Madhya Pradesh High Court
Deepak Kumar Das vs Union Bank Of India on 5 September, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
Writ Appeal No.57/2016 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Appeal No.57/2016
Deepak Kumar Das v/s Union Bank of India & Others
Indore, dated 05.09.2019
Ms. Geetanjali Chaurasia, learned counsel for the
appellant.
The appellant before this Court has filed this present
writ appeal under Section 2(1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal)
Adhiniyam, 2005 being aggrieved by order dated
18.11.2015 passed by the learned Single Judge in Writ
Petition No.7461/2011 (Deepak Kumar Das Vs. Union
Bank of India and Others).
02. The facts of the case reveal that the appellant, who is
a dismissed Bank employee, has filed a writ petition before
this Court against the order dated 10/03/2004, by which, he
was dismissed from service and order dated 25/04/2011
dismissing the appeal of the appellant. A prayer has been
made for quashment of both the orders and to treat the
appellant in service till his normal date of retirement i.e.
30/06/2009.
03. The facts of the case further reveal that the appellant
was posted as Senior Manager, Union Bank of India,
Malharganj Branch, Indore and he was on leave from
Writ Appeal No.57/2016 2
04.10.2000 to 06.10.2000. The appellant's contention is that
during the aforesaid period, Smt. Allice Joseph, In-charge
of the Hall and Shri J. N. Rathore, In-charge of Advances
Department, who were responsible for granting loan,
granted further loan / increased the limits to certain
interested parties, who already were granted limits in
respect of advances.
04. The appellant's contention is that he was charge
sheeted on 20/10/2002. The charge-sheet dated 20.10.2002
along with Memorandum dated 29.10.2002 was served
upon the appellant and a supplementary charge-sheet dated
22.10.2002 was also served upon him.
05. The appellant did submit a reply to the charge-sheet
and after conducting a detailed inquiry, the Inquiry Officer
has held the appellant guilty of the charges levelled against
him. A copy of Inquiry Report was furnished to the
appellant. The appellant did submit a reply to the Inquiry
Report, and thereafter, the disciplinary authority has passed
an order dated 10.03.2004 dismissing the appellant from
service. The appeal preferred in the matter was dismissed
by an order dated 30.04.2004.
06. The appellant came-up before this Court by filing a
Writ Appeal No.57/2016 3
writ petition and the same was registered as Writ Petition
No.7792/2006. This Court after setting aside the order
passed by the appellate authority has remanded the matter
back to the appellate authority to pass a speaking order. The
appellate authority has once again passed a speaking order
dated 25.04.2011 dismissing the appeal.
07. The appellant before this Court has raised various
grounds and his contention is that the material witnesses
were not examined in the matter, necessary documents were
not supplied to the petitioner, substance allowance was not
fully paid and he has been discriminated in the matter. He
has also raised a ground alleging that various procedural
irregularities took place in the matter.
08. Learned counsel for the appellant has argued before
this Court that the learned Single Judge has not looked into
the aforesaid grounds and it is a case of violation of
principles of natural justice and fair play.
09. The stand of the respondent is that inquiry was
conducted strictly in consonance with the statutory provisions governing the field. The appellant was granted an opportunity to defend himself. There is no violation of principles of natural justice and fair play nor the appellant Writ Appeal No.57/2016 4 has been discriminated in the matter of punishment, keeping in view the gravity of charge and the punishment of dismissal has rightly been inflicted upon him.
10. The learned Single Judge, after going through the entire record of the Departmental Enquiry proceedings, has arrived at a conclusion that the charges have been rightly proved based upon the material produced before the Inquiry Officer and there is no procedural irregularities in the matter of Departmental Enquiry. Relevant paragraphs of the order passed by the learned Single Judge reads as under:-
"I have heard the learned counsel for the parties and perused the record.
The record reveals that there were as many as 39 charges against the petitioner in the departmental enquiry and out of them 28 charges have been proved. These charges relate to transaction and approvals by the petitioner in respect of different accounts in the bank. The findings have been recorded that reckless financing, permitting huge and indiscriminate excess by violating bank instruction were done by the petitioner in the different accounts without report to the higher officers and entries in the books of account were manipulated with intention to defraud the bank. The detailed enquiry report is on record. The disciplinary authority as well as the appellate authority in the impugned orders have considered the charges in respect of each of account which has been found proved and have noted various irregularities and illegalities were committed by the petitioner and it has been found that the petitioner had failed to discharge his duties with utmost devotion, diligence, honesty and integrity and had failed to take possible steps to ensure and protect the interest of bank and he had done acts unbecoming of a bank officer. It has further been noted by the appellate authority that acts of omission and commission on the part of petitioner had resulted into the huge loss of more than 5 crores to the Writ Appeal No.57/2016 5 bank. Both the disciplinary as well as appellate authority have expressed that dishonest employee should have no place in the public employment like the nationalize bank.
Supreme court in the matter of Bank of India and another Vs. Degala Suryanarayana reported in 1999(5) SCC 762 has held that finding recorded in the enquiry supported by the reasoning and based on evidence on record is not open to the judicial review. Supreme court in the above case has held as under:
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. 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. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India Vs. H.C. Goel the Constitution Bench has held:
[T]he High court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."Writ Appeal No.57/2016 6
Counsel for petitioner has failed to point out that the findings which have been recorded by the enquiry officer and found proved by the disciplinary authority as well as appellate authority are perverse or they are not supported by any evidence. On the contrary, the record reveals that the findings have been recorded after due consideration of the evidence.
Counsel for petitioner has raised the plea that though Smt. Allice Joseph Incharge of Hall and Shri J.N. Rathore Incharge of Advances department were sought as witness but they were not examined hence the enquiry proceeding is vitiated. Counsel for respondent has produced before this court a photocopy of the entire record of the enquiry proceeding which reveals that number of witnesses have been examined who have supported the charges therefore, merely non examination of these two witnesses will not vitiate the proceedings. Even otherwise against these two persons separate enquiry in respect of alleged misconduct has been conducted and they have been found guilty and given punishment. The reliance upon the judgment of the Supreme court in the matter of Hardwarilal Vs. State of UP & others reported in 2000 SCC (L & S) 85 by counsel for petitioner is misplaced because that was a case where the key witnesses i.e. the complainant and employee who had accompanied the petitioner to the hospital were not examined as witness who were necessary for disclosing the state of inebriation but the present is a case where the relevant witnesses have been examined.
Learned counsel for petitioner has also raised the plea that necessary documents were not supplied to the petitioner. The record reveals that petitioner was supplied all relevant documents during the enquiry. Alongwith the communication dated 6/3/03 petitioner was supplied documents which were required for his defence. In the enquiry proceeding before the enquiry officer on 23/4/03 the petitioner had admitted the inspection of bank documents, preparation of list of defence documents and inspection of defence documents. The report of enquiry officer also reveals that copies of documents were supplied to the petitioner during the enquiry and appellate authority also has noted that petitioner was given opportunity to take inspection of the documents, therefore at this stage it is not open to the petitioner to contend that necessary documents were not supplied.
Counsel for petitioner has also submitted that full subsistence allowance was not paid but reply of respondents reveals that subsistence allowance was paid Writ Appeal No.57/2016 7 to the petitioner after permissible deduction in accordance with the Union Bank of India Memorandum dated 10/3/2004 and circular dated 18/11/2003. It has further been revealed that cheque had bounced due to the fault of petitioner. That apart, petitioner has not demonstrated before this court by furnishing sufficient details about the actual payment in respect of subsistence allowance and deficiency if any in this regard. Hence the plea of petitioner that he was not paid the subsistence allowance in accordance with the Rules cannot be accepted.
Counsel for petitioner has also raised the plea that he has been discriminated in the matter of punishment and Smt. Allice Joseph has been awarded punishment of withholding of one increment and Shri J.N. Rathore Incharge of Advance Department has been awarded the punishment of withholding of three increments for three years. The nature of duties, responsibilities and role of these two employees in the alleged misconduct was different. The charges have been levelled and proved against the petitioner in respect of his working as Branch manager. The punishment has been imposed keeping in view the gravity of misconduct committed by petitioner therefore, the plea of discrimination cannot be accepted.
Counsel for petitioner has placed reliance upon the judgment of the Supreme court in the matter of Rajendra Yadav Vs. State of Madhya Pradesh and others reported in (2013) 3 SCC 73 but in the present case the nature of involvement of petitioner in respect of transaction in question was different from co-delinquent, therefore, the petitioner cannot claim the parity or benefit of said judgment. He has also placed reliance upon Division Bench Judgment of this court in the matter of Mohan Chandran Vs. Union of India and others, reported in 1986 LAB.I.C. 1245 but in that case the person charged with even more serious misconduct was given minor punishment hence the plea of discrimination was found proved but in the case of petitioner the charge which was found proved as against the petitioner as compared to his role and position in the bank is more serious, therefore, he has been awarded the punishment of dismissal.
Supreme court in the matter of State Bank of India and another Vs. Bela Bagchi and others reported in (2005) 7 SCC 435 considering the case of bank employee has held as under:
"15. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the Writ Appeal No.57/2016 8 depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority- um- Regional Manager Vs. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit which resulted in the case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."
In the aforesaid circumstances no case for interference in the impugned orders is made out. The writ petition is accordingly dismissed."
11. This Court has also gone through the entire record of the case and as many as 39 charges were levelled against the appellant in the Departmental Enquiry and 28 charges have been proved. The findings arrived at by the Inquiry Officer establish that the appellant was reckless in financing. He permitted huge and indiscriminate excess by violating instructions relating to Bank in different accounts without reporting it to the higher officers. The entries in the books of account were manipulated with intention to defraud the Bank, which are certainly very serious charges. Writ Appeal No.57/2016 9
12. A banker cannot be permitted to act with dishonesty. A Bank Officer is required to exercise higher standard of honesty and dignity. He deals with money of depositors and customers and in the present case, the appellant, as proved from the inquiry, has certainly committed serious misconduct on account of which the order of dismissal has been passed.
13. The learned Single Judge has taken into account the judgments relied upon the in the case of Bank of India and Another Vs. Degala Suryanarayana reported in 1999 (5) SCC 762, Hardwarilal Vs. State of U.P. & Others reported in 2000 SCC (L & S) 85, Rajendra Yadav Vs. State of Madhya Pradesh & Others reported in (2013) 3 SCC 73, Mohan Chandran Vs. Union of India & Others reported in 1986 LAB.I.C. 1245, State Bank of India and Another Vs. Bela Bagchi & Others reported in (2005) 7 SCC 435.
14. The Hon'ble Apex Court in the case of Chairman- Cum-Managing Director, Coal India Limited and Another v/s Mukur Kumari Choudhuri & Others reported in (2009) 15 SCC 620 in paragraph - 13 and 14 has held as under:-
"13. It has been time and again said that it is not open to the High Court to examine the findings recorded by Writ Appeal No.57/2016 10 the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision-making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procudural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.
14. The Single Judge of the High Court is paras 43 and 44 of the judgment observed thus:
43. This Court is of the view that the so-
called order dated 29.11.2000 is a mere communication WITHOUT ACTUALLY serving the original order of the disciplinary authority. Merely transmitting the decision of the disciplinary authority was not sufficient since this was a matter involving the punishment of removal from service entailing civil consequences.
44. We are dealing with a case of removal from service for an alleged absence of 6 (six) months. This Court is of the view that the respondents were bound to adhere to a fair and transparent procedure by firstly serving the actual order of the disciplinary authority upon the petitioner and then, by giving reasons as to why they chose not to agree with what the petitioner wanted to say qua his absences when, after admitting the absence, he gave reasons as to why he had remained absent. They were also obliged to strictly obey the orders of this Court. In that view of the matter, the argument of Mr. Aloke Banerjee to the effect that the respondents were not required to give reasons, is not acceptable to hits court. Consequently the judgments cited by him namely Ram Kumar v/ State of Haryana and the other judgments such as Dhurba Pada Ghosh v/s Bank of Baroda and Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi are held to be not applicable because in this case, it was the desire and order of the Hon'ble Division Bench that the respondents should deal with the matter in accordance with law. In the opinion of this Court, 'in accordance with law' means and includes observing the Writ Appeal No.57/2016 11 principles of natural justice and giving reasons because the respondents were supposed to be dealing with his pleas relating to his explanations which were so very crucial to his case. Consequently and in the facts and circumstances of this case, none of the judgments cited by Mr. Banerjee can be said to have any application."
In the aforesaid case, the Apex Court has held that in absence of any procedural irregularity or irregularity in conduct of Departmental Enquiry, the question of interference does not arise, especially when, the charges against the delinquent stood proved.
15. In the case of State of Uttar Pradesh & Another v/s Man Mohan Nath Sinha & Another reported in (2009) 8 SCC 310, the Apex Court has again dealt with scope of interference in the matter of Departmental Enquiry. Paragraphs - 15 and 16 of the aforesaid judgment reads as under:-
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re- appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court.Writ Appeal No.57/2016 12
16. Resultantly, the appeal is allowed and the order dated May 23, 2008, passed by the High Court is set aside. Writ Petition is restored to the file of the High Court for fresh hearing and disposal. Needless to say that the respective arguments of the parties are kept open to be agitated before the High Court which obviously will be considered on their own merit. We request the High Court to dispose of the matter as expeditiously as may be possible and preferably within four months. No order as to costs."
In the aforesaid case, the Apex Court has held that it is not open to High Court to reappreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as Court of appeal and reach its own conclusion.
16. In the present case, charges have been proved against the delinquent and this Court cannot reappreciate or reappraise the evidence led before the Inquiry Officer.
17. The Hon'ble Apex Court in the case of State Bank of Hyderabad & Another v/s P. Kata Rao reported in (2008) 15 SCC 657 has again dealt with the scope of judicial review in a Departmental Enquiry and held that that the jurisdiction of superior Court in interfering with the finding of fact arrived at by the Inquiry Officer is quite limited. Paragraphs - 18 and 19 of the aforesaid judgment reads as under:-
"18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the Enquiry Officer is Writ Appeal No.57/2016 13 limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/ or where the departmental proceedings had already been initiated or to continue therewith.
19. We are not unmindful of different principles laid down by this court from time to time. The approach that the court's jurisdiction is unlimited although had not found favour with some Benches, the applicability of the doctrine of proportionality, however, had not been deviated from."
In light of the aforesaid judgment, the question of interference with the findings of fact arrived at by the Inquiry Officer, in the peculiar facts and circumstances of the case, does not arise.
18. In the case of State of Rajasthan & Others v/s Sujata Malhotra reported in (2003) 9 SCC 286, the Hon'ble Apex Court has held that interference by the High Court in a Departmental Enquiry and the findings arrived at by the Inquiry Officer is not permissible until and unless any lacuna in the departmental proceeding is established.
19. In the present case, the department has followed the prescribed procedure for conducting Department Enquiry. Principles of natural justice and fair play have been observed, charges have been proved based upon the various evidence produced before the Inquiry Officer, and Writ Appeal No.57/2016 14 therefore, question of interference by this Court does not arise.
20. The Hon'ble Apex Court in the case of Chairman and Managing Director, United Commercial Bank & Others v/s P.C. Kakkar reported in (2003) 4 SCC 364 in paragraphs - 11 to 15 has held as under:-
"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.
13. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand vs. Food Corporation of India Ltd. and Ors.(1997 [3] SCC 371), even if a co-delinquent is given lesser punishment it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different.
14. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money Writ Appeal No.57/2016 15 of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik (1996 (9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
15. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has Writ Appeal No.57/2016 16 superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application."
21. The appellant before this Court was a bank officer and he was required to exercise higher standard of honesty and dignity. The charges have been proved against him and the charges against the appellant / petitioner were not casual in nature, they were serious, and therefore, the punishment awarded by the disciplinary authority does not warrant any interference. The decision taken by the authority can never said to be an illogical decision nor it suffers from any procedural impropriety, and therefore, question of interference by this Court does not arise.
22. The Hon'ble Apex Court in the case of Coimbatore District Central Cooperative Bank v/s Coimbatore District Central Cooperative Bank Employees Association & Another reported in (2007) 4 SCC 669 has dealt with judicial review in the matter Departmental Enquiry as well as applicability of doctrine of proportionality. The Apex Court in the aforesaid case in paragraphs - 17, 18, 19, 21, Writ Appeal No.57/2016 17 24, 29 and 34 has held as under:-
"17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived at in our legal system but has come to stay. With the rapid growth of Administrative Law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the 'doctrine of proportionality'.
18. "Proportionality" is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities.
19. de Smith states that 'proportionality' involves 'balancing test' and 'necessity test'. Whereas the former ('balancing test') permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter ('necessity test') requires infringement of human rights to the least restrictive alternative. ['Judicial Review of Administrative Action'; (1995); pp. 601-605; para 13.085; see also Wade & Forsyth; 'Administrative Law'; (2005); p.366].
21. The doctrine has its genesis in the field of Administrative Law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no 'pick and choose', selective applicability of Government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a 'sledge- hammer to crack a nut'. As has been said many a time;
"Where paring knife suffices, battle axe is precluded".
24. So far as our legal system is concerned, the doctrine is well-settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by Writ Appeal No.57/2016 18 an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a Court to interfere with such penalty in appropriate cases.
29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on 'no evidence' or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it.
34. As observed by this Court in M.P. Gangadharan & Anr. v. State of Kerala & Ors., (2006) 6 SCC 162, the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straight-jacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are not unmindful of the development of the law that from the doctrine of 'Wednesbury unreasonableness', the Court is leaning towards the doctrine of 'proportionality'. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted."
23. The Hon'ble Apex court in the case of Union of India & Others v/s Manab Kumar Guha reported in (2011) 11 Writ Appeal No.57/2016 19 SCC 535 in paragraphs - 11 to 13 has held as under:-
"11. True it is that the Appellate Authority while setting aside the order of removal and directing for de- novo enquiry earlier had found the same bad in law on account of various grounds including the ground of non- examination of the victim Harish Chandra Ram. Thereafter in the de novo enquiry, the enquiry officer had taken pains to call Harish Chandra Ram from his native place but he did not appear during the enquiry. It is not the case of the writ petitioner that the disciplinary authority purposely withheld Harish Chandra Ram from appearing in the departmental enquiry. Harish Chandra Ram had given a written complaint, a copy of which was produced during the course of enquiry which supports the charge levelled against the writ petitioner.
12. Further writ petitioner in his defence had accepted the detention of Harish Chandra Ram and his release. However, he has denied the allegation of snatching of money from him but from his own defence, it is evident that he had accepted the incident except of course that he had not snatched the money. On the basis of the materials on record, the enquiry officer held the writ petitioner guilty with which the disciplinary authority as also the appellate authority agreed.
13. It is well settled that High Court while exercising the power of judicial review from the order of the disciplinary authority do not act as a Court of appeal and appraise evidence. It interferes with the finding of enquiry officer only when the finding is found to be perverse. We are of the opinion that the Division Bench of the High Court erred in setting aside the order of learned Single Judge and quashing the order ofcompulsory retirement. The finding recorded by the enquiry officer is based on the materials on record and on proper appreciation of evidence which cannot be said to be perverse calling for interference by the High Court in exercise of its power of judicial review."
The Apex Court in the aforesaid case has held that the High Court while exercising judicial review in respect of the order of disciplinary authority does not act as a Court of appeal and appraise evidence and the findings can be interfered with, only if they are perverse findings. Writ Appeal No.57/2016 20
24. In the present case, findings are not at all perverse findings, the charges have been proved, charges are serious in nature, and therefore, question of interference by this Court does not arise.
25. It is not a case where the department has adopted pick and choose method while imposing punishment upon the appellant. The appellant was holding a very responsible post in the bank. Charges have been proved against him and the punishment is quite commensurate to the guilt of the delinquent, and therefore, this Court does not find any reason to interfere with the order of punishment.
26. It is the well settled preposition of law that in a Departmental Enquiry charges are not required to be proved beyond reasonable doubt like in a criminal trial. The charges are required to be proved based upon the theory of preponderance of probability, and therefore, once the inquiry has been held strictly in consonance with the statutory provisions i.e. Union Bank of India Officer Employees (Discipline and Appeal) Regulation, 1976 read with various memorandums of settlement as well as keeping in view the principals of natural justice and fair play and as there is no procedural irregularities established, Writ Appeal No.57/2016 21 the question of interference by this Court does not arise keeping in view the judgment delivered by the Hon'ble Apex Court from time to time.
Accordingly, the present writ appeal stands dismissed.
Certified copy, as per rules.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ravi
Digitally signed by Ravi Prakash
Date: 2019.09.24 10:33:32 +05'30'