Calcutta High Court (Appellete Side)
Gour Gopal Mondal vs The United Bank Of India & Others on 2 August, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 19649 (W) of 2016
Gour Gopal Mondal
Vs.
The United Bank of India & Others.
For the petitioner : Mr. Debabrata Saha Roy, Advocate
Mr. Indranath Maitra, Advocate
Mr. Pingal Bhattacharya, Advocate
For the respondents : Mr. R. N. Majumder, Advocate
Mr. Supratim Bhattacharya, Advocate
Heard on : 13.01.2017, 03.04.2017
Judgement on : 02.08.2017
Sambuddha Chakrabarti, J.:
The petitioner is an employee of the United Bank of India. From January 3, 2010 to August 12, 2013, he was posted as the head of the Palsanda Branch of the concerned bank. He says that after the opening of the said branch he was instructed by the Regional Office, Bahrampur to meet the Regional Manager for the purpose of signing some loan documents as a result of which he had to sign a large number of loan documents without any recommendation.
By an order dated March 11, 2014, he was placed under suspension for commission of certain acts of gross misconduct. This order of suspension was issued by the Deputy General Manager (HRM) and competent authority who is also the appellate authority of the petitioner.
Subsequently a charge-sheet was issued against the petitioner by the Assistant General Manager (HRM) and his disciplinary authority leveling as many as six charges against him. The petitioner gave his reply to the same.
It has been the case of the petitioner that immediately after the enquiry had commenced the presenting officer submitted lists of documents and witnesses to the enquiry officer. During the course of enquiry, he submitted as many as 17 documents to the enquiry officer. The petitioner was not given reasonable time to go through those documents and without any authentication the enquiry officer marked all these documents as management exhibits and asked the presenting officer to proceed with the case. He alleges further that the enquiry officer had hastily concluded the enquiry, the documents were marked exhibits without any proof thereof and the management witness (mw, for short) also did not prove the contents of the same.
Subsequently the petitioner was provided with a written brief of the presenting officer to which he had submitted his defence brief, both to the Chief Manager as well as the enquiry officer.
The petitioner was served with a copy of the enquiry report with the instruction to submit written submission on the findings of the enquiry officer within three days from the date of receipt. He has variously criticized the report of the enquiry officer. He submitted his representation to the findings of the enquiry officer by a letter, dated October 9, 2014, specifically mentioning that a departmental proceeding was also initiated against another officer of the said branch, Sri Snehasish Chowdhury on the self-same charges as those levelled against the petitioner. The enquiry officer of the petitioner was also the enquiry officer in respect of the departmental proceeding against Sri Chowdhury. The presenting officer in both the departmental proceedings was also the same. At the time of conclusion of the proceeding against Sri Chowdhury, the presenting officer had given out that no amount was credited in the account of the petitioner from any of the borrower's account. But in spite of it, the same enquiry officer concluded that the petitioner had misappropriated a sum of Rs. 9,04,000/-.
The Assistant General Manager and the disciplinary authority by an order dated October 31, 2014 dismissed the petitioner from service with immediate effect.
Against the said order of dismissal, the petitioner preferred an appeal to the Deputy General Manager (HRM) and the Appellate Authority on December 1, 2014.
The Assistant General Manager by a covering letter, dated July 3, 2015, served a copy of the order dated June 26, 2015 passed by the Deputy General Manager and the appellate authority to the petitioner. The appellate authority had confirmed the order passed by the disciplinary authority.
One of the points that has left the petitioner very aggrieved is that the Deputy General Manager who had placed the petitioner under suspension should not have passed an order as an appellate authority as he had acted as a contributing and constituent part of the proceeding. Subsequently, the petitioner preferred a review petition before the reviewing authority which was also dismissed.
The petitioner has assailed the charge-sheet, the order of dismissal from service as well as the orders passed by both the disciplinary authority as well as appellate authority on various grounds. Apart from the point taken about the propriety of the appellate authority to hear the appeal as, by issuing the order of suspension, he had exhibited sufficient stake in the matter, the petitioner has alleged that the points raised in the appeal were not considered vitiating the earlier appellate order. All the authorities of the bank had acted in a predetermined and biased manner and against the principles of natural justice. Lack of reasonable opportunity to defend the case is another serious point of his grievance. The petitioner has also assailed the report of the enquiry officer as a perverse one and based on no evidence. On the top of everything, the petitioner alleges, the punishment of dismissal from service is disproportionately harsh.
The respondent bank has contested the petition by filing an affidavit-in-opposition, affirmed by the Assistant General Manager (D & IR) of the Bank. The principal contention of the contesting respondents is that the petition raises issues relating to disputed questions of fact which cannot be decided by this Court in writ jurisdiction. It has also been contended that the petitioner was placed under suspension in contemplation of a disciplinary action on the allegations of acts of misconduct committed by him during the tenure of his service as the head of the Palsanda branch. The answering respondents have denied the allegations made in the writ petition and has stated that at the departmental enquiry the petitioner was afforded with reasonable opportunities to defend him including being represented by a defence representative. He was allowed to cross-examine the witnesses. It has also been denied that the Enquiry Officer had given his report without perusing the documents submitted at the enquiry and came to a conclusion about the charges levelled against the petitioner. The petitioner never raised any objection with regard to be marking of documents or the conduct of the enquiry at the relevant time. The enquiry officer has given his findings supported by evidence and reasons.
The respondents have further stated that the appellate authority and the reviewing authority had justly affirmed the order of dismissal passed by the disciplinary authority by reasoned orders.
To the said affidavit-in-opposition the petitioner has filed an affidavit-in-reply reiterating his allegations in the writ petition.
It has been urged with emphasis by the petitioner that he was not given sufficient opportunity to deal with the documents produced by the presenting officer at the enquiry. Mr. Saha Roy particularly made a grievance that the enquiry started and ended on the same very date. A large number of documents were produced at the enquiry and the petitioner was not given any opportunity to go through the same. The other point of grievance of the petitioner is that in respect of the some of the documents filed by the defence witness independent proof was felt necessary by the enquiry officer, but that was not followed in respect of the management documents. Thus, a very vital aspect of the principle of natural justice was violated.
The submission of Mr. Majumder was again to take the usual defence of a respondent facing a challenge to the enquiry at the departmental proceeding i.e., the sophisticated rules of the evidence have no application to a disciplinary enquiry. Moreover, when they were marked as exhibits there was no objection raised by the petitioner that these documents had to be individually proved and in fact, they were individually proved.
It is an admitted position that the enquiry proceeding started and ended on the same date i.e., on July 25, 2014. The minute of the enquiry proceeding reveals that on being asked by the enquiry officer, the presenting officer submitted a list of management documents (exhibits) and the management witness. About 17 management documents were produced and they were marked exhibits instantaneously. The enquiry officer has described the documents produced by the presenting officer as "documents/management exhibits and evidences". The acceptance of the documents produced as exhibits clearly goes to show that they were not formally proved and they were exhibited merely on their production. It is immaterial whether these documents were subsequently proved. That apart, the documents were also not formally proved. Mentioning the content of a document is no formal proof of it.
It is true that the rules of evidence in their entirety and strictness cannot be applied to a departmental proceeding. But even if the Evidence Act does not wholly apply, the basic principles underlying the Act do certainly apply to any proceeding and a compromise on that is likely to vitiate a proceeding as a whole. In Hindustan Paper Corporation Vs. Manindra Kumar Ghosh, reported in 1991 (3), SLR 776, this Court had held that even if the Evidence Act is not applicable to a disciplinary proceeding, the misconduct of the delinquent must be established by some cogent evidence on which objectively a finding can be given about the commission of the offence or misconduct. Conjecture and surmises cannot substitute the requirement of proof.
After all, the initial burden of proving a case lies on the management and the burden never shifts, though the onus may. The objection taken by Mr. Majumdar that the petitioner did not raise any issue when the documents were exhibited, on the basis of his own submission, does not hold good in the facts of the present case. If it is the case of the respondent bank that sophisticated rules of Evidence Act do not apply to a departmental proceeding, the parity of logic must lead the Court to hold that the effect of not raising any issue at the relevant point of time must also not to be faulted as the sophisticated rules of evidence do not apply. The submission made by Mr. Majumdar about the failure of the petitioner to object to the admission of the documents as exhibits is certainly based on a very sophisticated rule of evidence and does not dislodge the onus of the management to prove a case against a delinquent on the basis of properly exhibited documents after they had been duly proved. The principle of law that strict rules of evidence do not apply to a departmental proceeding does not mean that even without any rudimentary proof of the contents of the documents or the identification of the makers of them they may be exhibited merely on their production. The basic principles of evidence require that documents should be proved, if not with the rigid standard of the Evidence Act as in a regular trial in a Court of law, but at least the semblance of it must have to be adhered to.
However, the submission of Mr. Saha Roy that the enquiry officer did not follow the same yardstick in respect of admission of documents between the management and the petitioner cannot be accepted, at least with regard to the allegation made in respect of the defence documents being DE-2. The enquiry officer had rejected the document as it was not authenticated by the concerned branch of the bank. If one closely looks at the reasons for rejection it appears that this was due to the intrinsic lacuna in the document itself touching on the probative value of it. If a document is not complete in itself, i.e., if the document does not disclose the identity of the issuing authority or does not contain authentication by the appropriate authority it can be definitely rejected by the enquiry officer. But he admitted the document into evidence even before the formal proof as it was already marked as DE-2. Mr. Saha Roy's allegation in this respect is not a very convincing one. However, the fact that the enquiry officer had also admitted the defence documents without formal proof does not mean that the benefit of mistake by him had been evenly distributed. The documents produced by the management were far more important as the case against the petitioner had been sought to be established on the basis of those documents. Moreover, the defence did not produce any witness to prove his documents.
A far more important point that crops up for consideration is whether the petitioner had been prejudiced by the conclusion of the enquiry proceeding in one day. Mr. Saha Roy submits that he was. It is an admitted position that 17 documents running into several pages were produced at the enquiry and immediately thereafter the examination-in-chief of the mw started. After putting 17 questions to the witness, the defence representative expressed that he would like to cross-examine him.
The petitioner, if he had been inconvenienced, should have prayed for accommodation to the enquiry officer. It is quite likely, and I fully agree with the petitioner, that 17 documents could not be gone through in one day particularly when the examination-in- chief is going on. This could be an important justification for praying for fixing the date of enquiry on any other date enabling the petitioner to go through the documents. This he did not do. On the contrary, his representative wanted to cross-examine the witness. It is also not the case of the petitioner that he had prayed for an accommodation and it was refused. Even in his appeal to the appellate authority he took all the points regarding the inconvenience, violation of natural justice, initiation and conclusion of the disciplinary proceeding in hot haste, not giving him opportunity to go through the documents produced by the presenting officer, so on and so forth. But he failed to mention that he had prayed for accommodation before starting the cross- examination.
Therefore, it may be safely taken that he did not pray for any such adjournment. That being so the petitioner cannot at this stage make out a case for violation of the principles of natural justice on the ground that inadequate opportunity or practically no opportunity was given to him for his getting ready to cross-examine the management witness.
By not praying for any accommodation and by specifically saying that he would like to cross-examine the mw the petitioner had induced the enquiry officer to continue with the enquiry proceeding. By this act the petitioner had definitely created an impression that he was ready to cross-examine the witness then and there and now he is estopped for raising the issue of inadequate opportunity by his conduct or representation. This is certainly covered by the principle of estoppel by conduct, as it was the petitioner's act upon the faith of which that the respondent had been led to act and it will be unfair to permit the petitioner now to agitate this issue. It has to be borne in mind that the petitioner never challenged the recording of the proceeding of the enquiry before any forum.
It is very well settled that estoppel by conduct may arise out of a varied situation, both positive and negative. Conduct by omission also amounts to a representation and has been placed on the same footing as an express representation. Thus when the petitioner has conducted himself in a manner by expressing his desire to cross-examine the mw that the enquiry officer and the presenting officer must have understood that his positive representation should be acted upon. Estoppel arises against a party who had made a particular representation. Subsequently, he is not allowed to allege that an opportunity of going through the documents had not been given to him. If he had wanted time to go through the documents so as to enable him to make preparation for cross-examination, it was his duty to ask for that from the enquiry officer. Silence also amounts to a conduct when there is a clear duty to speak. In the present case, however, it is something more than mere silence. It was a positive statement made by the representative of the petitioner that he wanted to cross-examine the management witness.
What the petitioner now cannot be allowed to allege is on the basis of the doctrine of promissory estoppel. The ratio of what was decided in Motilal Padampat Sugar Mills Ltd. Vs. State of U.P., reported in AIR 1979 SC 621, in brief is that where a party (government in that particular case) makes a promise knowing or intending that it would be acted on by the promisee and in fact, the promisee acting in reliance on it takes a certain step or alters his position that party would be bound by the promise and it would be enforceable against him.
This is an equitable doctrine and equity demands that the petitioner should not be allowed to alter his position to the disadvantage of the respondent bank when a certain state of things had happened on the strength of what his representative had done at the enquiry. The Supreme Court observed in D. Boopalan Vs. Madras Metropolitan WSS Board, reported in (2007) 12 SCC 569 that the doctrine of promissory estoppel is not really based on the principle of estoppel but it is a doctrine evolved by equity in order to prevent injustice:
Equity also demands that in the light of what the petitioner had represented before the enquiry officer he should be precluded from resiling from that and he should be held found by his representation. The Supreme Court in the case of State of H.P. Vs. Ganesh Wood Products, reported in AIR 1996 SC 149, had observed that it is a matter of holding the scales even between the parties and to do justice between them. Justice in the present case demands that the petitioner who did not pray for any accommodation should not be allowed to allege violation of principles of natural justice to the disadvantage of the respondents.
However, one thing is not understood, i.e., the procedure adopted by the enquiry officer. He asked the presenting officer whether he wanted to again cross-examine the mw in respect of the questions asked by the defence representative. The question of cross-examining one's own witness does not arise, unless he is declared hostile.
But what is really surprising is that the presenting officer put questions to the petitioner. Since the petitioner was not his witness there is no question of his examination-in-chief by the presenting officer. It must be reckoned to be a cross-examination. How can a presenting officer cross-examine the charge-sheeted employee when he has not offered himself as a witness? The question of cross-examination arises only when a witness has already deposed in examination-in-chief. Moreover, one could understand if the enquiry officer to elicit the truth had asked certain questions to the petitioner. But that role cannot be arrogated to himself by the presenting officer. This is not what was expected of an Enquiry Officer conducting an enquiry in such a serious matter.
It has already been found that the enquiry started and ended on the same very day. The procedure adopted at the enquiry was rather unusual. The presenting officer submitted a list of management documents and management witnesses (mw, for short) and a set of 17 documents was provided to the petitioner.
Thereafter, the presenting officer one by one had handed over the documents to the mw and asked him to identify the documents and tell in brief the salient features of each document and this alone was what the mw did.
From this procedure adopted by the enquiry officer it is rather difficult to follow how the case against the petitioner was established. The statements of the mw were restricted to identifying and describing in brief the content of a document. That is not the whole purpose of producing a witness by a party to any proceeding. The witness must have to say something about the case of the party on whose behalf he was deposing. In the present case, the role of the witness was reduced to merely apprising the persons present there about contents of certain documents produced by the presenting officer.
However, while preparing the enquiry report, the statements alleged to have been made by the witness was recorded which does not find place in the enquiry proceeding or in the answers given by the mw. For example, the enquiry officer has recorded in respect of charge no. 1 that during the enquiry, the mw examined 35 KCC loan documents as per Table 1 which were marked as ME 2 and through his deposition in response to question no. 2 certain facts, as mentioned in the enquiry report, were revealed. The enquiry officer has mentioned:
a) All the 35 no. of KCC loans were processed and sanctioned by CSO single handedly without any recommendation by any other officer present at the branch.
b) on 8 (eight) occasions (Sl. no. 1, 4, 6, 9, 11, 12, 19 &21 of Table-1) unsigned sanction letters were issued.
c) The loan documents obtained for disbursement of the said KCC loans were not properly executed by the respective borrowers, documents like pronote, letter of continuity, etc. are not properly filled-in and as a whole the documentation part of the said KCC loans was completely neglected rendering the loan documents defective thereby CSO has violated the extant guidelines of the Bank.
From this, the presenting officer submitted that the charges levelled against the petitioner were established. If we look at the answer given by the mw, it appears that in response to question no. 2 the mw merely said "release order of Sri Gour Gopal Mondal [sic] dated 02.01.2010 from Berhampore Br. to Palsanda Br. as Officer and release order dated 12.08.2013 of Gour Gopal Mondal from Palsanda to Nimtala Chunakhali Br. as Officer".
It is difficult, if not impossible, to understand wherefrom the enquiry officer recorded that the facts as quoted above were revealed from the statement of the mw in response to question no.
2. The portion quoted above has come under the heading "PO's comments".
This is not restricted to charge no. 1 alone. For example, in dealing with the charge no. 2 also, the enquiry officer followed the same procedure viz., recording the comments of the presenting officer as the answer given to question no. 4 and recording something much more than what the witness had said. The same can be said of in respect of other charges as well.
It appears that enquiry officer has acted on the submission made by the presenting officer in his written brief without ascertaining how the conclusion could be drawn from the scantly testimony of the mw. The presenting officer had observed that from the deposition of the mw in response to several questions something is revealed which he had recorded in his written brief. But the witness's statement was restricted to merely identifying the documents. For example, in response to question no. 6, the mw had merely said the contents of Management Exhibit no. 5 and nothing more than that. But from that presenting officer had recorded in his written brief that through deposition in response of question no. 6, it is revealed that for effecting disbursement of 13 KCC loans as per Table-4 for an aggregate amount of Rs. 2.75 lakhs, the CSO unauthorizedly debited the said loan accounts of different customers on different dates during the period from March 28, 2013 to August 5, 2013 under his user ID without any mandate from the borrowers/account holders and without any valid consideration and supporting vouchers and credited the proceeds to third party Savings Bank Account of certain persons.
The enquiry officer should have out right rejected these comments of the presenting officer as not emerging from the testimony of the mw in response to question no. 7. The presenting officer cannot enlarge or expand the scope of the evidence of a witness by drawing inference from what he could have said but did not actually say. The lacuna in the evidence was sought to be covered up by the presenting officer in his written brief which was accepted by the enquiry officer in its entirety and what is still more surprising is that the enquiry officer after recording the comments of the Presenting Officer and the petitioner had without almost any further discussion concluded that the charge against the petitioner was established. The very short discussion preceding the conclusion that the charges have been proved against the petitioner clearly brings out any lack of causal connection between the two. The presenting officer with reference to the answer given by the mw to question no. 4 said something about charge no. 2. Instead of rejecting the same as not emerging from the deposition of the mw the enquiry officer also accepted that from the deposition of the witness certain things were revealed about which there was no evidence in the answer given to question no. 4.
If a witness merely describes the contents of a document, allegations or the things contained therein cannot be used by the management against a delinquent employee unless the witness also deposes about the fact which is said to have emerged from those documents. At the end of the day it is the prosecution which has to prove that the charges have been established by the witnesses and that cannot be done merely by describing the contents of those documents or by giving description of them. If a witness does not say anything more than the formal contents of a document and is silent about any fact or an incident or an act of any person contained in the document, there is no oral evidence about the commission or omission on the part of the delinquent, except the content of a document. Narrating the content of a document and proving its contents are two different exercises. The prosecution cannot subsequently make out an inferential case out of those documents. Unfortunately, the presenting officer had done the same thing and the enquiry officer unhesitatingly accepted the same.
In the present case the manner of conducting the enquiry was not above board. He relied on various purported statements of the mw which were never said by him at the enquiry. This is not expected of a person discharging quasi-judicial functions. The observations and comments by the presenting officer have been in respect of all the charges described by the enquiry officer as the findings of the presenting officer. It has been followed by the findings of the enquiry officer.
It is not clear why the comments or the observations or even the submission by the presenting officer should be treating as his findings. The use of the word 'finding' is very suggestive. The enquiry officer has used the word both in respect of the presenting officer as also his own conclusion. The representative of a party to a proceeding can certainly make some submissions or arguments based on the evidence. The moment the enquiry officer describes it as the finding of the presenting officer he has placed these submissions at a higher pedestal than that of mere submissions. The enquiry officer thought that the submission of the presenting officer also qualifies for the use of the word 'finding' which was to be left to the jurisdiction of the enquiry officer alone.
It is true that nothing much turns on the use of a certain word or language used to describe the observations made by a party to a proceeding. Terminology cannot be given more than its due share of importance. But this is a case which must be reckoned to be somewhat different from the other cases as the repeated use of the word 'finding' is something more than a simple mistake. This is the case of a Freudian slip which came out unconsciously even if the enquiry officer had not intentionally and advertently used the word. It has its importance as bringing out the mental make-up of the enquiry officer.
Mr. Majumdar had to take resort to the obvious and a little stereotype defence which is usually taken by the prosecution under such circumstances. He submitted that writ court cannot go into the questions of fact. This is far to well-known a principle of law without requiring any elaboration that a writ court should not enter into the questions of fact or delve into the factual issues arising out of a departmental enquiry.
While the stand taken by the bank is true, it is equally true that a writ court certainly has the jurisdiction in appropriate cases to decide whether an order passed by the management, including an enquiry report, is perverse or not. The writ court can hold a finding to be perverse principally under three circumstances viz., i) if it is based on no evidence, ii) when relevant and material evidence has not been considered, and iii) the conclusion arrived at by an enquiry officer is such that no man of ordinary prudence would consider it to be a valid and reasonable one. it has to be emphasized that in order to be satisfied that the enquiry report does not attract any of these mischiefs it is permissible for a court, even for a writ court to look into the evidence and to examine whether the conclusion is perverse or not.
Mr. Majumdar had insisted that in a writ petition, particularly arising out of the disciplinary proceeding, there are certain built-in limitations for the court to exercise its jurisdiction. A writ court cannot enter into the factual aspect of a case neither can it delve into the facts of it. According to him, Evidence Act or the rules of evidence are not strictly applied to a domestic enquiry. He relies on the case of J. D. Jain Vs. The Management of State Bank of India and Another, reported in AIR 1982 SC 673 where the Supreme Court had criticized the industrial tribunal for committing an error in holding that the finding of the domestic enquiry was based on hearsay evidence. And in this context, it was observed that strict rules of evidence have no application in a domestic enquiry.
It is true that generally a writ court should not be permitted to enter into the factual aspects of a case nor can it scan or examine the evidence adduced in a manner which takes place in a regular trial, either civil or criminal, by a court of law.
But it is a settled position of law that the bar may not be in an absolute one in appropriate cases. While recognizing the restriction put on the High Court exercising power under Article 226 of the Constitution of India, the Supreme Court in the case of State of Madras Vs. G. Sundaram, reported in AIR 1965 SC 1103 held that the High Court cannot sit in appeal over the findings recorded at a properly conducted departmental enquiry except when it is shown that the impugned findings were not supported by any evidence. Even before that Dharangadhra Chemicals Works Ltd. Vs. Sourashtra, reported in AIR 1957 SC 264 gave liberty to the High Court to enter into a question of fact if the findings of the Tribunal is shown to be fully unsupported by evidence. The same has been the view of the Supreme Court in the case of Parry and Co. Ltd. Vs. P. C. Pal Judge 2nd Industrial Tribunal, Kolkata, reported in AIR 1970 SC 1334 where after reiterating the restrictions put on the writ court in certain matters, the Supreme Court held that such non-interference with a finding of fact generally holds good unless it could be shown that the finding of fact to be wholly unwarranted by evidence or based on extraneous consideration or where conclusion on the face of it is so arbitrary and capricious that no reasonable person can ever have arrived at the conclusion. Under such circumstances interference under Article 226 is justified.
When such a question is raised in a writ petition, it is not only permissible but also essential that the court shall examine the factual issue. In more recent times in the case of State of U.P. and Another Vs. Johri Mal, reported in (2004) 4 SCC 714, a three-judge Bench had taken this point into consideration and observed that it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts. But while examining and scrutinizing the decision making process it becomes inevitable to appreciate the facts in a given case as otherwise the decision cannot be tested under the grounds of illegality, rationality or procedural impropriety. How far the court of judicial review can re-appreciate the finding of facts depends on the ground of judicial review. Their Lordships have given an example: if a decision is challenged as irrational it would be well-nigh impossible to record whether of decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. Therefore, to the extent of scrutinizing the decision making process, it is always open to the court to review the evaluation of facts by the decision makers.
Almost contemporaneous with the earlier judgment was the case in Management of Madurantakam Co-operative Sugar Mills Ltd. Vs. S. Viswanathan, reported in 2005 (2) SCALE 274. There the Supreme Court had held that if a finding of fact is perverse or if the same is based on no legal evidence, the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact.
In Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Others, reported in 2011 (5) SCALE 423, the Supreme Court reiterated the settled principle of law that a High Court in writ jurisdiction will not enquire into complicated question of fact nor does it sit in appeal over the decision of an authority whose orders are challenged in the proceeding. However, one of the circumstances under which the High Court can interfere with a decision is where there is no legal evidence before the authority concerned or where the decision of the authority concerned is held to be perverse.
From the discussion made above it is clear that the conclusion drawn by the enquiry officer is not supported by the evidence led at the enquiry. Merely by identifying a document and saying what the document deals with a witness does not prove the charges against a delinquent. The incident or the allegation bared on the document are neither proved nor the allegations contained therein. The presenting officer cannot draw presumptive conclusion on such evidence of a witness. I have no hesitation in holding that the conclusion that the charges have been established against the petitioner is a conclusion based on no evidence as such is a perverse finding. In order to determine whether a finding is perverse a writ court is not absolutely denuded of its power to examine the findings of the enquiry officer.
Mr. Majumdar relied on the case in Disciplinary authority- cum-Regional Manager and Others Vs. Nikunja Bihari Pattanaik, reported in (1996) 9 SCC 69, for a proposition that acting beyond one's authority is by itself a misconduct within the meaning of a certain regulation and proof of any actual loss is not necessary. He next relied on the case of Union Bank of India Vs. Vishwa Mohan, reported in (1998) 4 SCC 310 that in the banking business absolute devotion, diligence, integrity and honesty are required to be preserved by every bank employee and in particular the bank officer. If this is not observed the confidence of the public/depositors would be impaired. This was relied on by Mr. Majumdar in support of his contention that what the petitioner in the present case had done must be considered to be sufficient proof of misconduct and the enquiry officer and the appellate authority having concurrently found against the petitioner, he cannot subsequently ask for a reversal of the orders in a writ petition.
Mr. Majumdar also relied on the case of Canara Bank and Others Vs. Debasis Das and Others, reported in (2003) 4 SCC 557, for a proposition that the expression natural justice and legal justice do not represent a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve the solemn purpose natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical pre-verification. It supplies the omission of a formulated law. I have considered the judgment and find that this issue is not really necessary for disposal of the case.
The respondents have also relied on the case of State Bank of India and Others Vs. T. J. Paul, reported in (1999) 4 SCC 759, for a proposition touching on the merits of the case. The particular portion of the judgment, Mr. Majumdar laid great stress was on the definition of 'gross misconduct' in the service code of the concerned bank. Their Lordships held, with reference to the facts of that case, that the Enquiry Officer's finding of gross misconduct on the ground of not obtaining adequate security was correct and could not be said to be based on no evidence. It has also been observed there that even assuming that there is no gross negligence simple negligence will come under major misconduct if accompanied by likelihood of serious loss which is clear from the relevant provision of the concerned service code.
Since in the present case even without entering into the merits we have found that on the basis of the evidence adduced the case had not been proved at all it is not necessary to enter into the question of misconduct.
In the present case the evidence adduced is grossly insufficient to prove the case against the petitioner in respect of the charges brought against him. The only witness who was produced by the management said nothing to prove the charges against the concerned employee. There has not been any deposition on the charges, no reference to any incident, but merely describing the identity of certain documents. There must be sufficient evidence before an enquiry officer which proves the case of the management. In the case of Rupsingh Negi Vs. Punjab National Bank and Others, reported in (2009) 2 SCC 570, the Supreme Court had held that a departmental proceeding is a quasi judicial proceeding and the enquiry officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. With reference to that particular case the Supreme Court had held that no witness was examined to prove the documents placed. The management witnesses merely tendered the documents and did not prove the contents thereof. Some evidence should have been brought on record to show that the person concerned had committed the act. There was no direct or indirect evidence. The Supreme Court criticized the enquiry officer in Rupsingh Negi (Supra): "the tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left"
This is also a case where there is no evidence to establish the charges framed against the petitioner. Thus, it is a case of perverse finding. The enquiry officer could not appreciate the well drawn distinction between mere identification of documents and proof of their contents. Description of what a document contains is no proof of its content which may establish a charge against the petitioner.
Thus, it is found that the case against the petitioner has not been proved at the enquiry and what the respondents authorities had accepted to be proof of charges are mere apologies of it.
I set aside and quash the enquiry report, the order of the disciplinary authority and the appellate authority. I direct the respondents authorities to act in terms of this judgment and order within a period of four weeks from the date of communication of the order.
The respondents, however, will be entitled to initiate a fresh proceeding against the petitioner on the basis of the same charges levelled against him and proceed afresh strictly in accordance with the relevant rules and law.
The writ petition is allowed.
There shall be no order as to the costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee