Prabhu Charan Achary Vs Chairman,a.Board

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.3891 of 2005

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(In the matter of application under Articles 226 and 227 of the Constitution of India).

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Prabhu Charan Acharya … Petitioner

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-versus-

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Chairman, Appellate Board, … Opposite Parties Board of Directors, Cuttack Gramya Bank, Cuttack and others

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For Petitioner : Mr. A. Patnaik, Advocate For Opposite Parties : Mr. M.K. Mishra, Sr. Advocate along with Mr. S. Senapati, Advocate (OPNos.1 to 3)

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CORAM:

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JUSTICE G. SATAPATHY

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DATE OF HEARING :23.10.2024 DATE OF JUDGMENT:22.01.2025

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G. Satapathy, J.

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1. The petitioner by means of this writ petition

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invokes the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India seeking to challenge inter-alia the order of degradation dated 02.07.2004 passed by the Appellate Authority-cumOPNo.1 and, thereby, confirming the order dated

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WP(C) No.3891 of 2005

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28.01.2004 passed by the OPNo.2-Disciplinary Authority awarding punishment by degrading the petitioner to the post in the Scale-I JMJ from Scale-II MMG in terms of Regulation 38(1)(b)(ii) of Cuttack Gramya Bank Officers and Employees Service Regulation, 2002 (in short, “the Regulation”).

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2. Facts in precise are that the petitioner had joined in the post of Manager in the scale of MMG Scale-II, but when the petitioner was working as Manager, Pakura Branch in the District of Kendrapada, on 05.12.2002, OPNo.2 issued to the petitioner the statement of allegation together with article of charges on certain illegalities, criminal negligence and misconduct calling upon him to submit written statement of defence and, accordingly, the petitioner submitted his written statement of defence, but being dissatisfied, the Disciplinary Authority ordered a domestic enquiry against him on the article of charges basing on the statement of allegation issued earlier to him. Accordingly, on 18.12.2003, the inquiry officer

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submitted a report against the petitioner after

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analyzing both the oral and documentary evidence, which are collected in the enquiry. In the enquiry report, out of five charges, the Enquiry Officer found two charges each proved and partially proved and one charge not proved. Against such enquiry report, the petitioner appealed before the Appellate forum and the Appellate Authority-cum-OPNo.1 dismissed the appeal of the petitioner. Being aggrieved, the petitioner has approached this Court in this writ petition on various grounds including the ground that the finding of the Appellate Authority and the Enquiry Officer is without any evidence or irrelevant consideration of evidence and non-application of mind.

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3. In the course of hearing of the writ petition, Mr. Avijit Patnaik, learned counsel for the petitioner has argued that the punishment imposed on the petitioner by degrading him to the post of JMJ Scale-I is on the basis of no evidence and irrelevant consideration of inadmissible materials and, thereby, the finding of the Enquiry Officer is not only perverse, but also unsustainable. In elaborating his submission, Mr. Patnaik has further WP(C) No.3891 of 2005 Page 3 of 19

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submitted that in the enquiry report, the petitioner was found to have not committed any fraud with respect to charge No.1, but the Enquiry Officer had relied upon another incident of over drawal and non-depositing in SB Account No.5324 of R.N. Lenka, which does not find place in charge-sheet and the enquiry report thereby itself is not sustainable. It is also submitted by Mr. Patnaik that the principle of natural justice has not been followed while imposing punishment of reversion to the petitioner by simply alleging that the petitioner has failed to monitor and supervise the Branch causing thereby a loss of Rs.1.27 lakhs which has occurred due to fraud of other persons and the loss of Bank has gone up to the extent Rs.2.55 lakhs, but nowhere in the charge-sheet there is mention about loss of Rs.2.55 lakhs to the Bank. It is further submitted for the petitioner that the past adverse record of the petitioner has been taken into account while awarding punishment against him, but the previous past record does not form part of the punishment and, thereby, non-communication of previous punishment in the charge-sheet will vitiate the punishment imposed on

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the petitioner. While concluding his argument by relying upon the decision in State of Mysore Vs. K. Manche Gowda; 1963 SCC OnLine SC 50, the learned counsel for the petitioner has submitted that the petitioner having neither committed any misconduct nor being found guilty for dereliction of duty, the punishment as awarded to him should be quashed. Accordingly, Mr. Patnaik has prayed to allow the writ petition by quashing the order of the Enquiry Officer as well as the Appellate Authority passed under Annexures-5 and 7.

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3.1. In response to the submission as advanced for the petitioner, Mr. Manoj Kumar Mishra, learned Senior Counsel appearing along with Mr. S. Senapati, learned counsel for the OPNos.1 to 3 has, however, submitted that the report of the Enquiry Officer was based upon statement and evidence, both oral and documentary on record and the findings thereon are in accordance with the Regulation. Mr. Mishra has, however, submitted that the scope of judicial review against the findings recorded by the Enquiring Officer in the disciplinary proceeding is very limited, unless the findings

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recorded therein in the disciplinary proceeding are on the basis of no evidence or the finding thereon is wholly arbitrary or capricious that no reasonable person can ever

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arrived at such conclusion. It is further argued by Mr. Mishra, learned Senior Counsel that the punishment imposed on the petitioner is not wholly on the basis of previous record of punishment, but on the basis of findings of the enquiry report as submitted by the Enquiry Officer, who after analyzing the oral and documentary evidence adduced in the course of enquiry has found the petitioner guilty of negligence and misconduct and even non-communication of the previous punishment in show cause notice to the delinquent will not vitiate the punishment imposed on him, once the delinquent is found to be guilty of the charge(s). It is also submitted by Mr. Mishra that due to negligence and dereliction in duty by the petitioner, the Bank has suffered a loss of Rs.1.27 lakhs, which has gone up to Rs.2.55 lakhs and, thereby,

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the petitioner having rightly been found guilty of negligence and misconduct, the punishment imposed on him calls for no interference. Accordingly, Mr. Mishra has

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prayed to dismiss the writ petition being not

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maintainable.

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4. After having considered the rival

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submissions upon perusal of record, since the petitioner claims that the findings had been arrived at with no evidence, this Court considers it apt to extract the charges as framed against the petitioner in the departmental proceeding, which reads as under:-

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“ (1). Shri Acharya was not sincere in his duty. He lacked supervising ability and at the same time he was apathetic to organizational interest of the Bank which attributed maintaining a parallel Banking System by the fraudsters. This was a gross violation of Regulation 17 of Cuttack Gramya Bank Officers & Employees Service Regulation, 2000.

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(2). Shri Acharya as Manager was not inspecting/ supervising daily work of the Branch and thereby gave scope to some staffs to adhere corrupt practices detrimental to the interest of the Bank and thereby violated Regulation 19 of Cuttack Gramya Bank Officers & Employees Service Regulation, 2000.

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(3). Shri Acharya as Manager was not at all monitoring the Balancing of Books of Accounts for which a fraud of Rs.1.27 lakhs occurred in the Branch. This is violation of Regulations 17 & 19 of Cuttack Gramya Bank Staff Service Regulation, 2000.

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(4). Shri Acharya by submitting wrong balancing certificate mis-leading the higher officials and keeping the balancing work pending and violated

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the Regulation 17 & 19 of Cuttack Gramya Bank Officers and Employees Service Regulation, 2000.

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(5). Shri Acharya was casual, irresponsible and not honest and faithful in his duty for which Bank suffered a loss of Rs.1.27 lacs (as ascertained today). His non-performance and inefficiency tarnished the Bank’s image and thereby violating Regulation 18 & 19 of Cuttack Gramya Bank Officers and Employees Service Regulation, 2000.”

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It is strange, but true that the petitioner in

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his written statement of defence had acknowledged the first charge of over drawal of Rs.6,600/- against SB Account No.5029 due to oversight and it is further claimed by him that the amount so overdrawn was deposited in two phases. The aforesaid fact speaks against the plea of the petitioner that the findings on the charges were recorded with no evidence. Be that as it may, this scope of judicial review against the findings recorded by the Disciplinary Authority is very limited and re-appreciation of evidence by the High Court in exercise of power under Articles 226 and 227 of the Constitution of India is impermissible, which is apparent

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from the law laid down by the Apex Court in Union of

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India and others Vs. P. Gunasekaran; (2015) 2

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SCC 610 , wherein it has been held thus:-

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“ 12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

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(a) the enquiry is held by a competent authority;

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(b) the enquiry is held according to the procedure prescribed in that behalf;

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(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

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(i) the finding of fact is based on no evidence.

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13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

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(i) reappreciate the evidence;

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(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence on which findings can be based.

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(vi) correct the error of fact however grave it may appear to be;

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(vii) go into the proportionality of punishment unless it shocks its conscience.”

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The aforesaid principle was not only

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followed, but also has been reiterated by the Apex

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Court in paragraph-21 in Union of India and others

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Vs. Dalbir Singh; (2021) 11 SCC 321 .

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5. In Union of India and others Vs.

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Subrata Nath; 2022 SCC OnLine SC 1617 , the Apex

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Court upon analyzing the principle as rendered in P.

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Gunasekaran (supra) has held in paragraphs-27 and

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28 of the decision as under:-

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“ 27. We are unable to commend the approach of the learned Single Judge and the Division Bench. There was no good reason for the High Court to have entered the domain of the factual aspects relating to the evidence recorded before the Inquiry Officer. This was clearly an attempt to reappreciate the evidence which is impermissible in exercise of powers of judicial review vested in the High Court under Article 226 of the Constitution of India. We are of the opinion that both, the learned Single Judge as well as the Division Bench, fell into an error by setting aside the order of dismissal from service imposed on the respondent by the Disciplinary Authority and upheld by the Appellate Authority.

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28. We find ourselves in complete agreement with the findings returned by and conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate Authority and upheld by the Revisional Authority in respect of both the Articles of Charge levelled against the respondent and the punishment imposed on him. The respondent being a member of the disciplined force, was expected to have discharged his duty diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs. copper wires from the spot where he was performing his duty. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and stoppage of increment for two years without cumulative effect on one occasion. In such circumstances, the desirability of continuing the

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respondent in the Armed Forces is certainly questionable and the Disciplinary Authority could not be expected to wear blinkers in respect of his past conduct while imposing the penalty of dismissal from service on him.”

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6. Further, in Regional Manager, UCO Bank and another Vs. Krishna Kumar Bhardwaj, (2022) 5 SCC 695 , the Apex Court in paragraph-17 has held as under:-

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“ 17. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 136 of the Constitution of India is well circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has earlier been examined by this Court in B.C. Chaturvedi v. Union of India; H.P. SEB v. Mahesh Dahiya and recently by a three-Judge Bench of this Court (of which one of us is a member) in SBI v. Ajai Kumar Srivastava wherein this Court has held as under: ( Ajai Kumar Srivastava case , SCC pp. 626-27, paras 24-28, out of which paras 24, 25 & 28 are extracted below:-)

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24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent

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with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.”

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25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:

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(i) whether the enquiry was held by the competent authority,

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(ii) whether rules of natural justice are complied with;

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(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.

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28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except 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 those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."

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7. A careful conspectus of the decisions

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referred to above, one thing strongly emerges that reappreciation of evidence in a writ application by invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is impermissible, unless the conclusion so arrived at by the Disciplinary Authority is wholly arbitrary or capricious that no prudent person can ever arrived at such conclusion or the Disciplinary Authority had erroneously failed to admit the admissible and material evidence or the Disciplinary Authority had erroneously admitted the inadmissible evidence, which influenced the findings. It is trite that the Courts, while exercising their power of judicial review in such matter do not sit as the Appellate Authority, but the decision qua the nature and quantum of punishment are the prerogative of Disciplinary Authority and it is certainly not the function of High Court to decide the same. On application of the aforesaid principles and taking into account the fact which are stated in the preceding paragraph, it can be said that the findings arrived at by the Enquiry Officer is on the basis of relevant evidence.

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8. On coming back to the plea of the writ

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petitioner that the previous bad conduct having been not communicated to the petitioner, the finding thereon is not acceptable, but it can be said with certitude that the punishment imposed on the petitioner is not on the sole basis of the findings recorded in the earlier proceeding with regard to his past bad conduct, but fact remains that

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the Enquiry Officer, so also Appellate Authority has carefully assessed or weighed the evidence collected in the enquiry proceeding and arrived at the conclusion finding the petitioner guilty of misconduct. It is also a matter of fact that in State Bank of India and others

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Vs. Mohammad Badruddin, (2019) 16 SCC 69 , the Apex Court after taking note of the decision in K. Manche Gowda (supra) , which has been relied on by the petitioner in this case, has held the following in paragraph-23 of the decision:-

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“ 23. The previous punishments could not be subject-matter of the charge- sheet as it is beyond the scope of inquiry to be conducted by the inquiry officer as such punishments have attained finality in the proceedings. The requirement of second show-cause notice stands specifically omitted by the 42nd Amendment. Therefore, the only requirement now is to send a

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copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. (Thus, the noncommunication of the previous punishments in the show-cause notice will not vitiate the punishment imposed.”

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9. Further, another aspect which can be examined in this case is whether the punishment imposed on the petitioner is shockingly disproportionate, but to examine this said issue, this Court considers it apt to reiterate the findings of the Apex Court in different judgments in the matter. To begin with, it is considered appropriate to discuss the law laid down in T.N.C.S. Corpn. Ltd. and others Vs. K. Meerabai; (2006) 2

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SCC 255 , wherein the Apex Court at paragraph-35 has held as under:-

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“ 35. In the instant case, the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in our opinion, the matter should be dealt with firmly with firm hands and not leniently. In the instant case, the respondent deals with public money and is engaged in financial transactions or acts in a fiduciary capacity and, therefore, highest degree of

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integrity and trustworthiness is a must and unexceptionable. Judged in that background, the conclusion of the learned Single Judge as affirmed by the Division Bench of the High Court do not appear to be proper. We have no hesitation to set aside the same and restore the order passed by the disciplinary authorities upholding the order of dismissal.”

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10. Similarly, in Regional Manager, U.P.S.R.T.C., Etawah and others Vs. Hoti Lal and another; (2003) 3 SCC 605 , the Apex Court at paragraph-10 has held as thus:-

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“ 10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree 20. ] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant

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circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. (If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal.”

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11. From a conspectus of the law as settled with regard to awarding penalty to the delinquent, it needs to be emphasized that it is only in the exceptional circumstance, where it is found that the punishment/penalty awarded by the Disciplinary Authority/Employer is wholly disproportionate and that too, to an extent that it shakes the conscience of the Court, the Court then steps in and interferes. True it is that the award of penalty, which is grossly in excess to the allegations cannot kept in veil, but it remains open for interference under the limited scope for judicial review provided the same is quite excessive to the magnitude of

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misconduct. Thus, on the issues of punishment, when the case at hand is examined on the backdrop of the case as stated above, this Court finds that the learned

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Disciplinary Authority has found the petitioner guilty of negligence and misconduct, which exposes the Bank for a loss of Rs.1.27 lakhs, which is not a small amount when

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the disciplinary proceeding was taken up and the punishment of reversion of the petitioner to the lower grade cannot be considered as a punishment shockingly disproportionate to his misconduct and, thereby, this Court does not find any reason to interfere with the findings of the Disciplinary Authority, so also the Appellate Authority.

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12. In the result, the writ petition being devoid of merit stands dismissed on contest, but in the circumstance there is no order as to costs.

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(G. Satapathy) Judge

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Signature Not Verified

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Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 24-Jan-2025 18:06:35 Oriss a H igh Court, Cuttack, Dated the 22^nd day of January, 2025/Subhasmita

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Prabhu Charan Achary v. Chairman,a.Board

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Prabhu Charan Achary v. Chairman,a.Board

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