REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). OF 2021
(Arising out of SLP(C) No(s). 3206732068 of 2018)
DEPUTY GENERAL MANAGER (APPELLATE
AUTHORITY) AND OTHERS ...APPELLANT(S)
VERSUS
AJAI KUMAR SRIVASTAVA ...RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. Dissatisfied with the judgment and order dated 13th
September, 2018 passed by the Division Bench of the High Court
of Allahabad, the instant appeals have been preferred at the
instance of the appellant Bank.
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3. Brief facts of the case which are relevant for the purpose are
that the appellant is a statutory body incorporated and
constituted under the State Bank of India Act, 1955. The
respondent joined service as a Cashier/Clerk in Mumfordganj
Branch Allahabad on 07th December, 1981. While on duty, a
misconduct was committed by him for which he was placed
under suspension in the first place by order dated 14th August,
1995 and later the chargesheet dated 11th April, 1996 was
served upon him detailing seven charges of misappropriation of
funds which he had committed in discharge of his duties as an
employee of the Bank.
4. It may be relevant to note that for the selfsame
misappropriation of bank’s money by affording fake credits in his
various accounts maintained at the Branch where he was posted,
a criminal case was also instituted against him for offences under
Sections 420, 467, 468, 471 IPC read with Section 120B IPC and
Section 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act, 1988.
5. After the chargesheet dated 11th April, 1996 was served, the
respondent delinquent submitted his reply dated 08th May, 1996
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denying all the charges. The enquiry officer was thereafter
appointed by the competent authority to hold enquiry in terms of
Bipartite Settlement applicable for award staff of Nationalized
Bank. The respondent had participated in the disciplinary
enquiry and the enquiry officer after holding enquiry in
accordance with the procedure prescribed under the Bipartite
Settlement applicable for award staff of Nationalized Bank
furnished his report of enquiry dated 22nd May, 1999 to the
disciplinary authority holding that Charge No.1 was not proved,
at the same time, held the Charge Nos. 2 to 7 proved against him.
In his report dated 22nd May, 1999, it has been noticed by the
enquiry officer that respondent delinquent stated in the course of
enquiry that he neither wants to say anything about the
prosecution documents nor he wants to ask any question to the
presenting officer and did not produce any documentary evidence
to substantiate his statement in defence regarding fictitious
credits in his account which was the allegation against him for
misappropriation of funds of the Bank and the fact remains that
all the allegations levelled against the respondent were supported
with the documentary evidence duly audited by the Bank.
3
6. The extract of the charges with the documents on which the
enquiry officer placed reliance and held the charge to be proved
after discussion in detail against the respondent are reproduced
hereunder:
Allegation/Charge No.1:
On 16.02.1994, saving bank account no.12215 of Shri I.S.
Verma (an account holder) was debited with Rs.1,09,600/ and
part amount of Rs.89,600/ was credited to his current account
No. P51 without the consent of account holder.
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX1
Debit voucher dated 16.02.1994 for Rs.1,09,600.00 relating to
savings bank account No.12215 of Shri I.S. Verma.
PEX2
Current account credit voucher dated 16.02.1994 for Rs.89,600
pertaining to current account No. P15 of Shri Srivastava (E.P.A).
PEX3
Ledger sheet of current account No. P51.
The Charge is not proved.
Allegation/Charge No.2:
On 25.03.1994, Shri Srivastava entered into a conspiracy with
some staff members at the Branch with a view in defraud the
bank and accordingly a fake debit was raised in branch clearing
general account through schedule No.4 for Rs.4,87,300 and this
amount was first posted in saving bank account No.7547 in
favor of Shri K.C. Miglani. This amount was subsequently
withdrawn in instalments on 25.03.1994 and 04.04.1994 and
amount of Rs.89,150 and Rs.10,000 were misappropriated by
him through credit to his current account No. P15 on the
aforesaid dates.
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To prove the above allegations/charges, the presenting officer
produced the following documents:
PEX4:
Branch clearing general account schedule No.4 dated
25.03.1994 for Rs.4,87,300.
PEX5:
Saving bank credit voucher dated 25.03.1994 for Rs.4,87,300
pertaining to saving bank account No.7547 of Shri K.C.
Minglani.
PEX6:
Debit voucher dated 25.03.1994 for Rs.2,36,550 pertaining to
savings bank account No.7547 of Shri K.C. Miglani.
PEX7:
Current account credit voucher dated 25.03.1994 for Rs.89,150
pertaining to current account No. P51 of Shri Ajay Kumar
Srivastava.
PEX8: Debit voucher dated 04.04.1994 for Rs.2,40,750
pertaining to saving bank account No.7547 of Shri K.C. MIglani.
PEX9
Current Account credit voucher dated 04.04.1994 for Rs.10600
pertaining to current account No. P51 of Shri Ajay Kumar
Srivastava, actually the voucher is for Rs.10000.
PEX10
Current account day book dated 04.04.1994.
PEX11
Ledger sheet of current account No. P15 of Shri Ajay Kumar
Shrivastava
The Charge is proved.
Allegation/Charge No.3:
On 22.09.1994, Shri Srivastava conspired with some staff
members at the branch with a view to defraud the bank and
accordingly a fake debit of Rs.5,00,000/ was raised in branch’s
saving bank a/c and out of the above an amount of
Rs.2,00,000/ was misappropriated by him through credit to his
current account No. P51.
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX12 – Saving Bank day book dated 22.09.1994
PEX13 – Current A/c day book dated 22.09.1994
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PEX14 – Ledger sheet of current a/c No. P51 pertaining to Shri
Ajay Kumar Srivastava.
The charge is proved.
Allegation/Charge No.4:
On 30.12.1994, Shri Srivastava entered into a conspiracy with
some staff members at the branch with a view to defraud the
Bank and accordingly a fake debit of Rs.5,30,000 was raised in
Branch’s current Account and out of the above amount an
amount of Rs.2,50,000.00 and Rs.25,000/ were
misappropriated by him through affording of credit to his
current Account No. P51 and Saving Bank A/c. No.11068
favoring Smt. Rashmi Srivastava (his wife).
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX15 – Debit voucher dated 30.12.1994 for Rs.5,30,000/
pertaining to current account ledger no.2.
PEX16 – Current A/c day book dated 30.12.1994
PEX17 – Saving bank credit voucher dated 30.12.1994
Rs.25,000/ pertaining to saving bank a/c no.11068 of Smt.
Rashmi Srivastava.
PEX18 – Ledger sheet of saving bank a/c no.11068 of Smt.
Rashmi Srivastava (page no.70/16).
The charge is proved.
Allegation/Charge No.5:
On 30.05.1995, Shri Srivastava fraudulently raised a fake debit
of Rs.2,30,000 in the S.B. A.C. No.11068 fvg. Smt. Rashmi
Srivastava (his wife) wherein no credit balance was available and
credited to his current account No. P51 with the above amount
with a view to defraud the Bank.
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX18 – Ledge sheet of saving bank a/c no.11068
PEX19 – Debit voucher dated 30.05.1995 for Rs.2,30,000/
pertaining to saving bank account no.11068 of Smt. Rashmi
Srivastava
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PEX20 – Current A/c credit voucher dated 30.05.1995
Rs.2,30,000/ pertaining to current a/c no. P51 of Smt.
Srivastava.
PEX21 – Saving bank daybook dated 30.05.1995
The charge is proved.
Allegation/Charge No.6:
On 31.05.1995, Shri Srivastava fraudulently raised a fake debit
of Rs.3,60,000 in the S.B. A/c No.11068 fvg. Smt. Rashmi
Srivastava (his wife) wherein no credit balance was available and
got its part amount of Rs.3,00,000 credited to his current
account no.P51 with a view to defraud the Bank.
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX22 – Current A/c credit vouchers dated 31.05.1995 for
Rs.3,00,000/ pertaining to current a/c no. P51 of Sri Ajay
Kumar Srivastava
PEX23 – Ledger sheet pertaining to saving bank a/c no.11068
PEX24 – Ledger sheet pertaining to current a/c no. P51.
PEX25 – Saving bank daybook dated 31.05.1995
PEX26 – Current a/c daybook dated 31.05.1995
The charge is proved.
Allegation/Charge No.7:
On 20.10.1993, Shri Srivastava borrowed Rs.35,000.00 from
Shri K.C. Miglani S.B. Account No.7547, an account holder at
the branch without the permission of the Bank.
To prove the above allegation/charge, the presenting officer
produced the following documents:
PEX25A – Photocopy of the ch. No.775157 dated 29.10.1993 for
Rs.35,000/
PEX26A – Saving bank credit voucher dated 29.10.1993 for
Rs.35,000/ pertaining to a/c no.7547
PEX27 – Debit voucher dated 20.10.1993 for Rs.35,000/
pertaining to saving bank a/c no.7547 of Shri K.C. Miglani.
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PEX28 – Current a/c credit vouchers dated 20.10.1993 for
Rs.35,000/ pertaining to current a/c no. P51 of Shri Ajay
Kumar Srivastava.
The charge is proved.
7. After copy of the detailed report of enquiry was made
available, the disciplinary authority took pains to revisit the
report of enquiry and while concurring with the finding of fact in
reference to Charge Nos.27 proved by the enquiry officer
disagreed with the finding recorded by the enquiry officer as of
charge no. 1 and assigning his reasons of disagreement held the
Charge No.1 to be proved and served the copy of enquiry report
dated 29th June, 1999 along with his finding of disagreement(for
charge no. 1) with the prima facie opinion based on the record of
enquiry to the respondent delinquent calling for his written
explanation.
8. The reply was submitted by the respondent in reference to
communication made by the disciplinary authority dated 29th
June, 1999 raising objection to the note of disagreement which
was recorded by the disciplinary authority as of Charge no. 1, at
the same time, in reference to other Charge Nos. 2 to 7 which
were held to be proved and prima facie accepted by the
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disciplinary authority, no specific objection was raised of any
prejudice being caused during the course of enquiry or defence in
rebuttal not been considered by the enquiry officer or of any
breach of the procedure prescribed in holding disciplinary
enquiry or violation of the principles of natural justice, raised
vague objections of general in nature without supporting any
documentary/oral evidence and one of the objection of the
respondent delinquent was that there was no requirement to hold
a disciplinary enquiry when a criminal case was instituted and
pending trial/investigation by the CBI and the conclusion of
departmental enquiry without awaiting the outcome of the
investigation/trial instituted against him in a pending criminal
case, has caused great prejudice to him.
9. Despite no specific objection being raised by the respondent
delinquent in reply to the showcause notice, still the disciplinary
authority revisited the record of enquiry including the enquiry
report, the explanation furnished by the respondent while
affirming the finding by the enquiry officer in its report, confirmed
its primafacie opinion which he has expressed in his
communication dated 29th June, 1999 and in terms of Para
9
521(5)(a) of the Sastry Award read with Para 18, 28 of the Desai
Award as modified by the 12th Bipartite Settlement dated 14th
February, 1995 between the State Bank of India and All India
State Bank of India Staff Federation, confirmed the penalty of
dismissal from service by its order dated 24th July, 1999.
10. The respondent preferred departmental appeal against his
dismissal from service. A bare perusal of the appeal preferred by
the respondent would indicate that it was just a reflection of the
general objection raised in reply to the showcause notice with no
specific averment in the appeal as to what was the procedural
error being committed by the enquiry officer in holding
disciplinary enquiry or of any violation of the principles of natural
justice or any prejudice being caused to him of a kind during the
course of enquiry or the action being bias or malafide initiated for
certain ulterior reasons if any, and no specific objection was
raised in reference to the charge nos. 27 stands proved against
him other than general objections which are vague and
ambiguous without any foundation.
11. The departmental appeal was examined by the appellate
authority and taking note of the record of enquiry, the appellate
10
authority noticed the alleged objections raised by the respondent
being so vague with no supporting foundation as reflected from
para 2 of the order of the appellate authority and after going
through record of enquiry and taking note of the nature of
allegations levelled by the respondent delinquent in his appeal,
the appellate authority assigned reasons in its order as reflected
from para 3(i) to (viii) and finally holding the appeal having no
merit and the punishment being commensurate to the charges
levelled against him, confirmed the punishment of dismissal
which was the subject matter of challenge in a writ petition before
the High Court of Allahabad filed at the instance of the
respondent delinquent.
12. The learned Single Judge of the High Court although has
passed a detailed judgment but the focus was throughout on
charge no.1 which was not found to be proved by the enquiry
officer in his report but the disciplinary authority recorded its
note of disagreement which according to the learned Single Judge
of the High Court has caused great prejudice and that apart, the
disciplinary/appellate authority has passed a nonspeaking order
which is in violation of the principles of natural justice and the
11
view expressed by the learned Single Judge came to be affirmed
by the Division Bench of the High Court by its impugned
judgment dated 13th September, 2018, which is the subject
matter of challenge before us.
13. During the course of arguments, it was brought to our
notice that in the criminal case instituted against the respondent
for offences under Sections 420, 467, 468, 471 IPC read with
Section 120B IPC and Section 13(2) read with Section 13(1)(d) of
Prevention of Corruption Act, 1988, the respondent employee was
held guilty and convicted by the learned Court of Special Judge,
CBI Court No. 1, Lucknow, by a judgment dated 31st May, 2019
and sentenced to ten year rigorous imprisonment with fine and in
default to undergo imprisonment of three months.
14. Learned counsel for the appellants submits that fair
opportunity of hearing was afforded to the respondent delinquent
in the course of enquiry and it was never the case of the
respondent that either the procedure prescribed under the
disciplinary rules have not been followed or the enquiry was held
by the authority who was not competent under law or the
findings or conclusions which have been arrived at by the enquiry
12
Officer in his report and confirmed by the disciplinary authority
are not supported by the evidence on record or there was a
violation of the principles of natural justice. In the absence
whereof, the plea raised by the respondent holding that the
disciplinary authority has passed a nonspeaking order without
application of mind lacks merit and is not substantiated from the
material on record.
15. To the contrary, the Enquiry Officer in his detailed report
recorded cogent reasons in holding the Charge nos. 27 proved
against the delinquent employee. The disciplinary authority while
expressing its prima facie opinion and after the copy of the
enquiry report along with the tentative view of the disciplinary
authority being served and affording a reasonable opportunity of
hearing to the respondent and having taken note of his written
reply into consideration, has dealt with so called alleged
objections raised, confirmed its tentative view expressed in
upholding penalty of dismissal from service after assigning
reasons supported by the documents on record. In the given
circumstances, the order of the learned Single Judge confirmed in
13
LPA by the Division Bench of the High Court is unsustainable in
law.
16. Learned counsel further submits that so far as Charge no. 1
is concerned, it is true that the enquiry officer has not found
charge no. 1 proved but the disciplinary authority has recorded
its reasons for disagreement while expressing a prima facie
opinion, a copy of the note of disagreement recorded of charge no.
1 along with the report of enquiry was served on the delinquent
employee, no justification was tendered by the delinquent
respondent in his written reply to the note of disagreement
recorded by the disciplinary authority. Thus, a fair opportunity
was afforded to him and taking assistance of the Constitution
Bench Judgment of this Court in State of Orissa and Others
Vs. Bidyabhushan Mohapatra1
which was further considered by
this Court in P.D. Agrawal Vs. State Bank of India and
Others2
, learned counsel submitted that the order of dismissal
based on the finding of Charge nos. 27, which were proved by
the enquiry officer and confirmed by the disciplinary/appellate
authority holds the respondent delinquent guilty of grave
1 AIR 1963 SC 779
2 2006(8) SCC 776
14
delinquency in upholding the penalty of dismissal and
interference in the order of penalty inflicted upon the respondent
delinquent by the High Court was not justified and needs
interference of this Court.
17. Per contra, learned counsel for the respondent while
supporting the impugned judgment submits that the disciplinary
authority reiterated the finding recorded by the enquiry officer in
his report and failed to examine the record of enquiry
independently and rejected the written objections raised by the
respondent cursorily and inflicted penalty upon him of dismissal
from service by passing a nonspeaking order without due
application of mind has been rightly interfered by the High Court
in the impugned judgment.
18. Learned counsel further submits that when the enquiry
officer has not found charge no. 1 proved and the disciplinary
authority disagreed with the finding recorded by the enquiry
officer in his report, should have served in the first place, a note
of disagreement, calling for his explanation and only thereafter it
was open for him to examine the record of enquiry independently
in taking its decision in accordance with law and the procedure
15
which was adopted by the disciplinary authority in holding the
respondent guilty in reference to Charge no. 1 was not only a
procedural error but is a great prejudice being caused to the
respondent and such defect could not have been cured by the
postdecisional hearing, which has been rightly upheld by the
High Court in the impugned judgment and needs no interference
by this Court.
19. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
20. At the outset, it may be noted that the enquiry officer has
noticed in his enquiry report that the respondent delinquent
neither produced any document nor witness in selfdefence. At
the same time, he never requested to allow him to defend him by
a representative of his choice. He further stated during the
course of enquiry that he neither wanted to say anything about
the prosecution documents nor he wanted to ask any question to
the presenting officer. Taking note of the record of enquiry
including the documents produced by the presenting officer, brief
of the presenting officer, defence and the submission made by the
respondent employee, the enquiry officer examined each of the
16
charge nos. 1 to 7 and after detailed analysis, recorded his
finding in reference to each charge separately and found charge
no. 1 not proved, at the same time charges nos. 27 were proved
based on the documentary evidence placed on record.
21. The disciplinary authority, after the report of enquiry was
furnished by the enquiry officer, took pains to revisit the record of
enquiry including chargesheet, reply to the chargesheet, enquiry
proceedings, findings of the enquiry officer dated 22nd May, 1999,
brief of the presenting officer, brief of the defence (respondent
delinquent) and further noticing 28 documents which were
exhibited PEX1 to PEX28 relied by the presenting officer and
taking note of the written submissions made by the respondent
employee, after due application of mind recorded its finding in
upholding the finding of fact recorded by the enquiry officer in his
report including the note of disagreement in reference to charge
no. 1 holding to be proved. The detailed reasons assigned in
confirming the order of penalty by its order dated 24th July, 1999
are as under:
“O R D E R
Staff: AWARD
SRI AJAY KUMAR SRIVASTAVA, CLERK
17
DISCIPLINARY ACTION
Placed before me are the submissions/show cause
notice dated the 15th July, 1999 of Shri A.K. Srivastava,
CashiercumClerk, under suspension, presently posted at
Daryaganj branch in respect of the Disciplinary Authority’s
tentative order dated 29.6.1999 wherein it was decided to
dismiss him without notice for his gross misconduct
relating to the fraudulent transactions perpetrated at
Mumfordganj branch due to which the bank has suffered
substantive loss in addition to loss of public image. It was
also decided that the period spent by Shri Srivastava as
suspended will be treated as such and no salary and
allowance, except the subsistence allowance already paid,
will be payable to him. The above order was passed against
him on the charges contained in the chargesheet dated
11.4.1996 and he was given an opportunity to make
submissions, if any, against the above punishment within 7
days of its receipt, extended to 15 days on his request,
failing which it would be deemed that he has nothing to
submit in this regard and final order will be passed without
any further reference to him.
2. Shri A.K. Srivastava has submitted that it is highly
illegal to have passed the tentative order of dismissal dated
29.6.1999 on the basis of the findings of the Enquiry Officer
without seeking his comments thereon. In his view, the
report of the Enquiry Officer must have been forwarded to
him for seeking his submissions, if any, which has not been
done. No such procedure is laid down followed in the bank
to forward the enquiry report to the charged employees
before finalization of the proposed punishment. The
procedure in this regard has been followed by enquiry
report and related documents have been forwarded to him
along with the tentative order to enable him to submit his
defence as to why the proposed punishment should not be
imposed on him as per the system and procedure in the
bank.
3. His allegation that prosecution documents had not been
given to him earlier which deprived him of the reasonable
opportunity of proving himself not guilty as not based on
facts as all the documents had been made available to him
for perusal/comments during the enquiry proceedings. The
copies of the enquiry proceedings had been given to him on
the same day on the conclusion of the day’s proceedings
and the allegation has no substance. On the perusal of the
page 16 and 17 of the enquiry proceedings, it is evident that
18
the Enquiry Officer had asked Shri Srivastava whether he
wants to say anything regarding the prosecution documents
to which he had replied in the negative, he had also stated
that he will submit his defence brief within a week, for the
receipt of the prosecution brief. Likewise the Enquiry
Officer has already clarified on the points raised by Shri
Srivastava in his letter dated 10.11.1998 which has been
found by myselfexplicit and satisfactory.
4. The other points raised by Shri Srivastava in his
submission dated 15.7.1999 sent to the Disciplinary
Authority as ‘show cause notice’ are found irrelevant after
close scrutiny. The enquiry started on 2.11.1997 and Shri
Srivastava neither asked any document not desired to
produce any witnesses/defence evidence, during the
enquiry proceeding till its conclusion on 12.5.1998.
However, when he left that the prosecution has produced
enough evidences as per enquiry proceedings which will
prove his involvement in the conspiracy to defraud the
bank, he started levelling the baseless allegations against
the bank to delay the decision against him.
5. I have perused all the relevant documents again
including the enquiry report, his letters dated 10.11.1998
and 15.12.1998 and do not find any substance for reopening the enquiry as Shri Srivastava had already been
given ample opportunity to defend himself. The proposed
punishment is commensurate to the charges levelled and
proved against him as discussed in detail in tentative order.
I, therefore, confirm my tentative order dated 29.6.1999 to
dismiss Shri Ajay Kumar Srivastava without notice in terms
of para 521(5)(a) of the Sastry Award read with para 18,28
of the Desai Award as modified by the 12th Bipartite
Settlement dated 14.2.1995 made between State Bank of
India and All India State Bank of India Staff Federation. I
also order that the period spent by Shri Srivastava as
suspended be treated as such and no salary and
allowances, except the subsistence allowance already paid,
will be payable to him.
I order accordingly.
Sd/
ASSTT. GENERAL MANAGER(IV)
DISCIPLINARY AUTHORITY,
DATED: 24th July, 1999”
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22. The departmental appeal which was preferred by the
respondent employee was revisited by the appellate authority and
taking note of the objections, all have been separately dealt with
by the appellate authority in its order dated 15th November, 1999,
the relevant portion of which is extracted as under:
“3. In order to examine the aforesaid points by the
appellant, I have gone through the chargesheets, reply of
chargesheets submitted by the charged employee, enquiry
proceedings, findings of the Enquiry Officer, tentative order
dated the 29th June, 1999, final order dated the 24th July,
1999, his service sheet and other relevant records of the
case. My views are as under:
i) Almost all points raised by Shri Srivastava, as
above, have been suitably replied in the Enquiry
Officer’s reply and in the final order dated the 24th
July, 1999. The clarification given are quite
reasonable and I am satisfied with the same. He
was given full opportunity to defend himself and
there was no ground for reopening the enquiry.
The charges contained in the chargesheet were
not vague, as alleged by him, and all the charges,
except one, have been proved in the enquiry.
ii) The contention of Shri Srivastava that the
Enquiry Officer should be above the rank of the
Disciplinary Authority, the officer who has issued
the chargesheet, is not correct. The Disciplinary
Authority should be above the rank of the Enquiry
Officer who has been appointed by him for fact
finding on his behalf.
iii) There is no bar on initiation of the domestic
enquiries, if the police/investigating agency do not
submit their reports within a reasonable time and
Supreme Court has given several judgments in
this regard.
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iv) The Disciplinary Authority reviews the
pending suspension cases and can order
reinstatement of any suspended employee after
the review. Two employees had been reinstated as
the charges against them were not serious
enough.
v) The charges of double standards and
discriminatory treatment are not correct as
disciplinary proceedings have been initiated
against all the erring employees/officers and the
penalties have been imposed on the basis of the
Enquiry Officer’s report and due consideration of
the malafide/bonafide conduct of the employees.
Supplementary chargesheets have already been
served on some of the employees against whom
penalties have been imposed on the basis of
earlier chargesheets.
vi) The payment of suspension period has not
been made, in terms of their service rules, to any
chargesheeted employee and none has been
discriminated.
vii) The appellant has already accepted that he
prepared to take vouchers without any real
cash/transfer transaction for regularizing his
overdrawn current account and deposit of
fraudulently drawn amount partly cannot absolve
him of perpetration of fraudulent transactions and
none had promised him penalty short of
dismissal.
viii) Nonreply of his letters/representations,
meant for delay in the domestic enquiry and
resultant punishment, cannot be treated as
violation of natural justice. The enquiry started
on 30.11.1997 and he defended his case himself
while other charged employees opted for defence
representative. It appears that he could not get
any representative to defend his case in view of
serious charges against him. He neither asked
21
any document nor desired to produce any
witness/defence evidence during the enquiry
proceedings till its conclusion on 12.5.1998.
When he felt that the prosecution has produced
enough evidences as per enquiry proceedings
which will prove his involvement in the conspiracy
to defraud the bank, he started levelling the
baseless allegations against the bank to delay the
decision against him.
4. Thus, the points raised by Sri Srivastava in his appeal
have no merit. The punishment ordered by the Disciplinary
Authority is commensurate to the charges levelled against
him and the contention of the appellant does not hold good
in view of the charges proved otherwise as discussed in the
preceding paragraphs. After careful consideration of the
matter in its entirety, I am of the view that the Disciplinary
Authority is fully justified in awarding the punishment of
dismissal without notice and treating the period spent by
Shri Srivastava as suspended as such and no payment of
salary and allowances, except the subsistence allowance
already paid, to him. I, therefore, hold the order of the
Disciplinary Authority.
I order accordingly.”
23. 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
32 or Article 136 of the Constitution of India is 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 been earlier examined by this Court in State
22
of Tamil Nadu Vs. T.V. Venugopalan3
and later in Government
of T.N. and Another Vs. A. Rajapandian4 and further examined
by the three Judge Bench of this Court in B.C. Chaturvedi Vs.
Union of India and Others5
wherein it has been held as under:
“13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary enquiry, the strict
proof of legal evidence and findings on that evidence are not
relevant. Adequacy of evidence or reliability of evidence
cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR
718] this Court held at p. 728 that if the conclusion, upon
consideration of the evidence reached by the disciplinary
authority, is perverse or suffers from patent error on the
face of the record or based on no evidence at all, a writ of
certiorari could be issued.”
24. It has been consistently followed in the later decision of this
Court in Himachal Pradesh State Electricity Board Limited
Vs. Mahesh Dahiya6
and recently by the three Judge Bench of
this Court in Pravin Kumar Vs. Union of India and Others7
.
25. It is thus settled that the power of judicial review, of the
Constitutional Courts, is an evaluation of the decisionmaking
3 1994(6) SCC 302
4 1995(1) SCC 216
5 1995(6) SCC 749
6 2017(1) SCC 768
7 2020(9) SCC 471
23
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 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 if 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 is perverse or
suffers 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.
26. When the disciplinary enquiry is conducted for the alleged
misconduct against the public servant, the Court is to examine
and determine: (i) whether the enquiry was held by the competent
authority; (ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some
24
evidence and authority has power and jurisdiction to reach
finding of fact or conclusion.
27. It is well settled that where the enquiry officer is not the
disciplinary authority, on receiving the report of enquiry, the
disciplinary authority may or may not agree with the findings
recorded by the former, in case of disagreement, the disciplinary
authority has to record the reasons for disagreement and after
affording an opportunity of hearing to the delinquent may record
his own findings if the evidence available on record be sufficient
for such exercise or else to remit the case to the enquiry officer for
further enquiry.
28. It is true that strict rules of evidence are not applicable to
departmental enquiry proceedings. However, the only
requirement of law is that the allegation against the delinquent
must be established by such evidence acting upon which a
reasonable person acting reasonably and with objectivity may
arrive at a finding upholding the gravity of the charge against the
delinquent employee. It is true that mere conjecture or surmises
cannot sustain the finding of guilt even in the departmental
enquiry proceedings.
25
29. 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 malafides 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 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.
30. In the case on hand, the chargesheet was served upon the
respondent delinquent for misappropriation of public funds by
affording fake credits in his various accounts maintained at the
branch where he was serving (Mumfordganj Branch) during the
relevant period. In all, 7 charges were levelled against him of
grave misconduct which he had committed in discharge of his
official duty and after affording an opportunity of hearing to the
respondent delinquent and due compliance of the principles of
natural justice, the enquiry officer in his report while dealing with
the preliminary objections raised by the respondent delinquent
specifically indicated that the details of enquiry report contained
26
22 pages along with documents produced by the presenting
officer marked as PEX1 to PEX28 to establish the
allegations/charges levelled against the respondent delinquent
who neither produced any document nor witness in his defence.
It was further indicated that the respondent stated in the course
of enquiry that he neither wants to say anything about the
prosecution document nor he wants to ask any question to the
presenting officer and never requested to seek permission to
defend the representative of his choice.
31. After affording an opportunity of hearing at the conclusion of
the departmental enquiry, along with the written note submitted
by the presenting officer and by the respondent delinquent, the
enquiry officer marshalled the record of enquiry and based on the
documentary evidence produced by the presenting officer in
reference to each charge recorded a finding in holding charge no.1
not proved and charges nos. 27 stood proved against the
delinquent respondent.
32. It was later revisited by the disciplinary authority and apart
from the note of disagreement in reference to charge no. 1, the
disciplinary authority accepted the finding of fact recorded by the
27
enquiry officer in his report for charge nos. 2 to 7 and with its
prima facie opinion, called upon the respondent to submit his
explanation and after affording an opportunity of hearing and
dealing with the objections raised by the respondent in his
written reply expressed its brief reasons while upholding the
finding recorded by the enquiry officer in his report and
confirmed its opinion of inflicting penalty of dismissal from
service by order dated 24th July, 1999 and the appellate authority
also later revisited on the appeal being preferred and after
assigning reasons confirmed the finding of fact in upholding the
order of penalty inflicted upon the respondent delinquent.
33. The submission which persuaded the High Court in the
impugned judgment is basically for two reasons. Firstly, before
the finding of disagreement being recorded by the disciplinary
authority in reference to Charge no. 1, fair opportunity of hearing
was not afforded to the respondent delinquent and that has
caused prejudice to him. Secondly, the disciplinary
authority/appellate authority has not examined the record of
disciplinary enquiry independently and passed a nonspeaking
order without due application of mind and this what prevailed
28
upon the High Court in the impugned judgment in setting aside
the penalty inflicted upon the respondent delinquent.
34. The submission which was made in regard to the note of
disagreement not being served upon the respondent delinquent as
to Charge no. 1 is concerned, this Court do find substance to
hold that the disciplinary authority on receiving the report of
enquiry, if was not in agreement with the finding recorded by the
enquiry officer, was under an obligation to record its reasons of
disagreement and call upon the delinquent for his explanation in
the first place before recording his finding of guilt and
indisputedly the procedure as prescribed by law was not followed
and that has caused prejudice to the respondent and indeed it
was in violation of the principles of natural justice. We are of the
considered view that so far as the finding of guilt recorded by the
disciplinary authority in reference to Charge No. 1 is concerned,
that could not be held to be justified in holding him guilty.
35. But this may not detain us any further for the reason that
Charge no. 1 in reference to which the finding recorded by the
enquiry officer has been overturned by the disciplinary authority
is severable from the other charges(Charge nos. 27) levelled
29
against the respondent which were found proved by the Enquiry
Officer and the finding of fact was confirmed by the
disciplinary/appellate authority after meeting out objections
raised by the respondent delinquent in his written brief furnished
at different stages.
36. If the order of dismissal was based on the findings of charge
no. 1 alone, it would have been possible for the Court to declare
the order of dismissal illegal but on the finding of guilt being
recorded by the Enquiry Officer in his report in reference to
charges nos.27 and confirmed by the disciplinary/appellate
authority was not liable to be interfered and those findings
established the guilt of grave delinquency which, in our view, was
an apparent error being committed by the High Court while
interfering with the order of penalty of dismissal inflicted upon
the respondent employee.
37. It is supported by the judgment of the Constitution Bench of
this Court in State of Orissa and Others Vs. Bidyabhushan
Mohapatra (supra) wherein it has been observed as under:
“9. The High Court has held that there was evidence to
support the findings on heads (c) and (d) of Charge (1) and
on Charge (2). In respect of Charge 1(b) the respondent was
30
acquitted by the Tribunal and it did not fall to be
considered by the Governor. In respect of Charges 1(a) and
1(e) in the view of the High Court “the rules of natural
justice had not been observed”. The recommendation of the
Tribunal was undoubtedly founded on its findings on
Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court
was of the opinion that the findings on two of the heads
under Charge (1) could not be sustained, because in
arriving at the findings the Tribunal had violated rules of
natural justice. The High Court therefore directed that the
Government of the State of Orissa should decide whether
“on the basis of those charges, the punishment of dismissal
should be maintained or else whether a lesser punishment
would suffice”. It is not necessary for us to consider
whether the High Court was right in holding that the
findings of the Tribunal on Charges 1(a) and 1(e) were
vitiated for reasons set out by it, because in our judgment
the order of the High Court directing the Government to
reconsider the question of punishment cannot, for reasons
we will presently set out, be sustained. If the order of
dismissal was based on the findings on Charges 1(a) and
1(e) alone the Court would have jurisdiction to declare the
order of dismissal illegal but when the findings of the
Tribunal relating to the two out of five heads of the first
charge and the second charge was found not liable to be
interfered with by the High Court and those findings
established that the respondent was prima facie guilty of
grave delinquency, in our view the High Court had no power
to direct the Governor of Orissa to reconsider the order of
dismissal….”
38. This was further considered by this Court in Binny Ltd. Vs.
Workmen8
as under:
“..It was urged that the Court should not have assumed
that the General Manager would have inflicted the
punishment of dismissal solely on the basis of the second
charge and consequently the punishment should not be
sustained if it was held that one of the two charges on the
basis of which it was imposed was unsustainable. This was
rejected following the decision in State of
8 1972(3) SCC 806
31
Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779],
where it was said that if an order in an enquiry under
Article 311 can be supported on any finding as substantial
misdemeanour for which punishment imposed can lawfully
be given, it is not for the Court to consider whether that
ground alone would have weighed with the authority in
imposing the punishment in question. In our view that
principle can have no application to the facts of this case.
Although the enquiry officer found in fact that the
respondent had behaved insolently towards the Warehouse
Master, he did not come to the conclusion that this act of
indiscipline on a solitary occasion was sufficient to warrant
an order of dismissal….”
39. Yet again, in Sawarn Singh and Another Vs. State of
Punjab and Others9
, this Court held:
19. In view of this, the deficiency or reference to some
irrelevant matters in the order of the Commissioner, had
not prejudiced the decision of the case on merits either at
the appellate or revisional stage. There is authority for the
proposition that where the order of a domestic tribunal
makes reference to several grounds, some relevant and
existent, and others irrelevant and nonexistent, the order
will be sustained if the Court is satisfied that the authority
would have passed the order on the basis of the relevant
and existing grounds, and the exclusion of irrelevant or
nonexisting grounds could not have affected the ultimate
decision [see State of Orissa v. Bidyabhushan
Mohapatra [AIR 1963 SC 779].
40. The Constitution Bench has clearly laid down that even after
the charges which have been proved, justify imposition of penalty,
the Court may not exercise its power of judicial review.
9 AIR 1976 SC 232
32
41. So far as the submission which has prevailed upon the High
Court holding that the order passed by the disciplinary/appellate
authority was a nonspeaking order passed with nonapplication
of mind, in our considered view, is not factually supported by the
material available on record.
42. In the case on hand, the disciplinary/appellate authority
was not supposed to pass a judgment however while passing the
order dated 24th July, 1999, the disciplinary authority had taken
note of the record of enquiry, including selfcontained enquiry
report dated 22nd May, 1999 and his prima facie opinion dated
29th June, 1999 which was made available to the respondent
employee and after affording reasonable opportunity of hearing
and meeting out the written objections raised by the delinquent,
expressed its brief reasons in upholding the finding of guilt and
penalty of dismissal by its order dated 24th July, 1999. That
apart, the appeal preferred by the respondent delinquent was
examined by the appellate
authority as it reveals under para 3(i) to (viii) in upholding the
finding of guilt recorded by the enquiry officer in his report
dismissing the respondent employee from service, rejected by
33
order dated 15th November, 1999. After detailed discussion, we
are unable to accept the finding recorded by the High Court
under its impugned judgment setting aside the orders passed by
the disciplinary/appellate authority which deserves to be set
aside.
43. Before we conclude, we need to emphasize that in banking
business absolute devotion, integrity and honesty is a sine qua
non for every bank employee. It requires the employee to
maintain good conduct and discipline and he deals with money of
the depositors and the customers and if it is not observed, the
confidence of the public/depositors would be impaired. It is for
this additional reason, we are of the opinion that the High Court
has committed an apparent error in setting aside the order of
dismissal of the respondent dated 24th July, 1999 confirmed in
departmental appeal by order dated 15th November, 1999.
44. Consequently, the appeals deserve to succeed and are
accordingly allowed and the judgment of the High Court
impugned dated 13th September, 2018 is hereby set aside. No
costs.
34
45. Pending application(s), if any, stand disposed of.
…………….………………………….J.
(L. NAGESWARA RAO)
……………..…………………………J.
(HEMANT GUPTA)
……………………………………….J.
(AJAY RASTOGI)
NEW DELHI
JANUARY 05, 2021
35
