REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7431 OF 2008

(Arising out of SLP (C) No. 14429 of 2007)

ROOP SINGH NEGI … APPELLANT

Versus

PUNJAB NATIONAL BANK & ORS. … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Appellant was working as a peon in the respondent – Bank.

On or about 24.11.1993, a complaint was lodged by the Manager of

the Bank alleging that some drafts which were presented for encashment

by M/s Anil Trader and some other persons and purported to have been

issued from the Mall Road Branch of the Bank had in fact not been issued

therefrom.

A First Information Report (for short, “FIR”) under Section

380/120B of the Indian Penal Code was registered. The investigation of

the said case was assigned to one Shri Janardhan Singh, Senior Inspector.

He submitted a report on 11.12.1993, inter alia, opining that the integrity

of the appellant who had been transferred to Rampur, Shimla was

doubtful. It was concluded:

“In view of the facts stated above we are of the

view that both the joint custodian i.e. Shri H.C.

Grover – Manager, presently posted at BO

Chandni Chowk, Delhi and Shri P.C. Gupta –

AM are responsible for the loss of the drawing

book since either of the two have remained one

of the custodians from 1.6.93 to 24.8.93. The

loss of drawing book could have been avoided

had they taken due care and precaution.

Further, Shri Sharad Narain, Sr. Manager is also

responsible as he has failed to ensure

compliance of laid down instructions in respect

of monthly checking of security forms and also

for non-submission of M.C. after 31.5.93.”

In the said report, various procedural lapses on the part of some

officers of the Bank were also pointed out.

3.After five years of the said incidence, a disciplinary proceeding

was initiated against the appellant stating that during the period

18.11.1991 and 9.10.1993, he had taken away one blank draft issue book

bearing No. 626401 to 626425. A show-cause notice was issued. Cause

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was shown by him. He was found guilty by the Enquiry Officer. In the

said proceeding, reliance was placed on the purported confession of the

appellant before the police authorities in the year 1993. It was marked as

Exhibit PE-3.

4.Indisputably, the forms and other important books and documents

belonging to a Bank never remain in the custody of a peon. It was

accepted that documentary evidences were collected by the police

officers. Those documents were simply produced; they were not proved.

The purported confession by the appellant was also not proved. Only

because the said confession was made before the police authorities, the

enquiry officer inferred on the basis thereof that the appellant had

connection with those persons who had used those bank drafts, stating:

“….Therefore, the undersigned is of the opinion

that PE-4 proves that Shri Roop Singh Negi has

connections with the said culprits. On

examination of witness MDW-1 on 20/7/99, he

has said that according to the statement of Shri

Roop Singh Negi, he has confessed that on the

instructions/saying of Rajbir, Devinder alias

Mental, Asif and Brahmpal, who are the

residents of trans-Yamuna area he had stolen the

draft book…..”

It was, inter alia, concluded:

“In view of the above details/proceedings it is

proved that the delinquent employee has

admitted that drafts being no. QWA-626401 to

626425 have been stolen from Branch office

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Mall Road Delhi Branch vide page no. 25057

and has caused financial loss to the bank but he

has not admitted that he has stolen the said

drafts.

As the main charge on the delinquent employee

is of stealing the draft books and other

documents, therefore, in such matters direct

proof/evidence are not available generally and

the conclusion has been arrived at on the basis

of assumptions….”

Assumption of certain factual foundation was drawn on the basis of

the documents supplied by the police as would appear from the following

findings of the Enquiry Officer.

“1.Efforts were made to through Lost Draft

book no. 626404 dated 6.9.93 for Rs. 6,90,000/-

was prepared the fake draft and encashed

through OBC Farukabad prepared through PNB

Branch Farukabad and again draft drawn on

OBC Delhi and encashed through CBI Narain

branch.

2.From this draft no. 626402 dated 24.8.93

for Rs. 5,40,000/- made in the name of M/s Ajay

Sales and encashed from Farukabad Branch.

3.From the pages, draft no. 626415 dated

27.9.93 for Rs. 7,35,000/- and draft no.

626423dated 1.10.95 for Rs. 8,65,000/- drawn

on branch Saharanpur and encashed on branch

Khalsi Lines Saharanpur.

4.Arresting of culprits namely K.K. Gupta,

Rajbir, Ashok Kumar, Ravinder Pal Singh,

Kante Gupta and Harvinder alias Billa with the

remaining pages of the draft book by the Thane

Mysori (Ghaziabad) police.

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5.Stealing of draft book bearing no. 626401

to 626425 and other documents from branch

Mall Road Delhi.

6.First draft was issued on 24.8.93 from the

stolen draft book which fact came to the

knowledge of Mall Road Delhi Branch from the

Central Bank of India Branch Officer.

7.Before 9.10.1993 Shri Roop Singh Negi

was posted in the Mall Road Delhi Branch.

8.Bank Security Form Department is out of

reach of non-bank employees/outsiders.”

It was purported to have been found:

“1.Stealing of drawing book and specimen

signatures of officers happened before 24.8.93.

2.The factum of stealing the drafts came to

the knowledge on 24.11.93 while the same was

done on 24.8.93. Draft book has been stolen

from Security Form Department in such a

manner which fact has come to the knowledge

very late. Possibly this draft book has been

taken away available at the last serial nos. of the

draft books.

3.From the whole embezzlement it is clear

that the gang had full knowledge of the banking

working or any employee was involved in this

embezzlement/fraud.

4.That fraud has been committed so

cleverly so that there is no direct proof or

evidence available.”

Conclusion was drawn up on the basis of the above facts by the

Enquiry Officer as under:

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“That Shri Roop Singh has direct or indirect

links with the culprits who were arrested by the

Thane Mysori (Ghaziabad) along with pages of

drafts and on the basis of whose statement Shri

Roop Singh Negi was arrested by the Delhi

Police on 9.12.93 from Rampur Bushahar

Himachal Pradesh and taken to Delhi. Having

links with the aforesaid accused, it is proved

that Shri Roop Singh Negi has stolen the draft

book no. 626401 to 626425 from the Security

Form Department.”

5.Before the disciplinary authority, the appellant contended that there

was no evidence against him. The attention of the disciplinary authority

was furthermore drawn to the fact that by an order dated 9.5.2000, the

Criminal Court passed an order of his discharge. Only charges under

Section 411 of the Indian Penal Code were framed against one Rajbir.

Neither the State nor the Bank preferred any revision petition

thereagainst. The same attained finality. The Regional Manager acting

as a disciplinary authority by an order dated 24.1.2001 without assigning

any reason and without considering the contentions raised by the

appellant including the fact that he had been discharged by the criminal

court, directed the appellant to be dismissed from services, stating:

“That I have again gone through the facts

carefully and I hold you responsible for gross

misconduct in terms of Bipartite Settlement

clause 19.5 (amended from time to time) and

there is no justification to reduce the proposed

punishment. Therefore, in terms of the Bipartite

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Settlement clause 19.6, I confirm the proposed

punishment “Dismissal from Bank Service”. As

you are under suspension, therefore, I order that

in terms of Bipartite Settlement Provisions you

will be eligible for subsistence allowance only

till your dismissal from bank service.”

6.Appellant made a representation against the said order before the

appellate authority. The appellate authority noticing his contentions in

details. Inter alia, on the premise that appellant had been given an

opportunity of personal hearing, the appeal was dismissed, opining:

“In view of the above, the submissions made by

the appellant in his appeal dated 23.02.2001 and

his verbal submissions made during personal

hearing are devoid of merits. As such I find no

reasons to interfere or alter the order of

Disciplinary Authority.

Thus keeping in view the nature and gravity of

the proven charges, punishment of “Dismissal

from Bank Service”, imposed upon Shri Negi by

Disciplinary Authority vide its order dated

24.01.2001 is hereby confirmed and appeal of

Shri Negi is rejected.”

7.The appellate authority also did not apply his mind to the

contentions raised by the appellant; no reason was assigned in support of

his conclusion.

On what evidence, the appellant was found guilty was not stated.

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8.Aggrieved by and dissatisfied with the said orders, the appellant

filed a Writ Petition. The same by reason of the impugned judgment has

been dismissed, stating:

“…The writ jurisdiction can be exercised by this

court only in exceptional circumstances which

have not been mentioned by the petitioner in the

petition. However, once the petition was

admitted for hearing in exercise of the writ

jurisdiction after a lapse of so many years since

the writ petition was admitted in the year 2001,

it may not be appropriate for this Court to pass

an order now that the petitioner should make out

a case for reference to the industrial tribunal

and therefore the petition filed by the petitioner

is being considered.”

9.The High Court noticed the decision of this Court in Kuldeep

Singh vs. Commissioner of Police & ors. [(1999) 2 SCC 10], Narinder

Mohan Arya vs. United India Insurance Co. Ltd. & ors. [(2006) 4 SCC

713] and Bhagwati Prasad Dubey vs. The Food Corporation of India [AIR

1988 SC 434] whereupon reliance has been placed by the learned counsel

appearing on behalf of the appellant, and held:

“ All the aforesaid decisions are not

directly attracted to the present facts though the

law laid down applies to the present facts. But

in the facts of the case it is not a case of no

evidence but only in regard to the conclusions

drawn based upon the evidence which

reappraisal cannot be done by this Court.

Coming to the arguments that there can

be no reappraisal of the evidence by this Court

once the findings have been given by the

Enquiry Officer considering the evidence, it is

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not the case of the petitioner that there was no

evidence at all as against him led before the

Enquiry Officer, but the dispute is in regard to

the conclusion drawn by the enquiry Officer

based upon evidence. According to law even if

two views are possible to be drawn against the

petitioner on the basis of the Enquiry Report

one which has been drawn by the Enquiry

Officer cannot be held to be wrong taking the

plea that the second view was also possible to

be drawn based upon evidence.

The decision of Hon’ble Apex Court in

Narinder Mohan Arya’s case (supra) clearly lays

down that the proceedings of departmental

enquiry report are quasi criminal in nature.

Therefore the guilt of the delinquent official is

not required to be proved beyond any

reasonable doubt as in a criminal case.

We have considered the report of the

Enquiry Officer and the penalty imposed by the

Bank is based upon evidence as such it is not

open to this Court to consider that some other

view was also possible and since it was not a

case of no evidence therefore there cannot be

reappraisal of evidence or draw its own

conclusion by this Court based upon evidence.

The findings recorded by the Enquiry Officer

and the punishment imposed by the respondent

Bank or its officers call for no interference by

this court and as such there is no merit in the

petition which is dismissed accordingly.”

10.Indisputably, a departmental proceeding is a quasi judicial

proceeding. The Enquiry Officer performs a quasi judicial function. The

charges leveled against the delinquent officer must be found to have been

proved. The enquiry officer has a duty to arrive at a finding upon taking

into consideration the materials brought on record by the parties. The

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purported evidence collected during investigation by the Investigating

Officer against all the accused by itself could not be treated to be

evidence in the disciplinary proceeding. No witness was examined to

prove the said documents. The management witnesses merely tendered

the documents and did not prove the contents thereof. Reliance, inter

alia, was placed by the Enquiry Officer on the FIR which could not have

been treated as evidence. We have noticed hereinbefore that the only

basic evidence whereupon reliance has been placed by the Enquiry

Officer was the purported confession made by the appellant before the

police. According to the appellant, he was forced to sign on the said

confession, as he was tortured in the police station. Appellant being an

employee of the bank, the said confession should have been proved.

Some evidence should have been brought on record to show that he had

indulged in stealing the bank draft book. Admittedly, there was no direct

evidence. Even there was no indirect evidence. The tenor of the report

demonstrates that the Enquiry Officer had made up his mind to find him

guilty as otherwise he would not have proceeded on the basis that the

offence was committed in such a manner that no evidence was left.

11.In Union of India vs. H.S. Goel [(1964) 4 SCR 718, it was held:

“….The two infirmities are separate and distinct

though, conceivably, in some cases, both may

be present. There may be cases of no evidence

even where the Government is acting bona fide;

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the said infirmity may also exist where the

Government is acting mala fide and in that case,

the conclusion of the Government not supported

by any evidence may be the result of mala fides,

but that does not mean that if it is proved that

there is no evidence to support the conclusion of

the Government, a writ of certiorari will not

issued without further proof of mala fides. That

is why we are not prepared to accept the learned

Attorney-General's argument that sine no mala

fides are alleged against the appellant in the

present case, no writ of certiorari can be issued

in favour of the respondent.

That takes us to the merits of the

respondent's contention that the conclusion of

the appellant that the third charged framed

against the respondent has been proved, is based

on no evidence. The learned Attorney-General

has stressed before us that in dealing with this

question, we ought to bear in mind the fact that

the appellant is acting with the determination to

root out corruption, and so, if it is shown that

the view taken by he appellant is a reasonably

possible view, this Court should not sit in

appeal over that decision and seek to decide

whether this Court would have taken the same

view or not. This contention is no doubt

absolutely sound. The only test which we can

legitimately apply in dealing with this part of

the respondents case is, is there any evidence on

which a finding can be made against the

respondent that charge No. 3 was proved against

him ? In exercising its jurisdiction under Art.

226 on such a plea, the High Court cannot

consider the question about the sufficiency or

adequacy of evidence in support of a particular

conclusion. That is a matter which is within the

competence of the authority which dealt with

the question; but the 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 charges in question is proved

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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. Applying this test,

we are inclined to hold that the respondent's

grievance is well-founded because, in our

opinion, the finding which is implicit in the

appellant's order dismissing the respondent that

charge number 3 is proved against him is based

on no evidence.

12.In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484],

this Court held:

17.The departmental proceeding is a quasi

judicial one. Although the provisions of the

Evidence Act are not applicable in the said

proceeding, principles of natural justice are

required to be complied with. The Court

exercising power of judicial review are entitled

to consider as to whether while inferring

commission of misconduct on the part of a

delinquent officer relevant piece of evidence has

been taken into consideration and irrelevant

facts have been excluded therefrom. Inference

on facts must be based on evidence which meet

the requirements of legal principles. The

Tribunal was, thus, entitled to arrive at its own

conclusion on the premise that the evidence

adduced by the department, even if it is taken on

its face value to be correct in its entirety, meet

the requirements of burden of proof, namely -

preponderance of probability. If on such

evidences, the test of the doctrine of

proportionality has not been satisfied, the

Tribunal was within its domain to interfere. We

must place on record that the doctrine of

unreasonableness is giving way to the doctrine

of proportionality.”

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13.In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors.

(supra), whereupon both the learned counsel relied upon, this Court held:

“26. In our opinion the learned Single Judge and

consequently the Division Bench of the High

Court did not pose unto themselves the correct

question. The matter can be viewed from two

angles. Despite limited jurisdiction a civil court,

it was entitled to interfere in a case where the

report of the Enquiry Officer is based on no

evidence. In a suit filed by a delinquent

employee in a civil court as also a writ court, in

the event the findings arrived at in the

departmental proceedings are questioned before

it should keep in mind the following: (1) the

enquiry officer is not permitted to collect any

material from outside sources during the

conduct of the enquiry. [See State of Assam and

Anr. v. Mahendra Kumar Das and Ors. [(1970)

1 SCC 709] (2) In a domestic enquiry fairness in

the procedure is a part of the principles of

natural justice [See Khem Chand v. Union of

India and Ors. (1958 SCR 1080) and State of

Uttar Pradesh v. Om Prakash Gupta (1969) 3

SCC 775]. (3) Exercise of discretionary power

involve two elements (i) Objective and (ii)

subjective and existence of the exercise of an

objective element is a condition precedent for

exercise of the subjective element. [See K.L.

Tripathi v. State of Bank of India and Ors.

(1984) 1 SCC 43]. (4) It is not possible to lay

down any rigid rules of the principles of natural

justice which depends on the facts and

circumstances of each case but the concept of

fair play in action is the basis. [See Sawai Singh

v. State of Rajasthan (1986) 3 SCC 454] (5) The

enquiry officer is not permitted to travel beyond

the charges and any punishment imposed on the

basis of a finding which was not the subject

matter of the charges is wholly illegal. [See

Director (Inspection & quality Control) Export

Inspection Council of India and Ors. v. Kalyan

Kumar Mitra and Ors. 1987 (2) Cal. LJ 344. (6)

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Suspicion or presumption cannot take the place

of proof even in a domestic enquiry. The writ

court is entitled to interfere with the findings of

the fact of any tribunal or authority in certain

circumstances. [See Central Bank of India Ltd.

v. Prakash Chand Jain (1969) 1 SCR 735,

Kuldeep Singh v. Commissioner of Police and

Ors. (1999) 2 SCC 10].”

The judgment and decree passed against the respondent therein had

attained finality.

In the said suit, the enquiry report in the disciplinary proceeding

was considered, the same was held to have been based on no evidence.

Appellant therein in the aforementioned situation filed a Writ Petition

questioning the validity of the disciplinary proceeding, the same was

dismissed. This Court held that when a crucial finding like forgery was

arrived at on an evidence which is non est in the eye of the law, the civil

court would have jurisdiction to interfere in the matter. This Court

emphasized that a finding can be arrived at by the Enquiry Officer if there

is some evidence on record. It was furthermore found that the order of

the appellate authority suffered from non application of mind. This Court

referred to its earlier decision in Capt. M. Paul Anthony v. Bharat Gold

Mines Ltd. [(1999) 3 SCC 679] to opine:

“41. We may not be understood to have laid

down a law that in all such circumstances the

decision of the civil court or the criminal court

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would be binding on the disciplinary authorities

as this Court in a large number of decisions

points point that the same would depend upon

other factors as well. See e.g. Krishnakali Tea

Estate v. Akhil Bharatiya Chah Mazdoor Sangh

and Anr. (2004) 8 SCC 200 and Manager,

Reserve Bank of India Bangalore v. S. Mani and

Ors. (2005) 5 SCC 100. Each case is, therefore,

required to be considered on its own facts.

42. It is equally well settled that the power of

judicial review would not be refused to be

exercised by the High Court, although despite it

would be lawful to do so. In Manager, Reserve

Bank of India Bangalore (supra) this Court

observed:

‘39. The findings of the learned

Tribunal, as noticed hereinbefore,

are wholly perverse. It apparently

posed unto itself wrong questions.

It placed onus of proof wrongly

upon the appellant. Its decision is

based upon irrelevant factors not

germane for the purpose of arriving

at a correct finding of fact. It has

also failed to take into

consideration the relevant factors.

A case for judicial review, thus,

was made out.”

14.In that case also, the learned single judge proceeded on the basis

that the disadvantages of an employer is that such acts are committed in

secrecy and in conspiracy with the person affected by the accident,

stating:

“….No such finding has been arrived at even in

the disciplinary proceedings nor any charge was

made out as against the appellant in that behalf.

He had no occasion to have his say thereupon.

Indisputably, the writ court will bear in mind the

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distinction between some evidence or no

evidence but the question which was required to

be posed and necessary should have been as to

whether some evidence adduced would lead to

the conclusion as regard the guilt of the

delinquent officer or not. The evidence adduced

on behalf of the management must have nexus

with the charges. The Enquiry Officer cannot

base his findings on mere hypothesis. Mere ipso

dixit on his part cannot be a substitute of

evidence.

45. The findings of the learned Single Judge to

the effect that 'it is established with the

conscience (sic) of the Court reasonably

formulated by an Enquiry Officer then in the

eventuality' may not be fully correct inasmuch

as the Court while exercising its power of

judicial review should also apply its mind as to

whether sufficient material had been brought on

record to sustain the findings. The conscience of

a court may not have much role to play. It is

unfortunate that the learned Single Judge did

not at all deliberate on the contentions raised by

the appellant. Discussion on the materials

available on record for the purpose of applying

the legal principles was imperative. The

Division Bench of the High Court also

committed the same error.”

15.Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC

88, this Court held:

“….Although the charges in a departmental

proceedings are not required to be proved like a

criminal trial, i.e., beyond all reasonable doubts,

we cannot lose sight of the fact that the Enquiry

Officer performs a quasi-judicial function, who

upon analysing the documents must arrive at a

conclusion that there had been a preponderance

of probability to prove the charges on the basis

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of materials on record. While doing so, he

cannot take into consideration any irrelevant

fact. He cannot refuse to consider the relevant

facts. He cannot shift the burden of proof. He

cannot reject the relevant testimony of the

witnesses only on the basis of surmises and

conjectures. He cannot enquire into the

allegations with which the delinquent officer

had not been charged with.”

16.Yet again in Jasbir Singh vs. Punjab & Sind Bank & ors. [(2007) 1

SCC 566], this court followed Narinder Mohan Arya vs. United India

Insurance Co. Ltd. & ors. (supra), stating:

“12. In a case of this nature, therefore, the

High Court should have applied its mind to the

fact of the matter with reference to the materials

brought on records. It failed so to do.”

17.Furthermore, the order of the disciplinary authority as also the

appellate authority are not supported by any reason. As the orders passed

by them have severe civil consequences, appropriate reasons should have

been assigned. If the enquiry officer had relied upon the confession made

by the appellant, there was no reason as to why the order of discharge

passed by the Criminal Court on the basis of self-same evidence should

not have been taken into consideration. The materials brought on record

pointing out the guilt are required to be proved. A decision must be

arrived at on some evidence, which is legally admissible. The provisions

of the Evidence Act may not be applicable in a departmental proceeding

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but the principles of natural justice are. As the report of the Enquiry

Officer was based on merely ipse dixit as also surmises and conjectures,

the same could not have been sustained. The inferences drawn by the

Enquiry Officer apparently were not supported by any evidence.

Suspicion, as is well known, however high may be, can under no

circumstances be held to be a substitute for legal proof.

18.For the aforementioned reasons, the judgment of the High Court is

set aside. The appeal is allowed with costs and appellant is directed to be

reinstated with full back wages. Counsel’s fee assessed at Rs.25,000/-.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Cyriac Joseph]

New Delhi;

December 19, 2008

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