what judicial review entai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are available, and intervention, warranted. For any court to ascertain if any findings were beyond the record (i.e., no evidence) or based on any irrelevant or extraneous factors, or by ignoring material evidence, necessarily some amount of scrutiny is necessary. A finding of no evidence or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority. However, the margin of appreciation of the court Under Article 226 of the Constitution would be different; it is not appellate in character. 20. In the present case, the impugned judgment discloses scrutiny of the record. The same level of scrutiny is absent in the decision of the learned Single Judge. That the division bench conducted the kind of scrutiny that it did, cannot be a factor to hold its decision erroneous. In this context, it would be worth recollecting Bernard Schwartz In Administrative Law, 2nd edn., p. 584. that judicial review-of administrative decisions: warrants a minimum level of scrutiny: If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 22. The third charge of misappropriation of the entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha was based on a confessional statement (document 'X'). A copy of that document is on record. The relevant part reads as follows: Today on dated 3.3.94, in the presence of Manager babu of UBI, Chandabila Branch the statement of Cashier babu (Madan Mohan Saha) has been recorded in the presence of following persons. The loan amount in respect of 10 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 Biswanath Bhattacharyya, (Manager) (3) Sri Madan Mohan Saha (Cashier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There are decisions of this Court (J.D. Jain v. Management of State Bank of India 1982 (1) SCC 143 and State Bank of India v. Hemant Kumar 2011 (2) SCC 22) where witness depositions which stated that the charged employee had previously confessed or admitted his role and guilt, were held to be admissible. In the present case, however, 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. 24. As far as the other two charges go, the division bench correctly 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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