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Tuesday, January 10, 2017

where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases.

                                                         R E P O R T A B L E
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7600 OF 2014

ALLAHABAD BANK & ORS.             ...Appellant(S)

                                   Versus
KRISHNA NARAYAN TEWARI            …Respondent(S)


                               J U D G M E N T
T.S. THAKUR, CJI.

1.    In this appeal by special leave the appellant calls  in  question  the
correctness of a judgment and order dated 28th October, 2013 passed  by  the
High Court of Judicature at Allahabad, Lucknow bench, whereby Writ  Petition
No.2867 of 2006 filed by the respondent has been allowed and an order  dated
29th July, 2005 passed by the Disciplinary  Authority  and  that  dated  5th
January, 2006 passed by the Appellate Authority  directing  removal  of  the
respondent from the service of the appellant-bank quashed.  The  High  Court
has as a result directed the appellant bank to provide  all  service/retiral
benefits to the petitioner within ninety days of the order.   The  challenge
mounted by the appellant arises in the following circumstances:

2.    The respondent was employed with the  appellant-bank  and  was  during
the relevant period posted as  Officer  in-charge  at  the  appellant-bank’s
Sultanpur branch in District Sultanpur in the State of  Uttar  Pradesh.   He
was, by an order dated 10th  December,  2004,  placed  under  suspension  in
contemplation of a disciplinary enquiry  which  was  initiated  against  him
with  the  service  of  a  charge-sheet  dated  10th  February,  2005.   The
respondent pleaded  not  guilty  but  the  Enquiry  Officer   concluded  the
enquiry proceedings rather quickly within a span of  just  about  forty-five
days  and  submitted  a  report  dated  27th  May,  2005  holding  that  the
respondent was guilty on all counts except two which were  held  proved  but
only partially. The Disciplinary Authority accepted the findings and  passed
an order imposing upon the respondent the  major  penalty  of  removal  from
service.

3.    Aggrieved, the respondent preferred a departmental  appeal  which  was
dismissed by the Appellate Authority by its order dated 5th  January,  2006.
The respondent then questioned the said two orders before the High Court  in
a writ petition which as noticed earlier has been allowed by the High  Court
in terms of the order impugned in this appeal.

4.    The High Court came to the conclusion that  neither  the  Disciplinary
Authority nor the Appellate Authority had applied  their  mind  or  recorded
reasons in support of their conclusions.   Relying  upon  the  decisions  of
this court in Roop Singh Negi v. Punjab National Bank & Ors.  (2009)  2  SCC
570, Kuldeep Singh v. Commissioner of Police & Ors. (1999) 2  SCC  10,  Nand
Kishore  v. State of Bihar (1978) 3 SCC 366,  Kailash Nath Gupta v.  Enquiry
Officer, Allahabad Bank & Ors. (2003) 9 SCC 480, State  Bank  of  Bikaner  &
Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584 and Mohd. Yunus Khan v.  State
of U.P. & Ors. (2010) 10 SCC 539, the High Court held that the order  passed
by  the  disciplinary   authority   and   the   appellate   authority   were
unsustainable in law.  The High Court found that the  findings  recorded  by
the Disciplinary Authority and affirmed  by  the  Appellate  Authority  were
perverse and were based on no evidence whatsoever.  The High Court  observed
that the Appellate Authority had not  applied  its  mind  independently  and
simply cut and pasted the  findings  of  the  Disciplinary  Authority  while
dismissing the appeal.
5.    On behalf of the appellant-bank it was contended before  us  that  the
High Court had exceeded its jurisdiction  in  re-appreciating  the  evidence
and holding the respondent not guilty.  It was argued that so long as  there
was some evidence  on  which  the  Disciplinary  Authority  could  rest  its
findings, sufficiency or insufficiency of such evidence could  not  be  gone
into by a Writ Court.  Alternatively, it was submitted that  even  if  there
was any infirmity in the orders passed by the Disciplinary Authority or  the
Appellate Authority, on account of absence or insufficiency of  the  reasons
in support of the findings recorded by them, the proper course for the  High
Court was to remand the matter  back  to  the  Appellate  Authority  or  the
Disciplinary Authority as the case may be  for  doing  the  needful  afresh.
The  High  Court  could  not,  on  account  of   absence   of   reasons   or
unsatisfactory appraisal of  the  evidence  by  them,  quash  the  order  of
punishment  and  direct  release  of  the  service  benefits  due   to   the
respondent.

6.    On behalf of the respondent it was on the other  hand  contended  that
the enquiry conducted against the respondent and the conclusion  arrived  at
by the Enquiry Officer, Disciplinary Authority and the  Appellate  Authority
suffered from fatal defects.  Firstly, because the enquiry conducted by  the
Enquiry Officer was unfair and had resulted in gross miscarriage of  justice
on account of the failure of the Enquiry Officer  to  provide  a  reasonable
opportunity to the respondent to lead  evidence  in  his  defense.   In  the
second place the findings recorded by the Enquiry Officer and  so  also  the
Disciplinary Authority were unsupported by any evidence whatsoever and  were
perverse  to  say  the  least.   In  the  third  place,  the   orders   were
unsustainable also for the reason that the same did  not  disclose  due  and
proper application of mind by the Disciplinary Authority and  the  Appellate
Authority.  The order passed by the Appellate Authority was, in  particular,
bad in law as the same did not examine the material on record  independently
and had simply relied  upon  the  findings  of  the  Disciplinary  Authority
without adverting to the points which the respondent had raised  in  support
of his challenge. It was lastly submitted  that  the  respondent  has  since
superannuated and was a physical wreck having suffered a heart attack and  a
debilitating stroke which had confined  him  to  bed.   Any  remand  of  the
proceedings to the  Appellate  Authority  to  pass  a  fresh  order  or  the
Disciplinary Authority for re-examination and  fresh  determination  of  the
respondent’s guilt would not only be harsh but would  tantamount  to  denial
of justice to him.  The High Court was in that view justified  in  taking  a
pragmatic view of the matter and in directing continuity of service  to  the
respondent and release of all service and retiral benefits to him  upto  the
date of his superannuation.

7.    We have given our anxious consideration  to  the  submissions  at  the
bar.  It is true that a writ court is very  slow  in  interfering  with  the
findings of facts recorded by a  Departmental  Authority  on  the  basis  of
evidence available on record.  But it is equally true that in a  case  where
the Disciplinary Authority records a finding  that  is  unsupported  by  any
evidence whatsoever or a finding  which  no  reasonable  person  could  have
arrived at, the writ court would be justified if not duty bound  to  examine
the matter and grant relief in  appropriate  cases.   The  writ  court  will
certainly interfere  with  disciplinary  enquiry  or  the  resultant  orders
passed by the competent authority on that basis if the  enquiry  itself  was
vitiated on account of violation of principles of  natural  justice,  as  is
alleged to be the position in the present case.    Non-application  of  mind
by the Enquiry Officer  or  the  Disciplinary  Authority,  non-recording  of
reasons in support of the conclusion arrived at by them are also grounds  on
which the writ courts are  justified  in  interfering  with  the  orders  of
punishment.  The High Court has, in  the  case  at  hand,  found  all  these
infirmities in the order  passed  by  the  Disciplinary  Authority  and  the
Appellate Authority.  The respondent’s case that the enquiry  was  conducted
without giving a fair and reasonable opportunity  for  leading  evidence  in
defense  has  not  been  effectively  rebutted  by  the   appellant.    More
importantly the Disciplinary Authority does  not  appear  to  have  properly
appreciated the evidence nor recorded reasons in support of his  conclusion.
 To add insult to injury the Appellate Authority instead  of  recording  its
own reasons and independently appreciating the material  on  record,  simply
reproduced the findings of the Disciplinary Authority. All told the  Enquiry
Officer,  the  Disciplinary  Authority  and  the  Appellate  Authority  have
faltered in the discharge  of  their  duties  resulting  in  miscarriage  of
justice. The High Court was in that  view  right  in  interfering  with  the
orders passed by the Disciplinary Authority and the Appellate Authority.

8.    There is no quarrel with the proposition that in cases where the  High
Court finds the enquiry to be deficient  either  procedurally  or  otherwise
the proper course always is to remand  the  matter  back  to  the  concerned
authority to redo the same afresh.  That course  could  have  been  followed
even in the present  case.   The  matter  could  be  remanded  back  to  the
Disciplinary Authority or to the Enquiry Officer for a proper enquiry and  a
fresh report and order. But that course may not have been  the  only  course
open in a given situation. There may be situations where because of  a  long
time lag or such other supervening circumstances the  writ  court  considers
it unfair, harsh or otherwise unnecessary  to  direct  a  fresh  enquiry  or
fresh order by the competent authority.  That is  precisely  what  the  High
Court has done in the case at hand.  The High Court has taken  note  of  the
fact that the respondent had been placed under suspension in the  year  2004
and dismissed in the year 2005.  The dismissal order was challenged  in  the
High Court in the year 2006 but the writ petition remained  pending  in  the
High Court for nearly seven years till 2013.  During the intervening  period
the respondent superannuated on 30th November, 2011.  Not only that  he  had
suffered a heart attack and  a  stroke  that  has  rendered  him  physically
disabled and confined to bed. The respondent  may  by  now  have  turned  65
years of age.  Any remand either to the Enquiry Officer for a fresh  enquiry
or to the Disciplinary Authority for a fresh order or even to the  Appellate
Authority would thus be  very  harsh  and  would  practically  deny  to  the
respondent any relief whatsoever. Superadded to all this is  the  fact  that
the High Court has found, that there was no allegation nor any  evidence  to
show the extent of loss, if any, suffered by the  bank  on  account  of  the
alleged misconduct of the respondent. The  discretion  vested  in  the  High
Court in not remanding the matter back was, therefore, properly exercised.

9.    The next question is whether  the  respondent  would  be  entitled  to
claim arrears of salary as part  of  service/retiral  benefits  in  full  or
part.  The High Court has been rather ambivalent in that regard. We  say  so
because while  the  High  Court  has  directed  release  of  service/retiral
benefits, it is not clear whether the same  would  include  salary  for  the
period between the date of removal and the date of  superannuation.   Taking
a liberal view of the matter, we assume that the High Court’s direction  for
release of service benefits would include the release of his  salaries  also
for the period mentioned above.  We are, however, of the opinion that  while
proceedings need not be remanded for  a  fresh  start  from  the  beginning,
grant of full salary for the period between the date of  dismissal  and  the
date of superannuation would not also be justified.   We,  therefore,  allow
this appeal but only in part and to the extent that while orders  passed  by
the Disciplinary Authority and the Appellate Authority shall stand  quashed,
and the respondent entitled to continuity of service till the  date  of  his
superannuation with  all  service  benefits  on  that  basis,  he  shall  be
entitled to only 50% of the salary for the period between the  date  of  his
removal from service till  the  date  of  superannuation.  Retiral  benefits
shall also be released in his favour.  The order passed by  the  High  Court
shall, to the extent indicated above,  stand  modified.  The  parties  shall
bear their own costs.

                                                           …………………….…..…CJI.
                                                               (T.S. THAKUR)

                                                            ……………………….…..…J.
                                                           (A.M. KHANWILKAR)

New Delhi
January 2,  2017

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