Gauhati High Court
Sri Jatin Das vs The United Bank Of India And 4 Ors on 2 March, 2020
Author: Ajai Lamba
Bench: Ajai Lamba, Soumitra Saikia
Page No.# 1/11
GAHC010114752018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 219/2019
1:SRI JATIN DAS
S/O- LATE BHARAT DAS, R/O- BORDHADUM, P.O. DANGARI, P.S.
DOOMDOOMA, DIST.- TINSUKIA, ASSAM.
VERSUS
1:THE UNITED BANK OF INDIA AND 4 ORS
REP. BY ITS CHAIRMAN, 11, HEMANTA BASU SARANI, HEAD OFFICE-
KOLKATA- 700001.
2:THE ASSISTANT GENERAL MANAGER
PERSONAL AND SERVICES AND DISCIPLINARY AUTHORITY
UNITED BANK OF INDIA
11
HEMANTA BASU SARANI
HEAD OFFICE- KOLKATA- 700001.
3:THE DEPUTY GENERAL MANAGER
(CBG) AND APPELLATE AUTHORITY
UNITED BANK OF INDIA
11
HEMANTA BASU SARANI
HEAD OFFICE- KOLKATA- 700001.
4:THE GENERAL MANAGER
RECOVERY AND REVIEWING AUTHORITY
UNITED BANK OF INDIA
11
HEMANTA BASU SARANI
HEAD OFFICE- KOLKATA- 700001.
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5:THE BRANCH MANAGER
UNITED BANK OF INDIA
DOOMDOOMA BRANCH
P.O. AND P.S. DOOMDOOMA
DIST.- TINSUKIA ASSAM
Counsel for appellant : Mr. TJ Mahanta, Senior Advocate
Ms. B Bhuyan
Counsel for respondents : Mr. C Sharma
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON'BLE MR. JUSTICE SOUMITRA SAIKIA 02.03.2020 (Ajai Lamba, C.J.) This writ appeal is carried against judgment dated 19.4.2018 rendered in WP(C) 6528/2010 titled Jatin Das vs. The United Bank of India and 4 others.
By virtue of the impugned judgment, the writ petition was dismissed.
2. Primarily the legal issue raised by the appellant/writ petitioner is that in the disciplinary proceedings which is subject matter of this case, the writ appellant has been found to be guilty and has been punished, whereas in the criminal case he has been acquitted. It has been pleaded that essentially the appellant was acquitted in the criminal case on the same charges, therefore, the appellant employee is entitled to exoneration in the disciplinary proceedings.
3. It appears that during the period of September, 2004 to May, 2007, the writ appellant/writ petitioner served as Deputy Manager in Doomdooma Branch of the Bank. There were allegations of misappropriation wherefor Doomdooma PS Case No.153/2008 was registered for committing offence under Section 409 IPC. The writ appellant was accused of preparing fraudulent debit vouchers and he gave credit to his own savings bank and over draft accounts. Additionally, allegedly the writ appellant fraudulently prepared demand drafts.
4. Be that as it may, in the criminal proceedings, the writ appellant was acquitted.
On the same facts and circumstances, the writ appellant has been held guilty in the Page No.# 3/11 departmental proceedings.
5. We have gone through contents of the impugned judgment. The learned Single Judge has ruled in the following terms (relevant portion) on the relevant issues:
"4. The departmental enquiry was held on the above charges and the delinquent participated in the enquiry proceeding. The Bank produced the Local Cheque Collection Register, the Credit Vouchers, the Debit Vouchers and other relevant documents to prove the charges. The delinquent was furnished the copies of the concerned documents and was afforded the opportunity to compare them with the original records available at the enquiry venue. The enquiry officer in conclusion held on 9.1.2009 (Annexure-
5) that, all the charges were proved, baring the Charge No.3(c).
5. The copy of the enquiry report was furnished and the delinquent in his response stated that, he suffered disadvantage in the departmental enquiry since the criminal trial was proceeding around the same time. The inadequacy of staff in the Doomdooma Branch of the Bank was projected as one of the cause for the discrepancies in the accounts.
6. The disciplinary authority in his turn noted that the charges have been established on the basis of cogent documentary evidence. As regards the non-establishment of the Charge No.3(c), the discrepancies in the Bank's records for the cheque cleared on 22.1.2007 vis-à-vis the charge was found.
Moreover for this particular charge, the Local Cheque Collection Register was not produced, in support of the allegation. With such minute examination of the material basis for the findings recorded by the enquiry officer, the concurrence was recorded with the enquiry officer's conclusion. Then the gravity of misconduct was assessed and the major penalty of dismissal in terms of Regulation 4(1) of the UBI Regulations was imposed on the delinquent, by the order dated 27.2.2009 (Annexure-7). The resultant Appeal was dismissed by the Appellate Authority on 14.5.2009 (Annexure-9) and the Review Petition filed on 29.6.2009 by the Dy. Manager was disposed of on 8.9.2009 (page-102) by the Reviewing Authority, without disturbing the Page No.# 4/11 disciplinary action taken against the delinquent.
7.1. xxxxxxx 7.2. xxxxxxx 7.3. xxxxxxx 8.1. xxxxxxx 8.2. xxxxxxx 8.3. xxxxxxx
9. When the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in both proceedings are one and the same, in the event of an honourable acquittal, the delinquent can claim relief in the departmental action. But the key question here is whether the petitioner was given the benefit of doubt or it was a case of honorable acquittal, by the Criminal Court.
10. The judgment of the learned Addl. CJM, Tinsukia, in the G.R. Case No.540/2008, reflects that the prosecution failed to produce the Vouchers prepared by the accused and withholding of those Vouchers from the Trial Court by the prosecution, persuaded the learned Judge to draw up presumption in favour of the accused, under Section 114 of the Evidence Act. Similarly, the failure of the prosecution to arrange for certification under Section 65(D)(4) of the Evidence Act, for the printouts of the Bank's electronic system, to prove the Material Exhibit No.1 & 2, was the major reason for the Trial Court to ignore those material exhibits. Thus the key factor for the acquittal verdict was the failure of the prosecution to prove the case against the accused in accordance with legal requirement.
11. The responsibility for conducting the criminal trial is in the hand of the prosecuting agency and in cases of this kind, the Bank, after registering the FIR, has no role to play beyond rendering assistance to the prosecution in the Criminal Trial. The prosecution as can be seen from the verdict, failed to produce the fabricated Vouchers and they also did not arrange for certification of the Material Exhibit No.1 & 2, as is required under Section 65(D)(4) of the Evidence Act. In fact, non-production of the fabricated Credit Page No.# 5/11 and Debit Vouchers prepared by the accused, led to drawl of negative presumption by the Trial Court, under Section 114 of the Evidence Act. It is because of such deficient prosecution, the accused was given acquittal and this cannot be categorized to be a case of honourable acquittal.
12. The Supreme Court, in the R.P. Kapur vs. Union of India reported in AIR 1964 SC 787, as approved in Inspector General of Police vs. S. Samuthiram, reported in (2013) 1 SCC 598, declared that acquittal of an employee by a Criminal Court would not automatically and conclusively impact the Departmental Proceeding. The reasoning for such conclusion is analysed in Union of India vs. Purushottam, reported in (2015) 3 SCC 779, where the Court referred to the disparate degrees of proof in the two proceedings i.e. beyond reasonable doubt in criminal prosecution contrasting with pre-ponderance of probability, in the departmental proceeding. The failure of the prosecution in assimilation and proper presentation of evidence, which is not in the control of the disciplinary authority was also highlighted as the reason for the Court's conclusion. That apart, the obligation of the Court to render its verdict in criminal matters on the basis of standard of proof beyond reasonable doubt, is projected as the justification for not accepting the acquittal verdict, to allow automatic exoneration of a delinquent, in a departmental proceeding.
13. Proceeding on the same line, the Supreme Court in S. Samuthiram (Supra), held that the strict burden of proof required to establish guilt in a Criminal Court, in not required in a Disciplinary Proceeding and the pre- ponderance of probability is sufficient, to draw conclusion against the delinquent.
14. With the above understanding of law, if we examine the basis for the conclusion drawn by the inquiry officer, what is discernible is that the charges have been held to be proved on the basis of documentary evidence produced in the enquiry. The Local Cheque Collection Register, the Credit Vouchers and the Debit Vouchers, which were fraudulently prepared by the delinquent, were the primary materials on the basis of which, the charges Page No.# 6/11 were found to have been established, by the inquiry officer. The proper application of mind to the materials available on record by the Enquiry Officer can be inferred from the fact that the Charge No.3(c) was found to be not proved because of the mismatch of the concerned documents with the allegation in the Charge No.3(c).
15. It is further seen that copies of all documents relied by the prosecution were furnished to the delinquent and he was also given the opportunity to inspect the original documents available at the enquiry venue. In fact, the Dy. Manager was satisfied with the genuineness of the supplied documents and therefore, he did not feel the need to compare the furnished documents with the original records. The delinquent actively participated in the enquiry and also submitted defence proof and placed his arguments before the inquiry officer. The concerned materials were matched with the charges and the conclusions in my perception, were recorded on the basis of cogent evidence.
16. In the above backdrop, no infirmity or error is seen with the disciplinary action. As earlier noted, the acquittal in the Criminal Case was primarily on account of the failure of the prosecution to discharge their responsibility in the Criminal Trial. If we now apply the principle of pre- ponderance of probability to test the finding of the inquiry officer, there is no manner of doubt that the conclusions have been drawn on the basis of cogent materials like the Local Cheque Collection Register, the Credit Vouchers and the Debit Vouchers and contrary evidence could not be brought by the delinquent for a contrary conclusion in the matter.
17. That apart, I find that the disciplinary authority had taken into consideration all the relevant materials and weighed the gravity of the misconduct and then penalized the Dy. Manager. The copy of the inquiry report was furnished to the delinquent and his response were taken into account by the disciplinary authority. The delinquent participated in the disciplinary enquiry without any reservation. Thus it cannot be said that natural justice was denied to him."
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6. Having referred to the above extracted portions of the impugned judgment in extenso, we find that the learned Single Judge as the Writ Court has considered the issue within the scope of judicial review of administrative action, as defined by Hon'ble Supreme Court of India. In the cases of disciplinary proceedings, the scope of interference in judicial review of administrative action is very limited and confined to see whether such administrative action is based on illegality, procedural irregularity and irrationality. The Court would interfere if the decision was one that is contrary to law; or relevant factors were not considered; or irrelevant factors were considered; or the decision was one which no reasonable person could have taken.
7. To judge the validity of any administrative order or statutory discretion, it is to be found out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The Court would certainly consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse.
The Court would not, however, go into correctness of the choice made by the administrator amongst the various alternatives open to him. The Court in such circumstances is not required to substitute its own decision for the decision of the administrator.
8. From the above, it becomes evident that the Courts/Tribunal will only play a secondary role while the primary judgment as to the reasonableness will remain with the executive or the administrative authority. The Court would always be slow to interfere with the administrative functions, if the decision of the administrator is not visited by one of the vices narrated earlier.
The Court would certainly interfere if there is manifest error in exercise of power or exercise of the power is manifestly arbitrary.
9. Administrative decisions are subject to judicial review only on the ground of Page No.# 8/11 perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity.
Judicial review is directed not against the decision but the decision making process.
10. Ordinarily the Court would not interfere on mere errors, but only palpably arbitrary decisions. The Courts ordinarily would not interfere with the recommendations of any expert body which are accepted by the Government, unless it suffers from the vice of arbitrariness, irrationality, perversity or violates any provision of the law.
The Court cannot sit as an appellate authority, entering the arena of disputed facts and figures to opine with regard to the manner in which the authority ought to have proceeded, without finding any violation of rules or procedure.
11. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.
The High Court/Tribunal would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the petitioner, or whether there has been lapse in performance by the respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
If an error has to be established by a process of reasoning, on points where Page No.# 9/11 there may reasonably be two opinions, it cannot be said to be an error on the face of the record.
If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the Writ Court/Tribunal.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice.
[Vide the judgments -
1. State of Rajasthan & Ors. Etc. Etc. -Vs- Union of India Etc., 1977 SCC (3) 592;
2. Peerless General Finance and Investment Co. Ltd. -Vs- RBI [Peerless General Finance and Investment Co. Ltd. -Vs- RBI, (1992) 2 SCC 343] (SCC p. 375, para 31);
3. Union of India & another -Vs- G. Ganayutham (Supreme Court, 27.08.1997),
4. Nalini and 3 others -Vs- The Governor, State of Tamil Nadu, Madras High Court, 2000(1) CTC 28, 25 November, 1999;
5. Om Kumar and ors. -Vs- Union of India (Special Leave Petition (civil) 21000 of 1993, 17 November, 2000;
6. Indian Railway Construction Co. -Vs- Ajay Kumar [Appeal (civil) 3299 of 2000, 27th February, 2003];
7. Delhi Development Authority -Vs- M/s UEE Electricals Engg. Pvt. Ltd. (2004) 11 SCC 213;
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8. B.P. Singhal -Vs- Union of India & another, {Writ Petition (Civil) No.296 of 2004, decided on 7 May, 2010;
9. Sarvepalli Ramaiah -Vs- The District Collector, Chittor Supreme Court of India - Civil Appeal No.7461 of 2009, decided on 14.03.2019
10. Vasavi Engineering College Parents Association -Vs- State of Telangana 2019 SCC Online SC 805, decided on 01.07.2019;
11. West Bengal Central School Service Commission & ors. -Vs- Abdul Halim and Ors. 2019 SCC OnLine SC 902 (Civil Appeal No.5824 of 2019), decided on 24.07.2019;
12. Municipal Corporation Neemuch -Vs- Mahadeo Real Estate, Civil Appeal Nos.73197320 of 2019 (arising out of S.L.P.(C) Nos.172173 of 2019, decided on 17 September, 2019.] (Emphasised by us)
12. It is evident from the above extracted portions that the Writ Court has considered the conclusion drawn by the enquiry officer; the basis of conclusion; the fact that relevant documents were taken into account by the disciplinary authorities and were put to the delinquent; the fact that opportunity was given to the delinquent to inspect the original documents available at the enquiry venue; the fact that the delinquent was satisfied with the genuineness of the supplied documents and therefore he did not feel the need to compare them with the original records; the delinquent actively participated in the enquiry and submitted defence proof and placed his argument.
The process of adjudicating therefore was considered by the writ Court within the scope of judicial review of administrative action.
As held by the Hon'ble Supreme Court of India in various judgments as extracted above, the Writ Court is not required to sit on appeal and re-appreciate the entire evidence. Only the process that was required to be followed by the administrator was required to be to ascertained as to whether any prejudice was caused to the delinquent or not.
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13. So far as the acquittal in criminal case is concerned, the learned Writ Court/learned Single Judge, in our considered opinion, has taken into account the relevant laws to conclude that in criminal prosecution, the prosecution has to prove the charges beyond the reasonable doubt; contrasting with preponderance of probability in departmental proceedings.
Learned Single Judge has, in reference to the judgment of acquittal, held that the prosecution withheld the vouchers which had been fraudulently prepared/incriminating evidence from the Trial Court, which persuaded the Trial Judge to draw presumption in favour of the accused/delinquent. The material documents/incriminating evidence was not produced and therefore, acquittal was recorded.
Also in criminal prosecution the prosecutor is in control of the proceedings, whereas in departmental proceedings all the relevant facts, circumstances and the documents were taken into account.
14. Considering various facts and circumstances of the case emanating from the impugned judgment, we find no reason in writ appellate/intra-Court appeal jurisdiction to interfere. Possible view has been taken on the basis of relevant evidences, facts and circumstances emanating and the law as declared by the Hon'ble Supreme Court of India.
15. Dismissed.
JUDGE CHIEF JUSTICE Comparing Assistant