Calcutta High Court
Oriental Bank Of Commerce And Ors. vs Sumanta Kumar Nayak And Anr. on 28 November, 2006
Equivalent citations: 2007(3)CHN461
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar, N. Patherya
JUDGMENT V.S. Sirpurkar, C.J.
1. This appeal is filed by Oriental Bank of Commerce (hereinafter called 'bank' for short) against the judgment of the learned Single Judge whereby the writ petition filed by one of its employees, one Sumanta Kumar Nayak challenging the departmental inquiry proceedings and the resultant punishment of removal of the petitioner was allowed by the learned Single Judge of this Court quashing both. Few facts would have to be necessary to understand the controversy involved.
2. Original writ petitioner, Shri Sumanta Kumar Nayak, was working in the bank as Senior Manager when he came to be served with a chargesheet. There was only one charge which was as follows:
Charge No. 1:
Shri Sumanta Nayak, Senior Manager, Cuttack Branch was appointed in Bank's Service as Probationary Officer vide letter dated December 24/28, 1982 on recommendation of Banking Service Recruitment Board (Delhi) vide their letter 3.9.81 dated 17.11.1981 under S/Tribe Category. At the time of his appointment in the bank, Shri Sumanta Kumar Nayak submitted forged caste certificate purportedly issued by Shri D. Mishra, O.A.S. Tohsildar Udala stating that he belongs to 'Bhuyan' Tribe which is recognized as Scheduled Tribe under the Constitution of Scheduled Caste and Scheduled Tribe Order, 1950 as amended by the Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976.
Sd/-
GENERAL MANAGER (PERS) DISCIPLINARY AUTHORITY.
2.1. In pursuance of that chargesheet, a full-fledged departmental inquiry was conducted against him. The Inquiry Officer came to the conclusion that the charge was held to be proved. But before the termination order was passed, the petitioner rushed to this Court since he was called upon to submit his reply to the proposed penalty. In that, the petitioner did not even file an appeal before filing the writ petition.
3. The case pleaded by the petitioner (hereinafter called 'delinquent officer') was that he had passed his B. Com. (Hons.) examination in the year 1977 from Bhadrak College in the State of Orissa and after completing his M. Com. Degree from Utkal University, he came across an advertisement published by Banking Service Recruitment Board, New Delhi (hereinafter 'BSRB' for short) in the year 1981 inviting application from eligible candidates for the post of Probationary Officer in the various nationalized banks in the country. He pleaded that while submitting his application along with the necessary particulars and/or documents required by BSRB in the said advertisement, he had specifically made it clear that he was applying as a general candidate (and not as a Scheduled Tribe candidate). He referred to the four documents, (a) Original application submitted to BSRB with list of enclosure duly filled up by the petitioner and with his photograph affixed to the same, (b) Original admit card issued by BSRB with his roll No. printed thereon and his photograph affixed, (c) Original BSRB selection form with verified list of enclosure duly filled up by the petitioner and with his photograph affixed thereon and (d) Original employment form supplied by the bank at the time of the petitioner's entry into service duly filled up by him with his full bio-data enclosed and photograph affixed thereon. He further pleaded that he had never misrepresented before the BSRB and had never claimed that he belonged to Scheduled Tribe. The aforementioned four documents, however, were not filed by the petitioner along with the petition. The petitioner claimed that all through the bank was aware of the fact that he was belonging to the general category and not to the Scheduled Tribe category. He then referred to the show-cause notice served by the bank on him wherein it was alleged that while seeking employment as a Probationary Officer, he had submitted a forged caste certificate to the BSRB certifying that he belonged to the Scheduled Tribe. He further pleaded that he replied to the said show-cause notice and claimed that he was innocent as he had never claimed to be belonging to the Scheduled Tribe. A reference was then made to the chargesheet served upon the petitioner and the documents accompanying the chargesheet. It is contended that the copies of the marksheets relied upon by the bank did not pertain to the petitioner and that the bank should have, infact, produced the documents (a) to (d), referred to earlier in the petition. A complaint was then made that these documents were never produced. He, therefore, pleaded that in that view he was denied as effective opportunity of conducting the defence in a suitable manner. He then made reference to his representation dated 7.11.2000 whereby he raised an issue of non-supply of the aforementioned documents (a) to (d) referred to earlier. He also made a reference that he has sought for a copy of a purported representation alleged to have been submitted by the petitioner to the Ministry of Finance, Government of India which was relied upon by the bank in the inquiry. However, even the said document was not furnished to the petitioner. It is then contended that though he had requested for the aforementioned documents, the bank took the stand that those documents were not traceable. He, therefore, complained that the inquiry, which proceeded without those documents, was no inquiry in the eye of law and the verdict in the same also was not borne out at all. The petitioner also pleaded that a document M-26 which was produced during the inquiry was a false document inasmuch as some overwriting was made to suggest that the petitioner had claimed the status to be belonging to Scheduled Tribe. The petitioner also refers to the findings recorded by the inquiring authority which were sent to Central Vigilance Commission, New Delhi ('CVC' for short) and the advise tendered by the CVC for imposing the penalty of removal. He then complained that though he was asked to submit his reply, he was not furnished with the copy of the "written brief on behalf of the bank submitted before the investigating authority. He, therefore, claimed that Regulations of 1982 were breached on account of this non-supply of written brief. The inquiry was assailed by the petitioner in the writ petition on various other grounds.
4. The bank opposed this claim of the petitioner pointing out in its affidavit -in-opposition that the petitioner was proceeded against strictly in accordance with the provisions of Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations, 1982 and he was offered due reasonable and adequate opportunity to defend himself in the inquiry in consonance with the principles of natural justice and it was only thereafter, he was found guilty of the charge by the Inquiry Officer. It was pointed out that full opportunity was given to the petitioner to cross-examine the witnesses tendered on behalf of the bank. The Inquiry Officer had directed the presenting officer to make available to the petitioner the documents prayed for by him and in compliance of such direction, the presenting officer had made genuine endeavours to supply the required documents. However, those documents were not in the custody of the bank and could not be so furnished to the petitioner. It is reiterated further that the bank had forwarded the inquiry report to the CVC in view of paragraph 12.44 of the Special Chapter on Vigilance Management in Public Sector banks for second stage advice. It is pointed out that even thereafter, on receipt of the advice of the CVC, the copy of the same was given to the petitioner to enable him to make representation not only against the report of the Inquiry Officer but also against the advice issued by the CVC. It was reiterated further that the issues raised by the petitioner could have been settled in a departmental appeal for which there was a provision. However, the petitioner had rushed to this Court by way of a writ petition. It is pointed out that the petitioner was not selected as a general candidate by the BSRB, but as a Scheduled Tribe candidate which was clear from the letter dated 17th November, 1981 issued by the Secretary of the BSRB addressed to the Chief Personnel Officer of the said bank, the copy of which was proved during the inquiry proceedings. It was, therefore, reiterated that unless the petitioner had claimed himself as a Scheduled Tribe candidate, the BSRB could never have selected him as a Scheduled Tribe candidate. It was pointed out further that a copy of the fake caste certificate was produced during inquiry and in that the petitioner's name was clearly written and it was obviously fake because even the Tahsildar who had purportedly signed the said certificate, was not even in service. It was obvious, therefore, that the certificate offered by the petitioner before the BSRB was a fake certificate. It was then pleaded on behalf of the bank that the petitioner had, in fact, belonged to the 'Khandayat' caste which was not a recognized Scheduled Caste which was clear from the communication of the verifying authority. The bank also relied on the Bio data dossier maintained by the bank wherein he was shown to be belonging to the Scheduled Tribe. It was pointed out that the petitioner never objected to the communication from BSRB in which he was recommended as a Scheduled Tribe candidate. It was reiterated that the banking management had made sincere effort to collect all the documents relied upon by the bank as also sought for by the petitioner, but since those documents were not in the custody of the bank, the said documents could not be supplied. It is then pointed that some of the documents were not traceable in the records of the Board or the bank. The bank took a clear stand that the petitioner made no efforts to get those documents to prove his innocence on which the bank was relying upon. It was pleaded that it was not for the bank to arrange for his defence. As regards the document being Ext. M-26, it is reiterated that the petitioner had himself made his category as Scheduled Tribe and that there was no overwriting on that document and the petitioner himself had indicated his category as Scheduled Tribe. In that view, it was denied that the petition had any merits at all. The bank relied upon number of documents which were filed along with its affidavit-in-opposition.
5. The petitioner thereafter filed the affidavit-in-reply which was equally bulky like his petition. In this affidavit-in-reply, the petitioner merely challenged the documents filed by the bank along with its affidavit-in-opposition. He reiterated that it was after the petition had been filed that the removal order came to be passed as he had expected. He again referred to the aforementioned documents at (a) to (d) and pointed out that the alleged caste certificate dated 3.10.1977 was never submitted by him at the time of seeking entry into the service before the BSRB. He further reiterated that there was an anonymous complaint against the writ petitioner on the basis of which the whole inquiry proceeded with and, therefore, obviously some fake certificates came to be supplied to the bank which were being used by the bank against him. He again reiterated his plea of lack of opportunities because of the non-supply of the documents.
6. During the inquiry, the delinquent officer has written as many as eight letters wherein barring few letters, in practically all the letters he reiterated the demand for the aforementioned documents. For the first time he had raised and named those documents in his letter dated 7.11.2000. The bank had initially submitted 22 documents along with the chargesheet. During the inquiry, the bank supplied four more documents. In one such document, M-26, there is a claim that he had described his status as belonging to Scheduled Tribe. During the inquiry, only one witness came to be examined who presented all the documents and also gave his oral evidence. He was allowed to give his cross-examination by the representative of the delinquent officer. It is also to be noted that no formal written statement has been given by the delinquent officer though a full return brief was served upon him. Even earlier barring the eight communications made, he has not given a formal written statement as such. Ultimately on the basis of these documents, four conclusions were reached by the Inquiry Officer which are as under:
1. The name of CO was recommended by the recruiting agency i.e. BSRB under ST category vide their letter dated 17.11.1981 and admission of the CO that he had appeared for a written Test/Interview for the post of Probationary Officer in bank in the year 1981.
2. Copy of caste certificate in the name of the CO has been attested by the same person who had attested the marksheet and other certificates of the CO which the CO has not disputed.
3. The CO had appeared for an interview for promotion to MMGS-III in the year 1995 and was not found suitable by the competent authority. The representation received through Ministry of Finance, though missing from record, was made by the CO as is evident from the reply submitted by the bank to the Ministry vide letter dated 14.8.1995.
4. The CO in his bio-data form submitted at the Staff Training College during course of training on 23.1.1998 to 24.1.1998 himself stated that he belongs to ST category.
7. During the pendency of the writ petition which was filed on service of a show-cause notice to the delinquent officer, but before the removal order was passed, the bank issued a removal order which was taken note of by the learned Single Judge. The main contention raised before the learned Single Judge was that this was a case of no evidence against the delinquent officer and as such, the delinquent officer could not have been held guilty. It was secondly contended that though the documents were sought for right from the beginning and were insisted upon during the pendency of the departmental inquiry, those documents were not supplied by the bank so that the delinquent officer suffered his defence. It was also reiterated that there was no valid explanation given by the bank regarding the whereabouts of the documents. The learned Judge noted firstly that the original application filed by the delinquent officer before the BSRB was not available and was also not made available. It was further noted that even the second document, that is the admit card issued by the BSRB along with the photograph of the delinquent officer was also not available and was not supplied. Same was the case regarding the selection from which was duly filled up by the delinquent officer. It was noted by the learned Judge that though the bank's Emplyment Form was stated to have been not available, it was ultimately produced. However, the learned Judge found that form to be innocuous as it did not disclose anything regarding the status of the delinquent officer. The learned Judge then also took note of the fact that during the inquiry, the stand was taken that the documents were not available with the BSRB. The learned Judge at page 191, internal page No. 6 of his judgment observed:
In course of hearing here, an order was passed by this Court asking the respondents to produce the original enquiry records and the said order was communicated by the learned Advocate for the petitioner, whereupon the Recruitment Board authorities informed by their letter dated November 7, 2001 that the said records are not kept by the Recruitment Board as per their guidelines and all such papers are sent to the bank at the time of allotment of successful candidates to the bank concerned.... It also appears from the contemporaneous documents being the letter dated November 17, 1981 issued by the Banking Service Recruitment Board (Annexure R-4 to the affidavit-in-opposition) that while forwarding the names of the candidates approved by the Recruitment Board after the written test and interview their relevant papers were also sent.
7.1. The learned Judge then came to the conclusion from this to the effect that all the papers which were filed by the delinquent officer before the BSRB including the application filed by the delinquent officer before the Recruitment Board and his admit card were lying with the banking authority and had not been produced in course of hearing or at any subsequent point of time. The learned Judge clearly observed that though large number of documents were filed both by the petitioner and the respondent since they related to the subsequent period and since the charge was restricted to the petitioner's submitting forged caste certificate while seeking employment in the bank through BSRB, such documents were of no help to any party. The learned Judge, therefore, ignored all the documents regarding the subsequent period wherein the petitioner had claimed himself to be belonging to the Scheduled Tribe and proceeded to examine the only question as to whether at the time of the petitioner's entry into the service, he had submitted a false caste certificate. At internal page No. 10 of his judgment, the learned proceeded to record a finding that even if it was correct that the petitioner was considered by the Recruitment Board as a Scheduled Tribe candidate, there was no material to show that the same was at the instance of the petitioner. The learned Judge rejected the attested copy of the caste certificate on the ground that the original caste certificate was not on the record of the inquiry nor did it bear the signature of the petitioner. Ultimately, the learned Judge came to the conclusion that since even the admit card which was sought for, was not produced by the bank though it was supposed to be in their possession, there was no evidence on record to show that the petitioner at the time of entry into the service had made any misrepresentation. In that view, the learned Judge allowed the writ petition holding that there was no material to support the charge and that the Inquiry Officer was not justified in holding the petitioner guilty.
8. Shri Hirak Mitter, the learned Senior Counsel, appearing on behalf of the appellant took us through all the documents. The record of the inquiry was also produced before us including the deposition of the witness as also the examination of the delinquent officer. The learned Counsel then pointed out to us that the inference of the learned Judge that it was a case of no evidence, was patently incorrect. His thrust particularly was on the letter dated 17.11.1981 issued by the BSRB wherein it was clearly mentioned that the petitioner was selected as a Scheduled Tribe candidate. He then points out that the petitioner has been mentioned as a candidate belonging to the Scheduled Tribe in the records maintained by the bank in which all the entries excepting the one regarding the petitioner belonging to Scheduled Tribe are undisputed. The learned Counsel then points out that admittedly the petitioner was sent for the STC Training on 23.1.1998 and 24.1.1998 wherein a form was signed by the delinquent officer declaring his status as belonging to the Scheduled Tribe. He further pointed out that when the petitioner had not been selected for the promotion, he made a complaint to the Ministry of Finance that his Scheduled Tribe status was overlooked on which there was an inquiry whereupon the Assistant General Manager (Personnel) had written a letter dated 14.8.1995 to one Shri V. Viswanathan, Section Officer, SCT, Ministry of Finance in response to his letter dated 4.8.95 bearing No. 18/21/95-SCT(B)/FM informing that all the norms were observed regarding the Scheduled Tribe candidates while interviewing those candidates. The learned Counsel then invited our attention to the xerox copy of the attested caste certificate along with the marksheets of the petitioner and pointed out that the same attesting officer had attested the caste certificate as well as the marksheet which admittedly belonged to the delinquent officer. The learned Counsel, therefore, asserted that there was a connection established in all those documents on one side and the delinquent officer on the other. He further pointed out that even that caste certificate was admittedly found to be false as the Tahsildar who is supposed to have signed that caste certificate was not even an in-charge Tahsildar at that point of time which is clear from the explanation which the bank got from the Additional District Magistrate, Mayurbhanj in his letter dated 15.7.1999 bearing No. 2017/G & M. The learned Counsel attacked the judgment on the ground that the learned Judge had refused to consider such voluminous material which, though pertained to subsequent period to his entry into the service, was extremely relevant at least to support the bank's case. The learned Counsel also very heavily relied on the fact that the petitioner had not taken any definite step against these documents, more particularly, about the attested documents like the caste certificate and the marksheets, the copies of which were given to the delinquent officer and during the inquiry, he had accepted that they were the xerox copies of the genuine documents. The learned Counsel, therefore, urged that under no circumstances could this case be described as a case of no evidence. According to the learned Counsel, the learned Judge assumed for himself a role of an appellate authority and proceeded to appreciate the evidence. The learned Counsel lastly urged that even if the so-called four documents sought for by the delinquent officer were not supplied, it hardly mattered because even otherwise the case of the bank was substantiated by the other documents.
9. As against this, the learned Counsel, Shri Talukdar, appearing for the respondent supported the judgment and also filed certain documents to suggest that the marksheets were fake documents. The learned Counsel has filed before us the alleged original correct marksheet of the delinquent officer as also his caste certificate which show that they differed from those which have been used in inquiry. The learned Counsel says that it cannot be forgotton that the case was started on the basis of an anonymous complaint against the delinquent officer and someone might have planted the false documents in the bank's records. The learned Counsel, however, urged that the documents which the delinquent officer was clamouring for were never supplied to him and the bank had no satisfactory explanation as to where the documents had gone, more particularly, as the BSRB had insisted that all the relevant documents were sent to the bank. According to the learned Counsel, the documents could not have vanished into the thin air and their non-production had prejudiced the petitioner which prejudice was rightly appreciated by the learned Judge. On these rival contentions, we have to examine the correctness of the judgment.
10. In State of T.N. and Anr. v. S. Subramaniam reported in 1996(7) Supreme Court Cases 509, the Constitution Bench of the Supreme Court has clarified the power of judicial review in respect of the departmental inquiries. In paragraph 5 of the judgment, the Court observed that it was the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It was further reiterated that in judicial review, the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. It was reiterated that judicial review is not an appeal from a decision but a review of the manner in which the decision is made and that it was meant to ensure that the delinquent receives fair treatment. The Court observes that the judicial review was not for the purposes of testing the correctness of the conclusions during the departmental inquiry. It is reiterated that when the conclusion reached by the authority was based on evidence, the Tribunal is devoid of power to reappreciate the evidence and to come to its own conclusion. It is further observed:
The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence.
10.1. The Constitution Bench for this conclusion relied on B.C. Chaturvedi v. Union of India , State of T.N. v. TV. Venugopalan reported in 1994(6) Supreme Court Cases 302, Union of India v. Upendra Singh and Govt, of T.N. v. A. Rajapandian .
11. Similar view was reiterated by the Supreme Court later on in Bank of India and Anr. v. Degala Suryanarayana, . In both these cases, the Court also observed that the strict rules of evidence are not applicable to departmental inquiry proceedings. It was expressed that the only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Of course a word of caution was also used by saying that mere conjecture or surmises cannot sustain the finding of guilt even in departmental inquiry proceedings. Even in the later mentioned case, the Supreme Court clearly held that the Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrive at in the departmental inquiry proceedings except in a case of mala fides or perversity, that is, where there is no evidence to support a finding or where is such that no man acting reasonably and with objectivity, could have arrived at that finding. The Court further went on to say that reappreciating of evidence or weighing the same like an appellate authority was not permissible.
12. In another decision in High Court of Judicature at Bombay v. Shashikant S. Patil and Anr., , the Court in paragraph 16:
The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
13. From these three decisions, it is clear that the law is well-settled. We have to see as to whether the learned Judge was right in reversing the finding of the disciplinary authority.
14. The learned Judge has proceeded on the basis that this was a case of no evidence for which the learned Judge relied on the language of the charge which undoubtedly referred to the delinquent officer submitting a forged caste certificate at the time of his appointment in the bank. On the logic that the charge pertained to the period of the delinquent officer's entry into the bank, the learned Judge went on to hold firstly that the non-supply of the documents sought for by the delinquent officer was fatal as perhaps those were the only documents which pertained to the period of his entry into the bank's service. Carrying on the logic further, the learned Judge practically refused to consider the other documents. We would consider firstly the material relied upon by the Inquiry Officer and test as to whether the learned Judge was right in rejecting that material.
15. At the end of the inquiry report, the Inquiry Officer has drawn four conclusions. The first conclusion relates to the letter sent by BSRB, which was a recruiting agency, recommending the name of the delinquent officer under the Scheduled Tribe category. This letter dated 17.11.1981 was by far the basis of the charge against the delinquent officer. It clearly mentions that the delinquent officer was being recommended as a candidate belonging to Scheduled Tribe. The BSRB is a body which holds the examination for recruitment of bank officers. There is no dispute that the petitioner had appeared for the examination held by the BSRB in the year 1981. There can also be no dispute that the BSRB is an official body and is bound to act as per the rules. There is an official procedure for its working. It also cannot be disputed that by describing the petitioner in the reserved category of the Scheduled Tribe, the petitioner was put at an advantageous position, vis-a-vis, the general candidates. One fails to understand as to why would an official body like the BSRB, describe the petitioner to be an Scheduled Tribe candidate while recommending his name unless the status of Scheduled Tribe was claimed by the petitioner at the time of appearing for the examination. It is not possible for the BSRB to dream about the petitioner's status as a Scheduled Tribe nor was it possible for that official body to collect the documents like the caste certificate and the marksheets of the petitioner for the Higher Secondary Examination and the other examinations. It is not suggested that there was anybody in the BSRB who had a grudge against the petitioner or that there were any mala fides on the part of anybody from that organization. Under such circumstances, the only irresistible inference that was possible was that the petitioner himself had claimed the Scheduled Tribe status. This extremely important piece of evidence was rejected by the learned Judge in the following manner - "Even if it is correct that the petitioner was considered by the recruitment board as Scheduled Tribe candidate, there is no material whatsoever to show that the same was at the instance of the petitioner."
15.1. We do not think that this was a correct way to appreciate the official letter sent by a statutory body like the BSRB as obviously there would be a presumption under Section 114(e) of the Evidence Act to the act performed by the BSRB in describing the petitioner to be belonging to the Scheduled Tribe category.
16. The second conclusion is about the caste certificate and the marksheets. The case of the bank was that the attested copy of the caste certificate (M-6), attested copy of the conduct certificate (M-7), attested copy of the marksheet of H.S. Examination of 1973 (M-8), attested copy of the First Year Science marksheet (M-9) and the attested copy of the B.Com(Hons.) Examination of 1977 (M-10) were attested by the same authority. All these documents were attested by one B.C. Das, Reader/Lecturer, Department of Political Science, Bhadrak University where the delinquent officer was studying and where he had completed his graduation. The Inquiry Officer has noted that the delinquent officer had not disputed the genuineness of the copies of the documents Ext. M-7 to M-10 and Ext. M-6 when those documents were supplied to him.
16.1. Shri Mitter also took us through the inquiry proceedings where there is a clear cut admission on the part of the delinquent officer. This admission was given when the inquiring authority directed that the delinquent officer may inspect the originals of the management documents. The delinquent officer then said - "Sir, I have inspected the originals and have no dispute over their authenticity". Therefore, at least at the time when the inquiry was being conducted, the delinquent officer did not dispute the authenticity of Exts. M-7 to M-10 and Ext. M-6, which was the caste certificate allegedly issued by one D. Mishra. There is no dispute raised at that time that M-6, which was a xerox copy of the attested copy of the caste certificate and the other documents were wholly fake documents. If the bank produced these documents, they had to be obviously in the possession of the bank for which no questions were raised by the delinquent officer in the inquiry. It was obvious that if the caste certificate bore the signature of the same attesting officer as also the marksheets of the delinquent officer, then there was a definite nexus between that caste certificate on one hand and the delinquent officer on the other. On the backdrop of the letter by the BSRB dated 17.11.1981, this fact was bound to be considered by the learned Judge. The learned Judge has brushed aside this caste certificate on the ground that the caste certificate, was merely a xerox copy and although the other documents were available in the inquiry file in original, however, the original of the said cast certificate was not available there. Now here in rejecting the caste certificate on that sole ground amounted to applying the rules of evidence regarding the primary evidence and the secondary evidence which was not permissible in the judicial evidence and which rules were not applicable to departmental proceedings. Therefore, we are convinced that the Inquiry Officer was right in reading a connection between the letter sent by the BSRB dated 17.11.1981 describing the delinquent officer as a Scheduled Tribe candidate and the four documents including the caste certificate.
16.2. The suggestion by Shri Talukdar, on the other hand, that these documents might have been planted by somebody in the bank records appears to be far fetched. The learned Judge also has not come to that conclusion. The learned Counsel argues that if somebody sent an anonymous complaint against the delinquent officer, the same person could have also planted these documents' in the bank records. We do not think that such a far fetched view can be taken, particularly when such has not been the stand expressed by the delinquent officer either in his eight letters sent to the Inquiry Officer or during the inquiry when the presenting officer had offered himself for the cross-examination.
16.3. There is an unequivocal stand taken by the delinquent officer that he did not and does not belong to the Scheduled Tribe. It also appears to be an undisputed position that the certificate is a fake document since the authority which purports to have issued the same - one Shri D. Mishra, was not even the Tahsildar at the relevant time. The other details in the caste certificate regarding the delinquent officer's name, his father's name, the name of his village were not controverted before us. We then fail to understand as to who would be interested in taking the marksheets of the delinquent officer as also the caste certificate and who would be interested in arranging for such a fake caste certificate. The suggestion that all this was planted fails to convince us. We must hasten to add that such a suggestion was never given during the inquiry.
16.4. The things, however, do not stand here. During the hearing of the appeal, Shri Talukdar, however, produced few documents which purport to be the marksheets and the conduct certificate etc. One of the documents is the marksheet dated 16.7.1973 of Annual H.S. Examination. Another is the marksheet of First Year Science Examination held in March 1975. Shri Talukdar argues that these documents substantially differ from the documents which are alleged to be the marksheets on which the reliance was placed by the bank during the inquiry. He, therefore, says that the documents relied upon by the bank were fake documents. We are unable to accept these documents at this stage or, for that matter, rely on the same. It must be clarified that these documents were never produced either before the Inquiry Officer or before the presenting officer. They were also not referred to or produced before the learned Single Judge during the pendency of the writ petition. Under the circumstances, bringing up those documents at the stage of appeal would not be permissible at all. We, therefore, refuse to take these documents into account. We find that the learned Judge, excepting to the extent that we have shown, has not applied his mind to these documents which were being relied upon by the Inquiry Officer. We do not agree with the conclusions reached by the learned Judge in respect of the abovementioned documents covered in the first two conclusions in the inquiry report.
17. The conclusion No. 3 pertained to a letter dated 14.8.1995 written by the Assistant General Manager (Personnel) to one Mr. V. Viswanathan, Section Officer, SCT. Ministry of Finance in response to his letter dated 4.8.1995 bearing No. 18/21/95-SCT (B)/FM. In this letter, the Assistant General Manager has asserted that during the process of grant of promotion to MMGS-III from MMGS-II, the selection panel had adhered to the norms applicable to the Scheduled Tribe candidates. The letter bears the name of the delinquent officer apart from one other officer. This was in response to the query made to the bank by the Finance Ministry through Shri Viswanathan which query had obviously been made on account of the complaint made by the delinquent officer as he was not promoted. The very language of the abovementioned letter is sufficient to suggest that the delinquent officer had made a complaint that he was not given due credit for his status as a Scheduled Tribe. Now unfortunately and very significantly, the complaint made by the delinquent officer to the Finance Ministry as also the letter sent by Shri Viswanathan were not to be found in the bank's records. The bank, however, had filed the said letter dated 14.8.1995. Beyond saying that he had not made any such complaint and he had not claimed the status of Scheduled Tribe during that interview, the delinquent officer has not given any explanation. If in reality no such status was claimed and no complaint was made to the Finance Ministry, there was no reason for the Finance Ministry to write to the bank making a query on the basis of the complaint made nor would have there been any occasion on the part of the Assistant General Manager of the bank to assert that all the norms were duly observed regarding the status of the delinquent officer as a Scheduled Tribe candidate. However, he was not found fit for the promotion. Unfortunately, this documents has not at all been referred to by the learned Judge though this was one of the conclusion drawn by the Inquiry Officer and was treated as a material against the delinquent officer.
18. The last conclusion relates to the bio-data form submitted by the delinquent officer at Staff Training College during training on 23.1.1998 to 24.1.1998 wherein he had in his own handwriting declared his status as ST (Scheduled Tribe) at the appropriate place in the form. During the hearing, the original form was produced before us. A very lame explanation was given by the delinquent officer before the Inquiry Officer as well as before us that the letters "ST" at the appropriate column were not written by the delinquent officer though the rest of the contents were not only written by him, but he has also put the signature on that form. The Inquiry Officer was not satisfied with the blunt denial and has rightly not accepted the same and come to the conclusion that even in the year 1998, the delinquent officer claimed the Scheduled Tribe status for himself.
19. The learned Judge has not even referred to this document which contains the assertion on the part of the delinquent officer that he belonged to the Scheduled Tribe. At the time of argument, Shri Talukdar contended that the letters "ST" were not written by the delinquent officer. We are not in a position to accept a bare denial particularly in view of the fact that all the other details are admittedly in the same handwriting. The word "ST" appears to be in the same ink and same pen used by the delinquent officer for writing the other details in the form.
20. The abovementioned two documents were not taken into consideration as the learned Judge has restricted himself only to the period when the delinquent officer joined the bank in the year 1981. The learned Judge has chosen to rely entirely on the language of the charge. We are not satisfied that the misconduct on the part of the delinquent officer was only in presenting a forged caste certificate. When the whole chargesheet is read along with the other details and the accompanying documents, it is clear that this charge included an allegation that the delinquent officer falsely claimed the status of belonging to the Scheduled Tribe at the time of his entry. The fact that he kept on claiming the said status even later on, would only go to corroborate the allegation that he had claimed such status falsely at the time of his entry. The learned Judge has read the charge as if it was a charge in a criminal trial. This was not permissible. The charge was broad enough to suggest that the delinquent officer had falsely claimed a status of a Scheduled Tribe and the documents at conclusion Nos. 3 and 4 clearly made out a case that the delinquent officer kept on claiming that status even later on for more than 16 years after his entry into the bank's service. The approach of the learned Judge, in our opinion, was an erroneous approach and we are, therefore, unable to agree with the logic that since those documents were subsequent in point of time, they could not be considered at all. We hasten to add that, in fact, the learned Judge has not even referred to these two documents at all in the judgment. We are, therefore, of the opinion that the learned Judge has ignored the material documents which were presented by the bank in respect of the allegations. However, the matters do not end here.
21. The learned Judge has held that the four documents required by the delinquent officer at the beginning of the inquiry were not made available to the delinquent officer during the inquiry or thereafter, even during the pendency of the writ petition before this Court. The learned Judge has drawn the inference that these were the only documents which could prove the charge against the delinquent officer. We are unable to agree with the reasoning of the learned Judge. There is no doubt that if those documents had been brought on record, they would have been extremely useful in deciding as to whether the delinquent officer had claimed the Scheduled Tribe status by presenting a forged caste certificate. It must be at once seen that the first document claimed by the delinquent officer was the original form which the delinquent officer had filled up and tendered before the BSRB while the second document was the admit card issued by the BSRB with his roll number printed thereupon and the photograph affixed. The learned Judge has referred only to the above two documents in internal page No. 5 of his judgment. The other two documents have not been even referred to. We will, therefore, consider as to whether the non-supply of these two documents was rightly held to be fatal by the learned Judge. The learned Judge rightly held that these two documents could have been in the possession of the bank since they were sent by the BSRB to the bank. What is strange is that the delinquent officer should have asked for the admit card. It is commonly known that in these examinations, unless the delinquent officer appears with an admit card himself, he would not have been allowed to write his examination. Therefore, the admit card which the delinquent officer was clamouring for, was a document, the possession of which was bound to be with the delinquent officer. It is not his case nor has he anywhere pleaded that every examinee appearing in the examination was required to deposit his admit card with the BSRB. The admit card on the basis of which he appeared for the examination, was bound to be with the delinquent officer himself. In our opinion, the non-supply of admit card would be of no consequence whatsoever. The learned Counsel could not spell out any prejudice on account of the non-supply of the admit card nor has such prejudice been spelt out during the inquiry.
22. Insofar as the original form is concerned, there can be no doubt that the said form would have been extremely relevant. But again that by itself, could not be a 'be all and end all' of the matter, particularly because the BSRB had in its letter dated 17.11.1981 clearly suggested that the delinquent officer was selected from the Scheduled Tribe category. The copy of the letter dated 17.11.1981 was even sent to the delinquent officer and the delinquent officer maintained a discreet silence and did not raise any objection to his being shown as a Scheduled Tribe candidate for the purposes of his selection. This by itself would go to prove that the delinquent officer had claimed the status of Scheduled Tribe and during the inquiry as also now, he claims that he does not and did not belong to the Scheduled Tribe. Therefore, it is obvious that the delinquent officer was obviously claiming the status of Scheduled Tribe. The delinquent officer has not stated even one word as to how his name appears in the caste certificate with all the details regarding his family, his village etc. He has also not explained as to how his own marksheets and the said caste certificate have been attested by one and the same man who was teaching at Bhadrak College where the delinquent officer admittedly was a student. Under the circumstances, it must be said that even the non-supply of the original form filled by the delinquent officer was of no consequence as even otherwise, there was voluminous evidence to suggest that the delinquent officer falsely claimed the status of a Scheduled Tribe at the time of his entry into the bank and that there is a caste certificate issued in his name which must have obviously been sent by the BSRB to the bank along with the other papers like marksheets etc. and that none else but the delinquent officer must have produced those documents before the BSRB at the time of appearing at the examination. The Inquiry Officer was right in his inferences on these issues and they were the only ones which could be drawn under the circumstances. We are, therefore, of the clear opinion that the learned Judge was not right in allowing the writ petition and setting aside the removal order as also the inquiry proceedings on the grounds that he did.
23. The appeal is allowed setting aside the order of the learned Single Judge and the writ petition is directed to be dismissed, but without any order as to costs.
24. Xerox certified copies of this judgment be made available to the parties as expeditiously as possible upon compliance of the usual undertakings.
N. Patherya, J.
25. I agree.