1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8258 OF 2009

UNITED BANK OF INDIA ...APPELLANT(S)

VERSUS

BISWANATH BHATTACHARJEE ...RESPONDENT(S)

J U D G M E NT

S. RAVINDRA BHAT, J.

1. The appellant (hereafter called “the bank”) is aggrieved by a judgment of the

Calcutta High Court

1

. By the impugned judgment, the division bench set aside the

decision of a learned single judge of the High Court; the single judge had dismissed

the challenge by the respondent (writ petitioner- hereafter called “the employee”) to

his dismissal from the bank’s service.

2. The employee was initially appointed as a cashier-cum-clerk by the bank, on

18.01.1971. Later, he was promoted to Junior Management Officer Grade Scale-1.

He served as branch manager of the bank’s Chandabila branch from 14.12.1988 to

30.05.1990. Disciplinary proceedings were initiated against him when a charge sheet

on 23.10.1997 alleging his complicity in five major charges (stated in paragraph 15

below) was issued by the bank. The charge sheet was issued seven years after he was

transferred from the Chandabila branch. During this time several audits were

conducted in terms of the norms stipulated by the Reserve Bank of India.

3. The allegations against the employee pertained to the period when he was

posted as Manager in the said Chandabila branch. The charge sheet alleged that he

1

Dated 16.12.2008 in FMA 2696/2007.

2

disbursed loan in favour of twelve fictitious persons in connection with the Integrated

Rural Development Project (hereafter called “IRDP”) introduced by the Central

Government. The loan had two components wherein 50% i.e., ₹ 5,000/- was

repayable term and the remaining 50% i.e., ₹ 5,000/- was subsidy. In terms of the

scheme, 93 applications were received which were to be examined and the applicants

identified on the basis of joint inspection by the bank and the Gram Panchayat

concerned. Once the identified applications were forwarded to the District Rural

Development Agency (hereafter called “DRDA”) the latter had to submit the subsidy

amount. The bank alleged that the applications were forwarded to DRDA which in

turn released ₹ 4,68,833/- towards subsidy. However, the bank’s subsidy register

reflected only ₹ 4,08,833/-, and did not reflect the remainder of ₹ 60,000/- along with

the names of the twelve beneficiaries who purportedly received the said amount. The

bank also alleged that the loan register showed that the loan and the subsidy was

given to twelve beneficiaries against SSI account nos. 45/90 - 56/90. The employee /

respondent denied the allegations. Other charges were that the employee, in

connivance with another employee, deliberately ensured that the relevant papers were

missing; more seriously it was alleged that the amount of ₹ 60,000/- forming the

subsidy component, (of the total ₹ 1,20,000/- disbursed to the beneficiaries) was

misappropriated. The employee denied these allegations. The bank proceeded to

conduct an enquiry.

4. The enquiry officer submitted his report on 05.05.2001. The report, inter alia,

held that Sri Haradhan Bera, Pradhan of Chandabila Gram Panchyat, identified those

persons claiming to be beneficiaries, in the enquiry. The enquiry officer relied on the

evidence of seven beneficiaries, who deposed that no loan amount was disbursed, and

that they had not received any reminder or letter from the bank, regarding return of

loan amount and had not affixed their thumb impressions on the forms. The report

also indicted the employee / respondent for transferring the amounts to Sri Madan

Mohan Saha, another employee (CCG) of the bank. Furthermore, the report placed

strong reliance on a confessional statement made by others charged, including Sri

3

Subhendu Dash, Ex-Pradhan of Chandabila at the time of the incident (document X,

photocopy of the alleged confession dated 03.03.1994). The enquiry officer therefore,

found that the employee was guilty of the charges. The report noted, interestingly,

that the loan amount (i.e., ₹ 60,000/- out of ₹1,20,000/-) was deposited in the account

of the bank, and that the balance was misappropriated.

5. By an order dated 07.10.2002, the Disciplinary Authority, accepted the report,

and, relying on the past conduct of the respondent, terminated his employment. The

employee appealed this order; the appellate authority however, dismissed the appeal

by order dated 28.04.2003. The aggrieved employee approached the Calcutta High

Court, under Article 226 of the Constitution.

2

By a judgment and order

3

that writ

petition was rejected. The employee then filed an appeal. By the impugned order, the

division bench allowed that appeal, and set aside the orders of the appellate and

disciplinary authorities.

Contentions of the bank

6. It is argued on behalf of the bank that the High Court re-appreciated the

evidence and altered the finding on facts of the disciplinary authority on the ground

of insufficiency of evidence. This was contrary to settled proposition that courts, in

judicial review, cannot weigh the evidence appreciated by a domestic tribunal. It was

urged that the High Court erred in acting as an appellate authority and such action is

in the teeth of law laid down by this court in several decisions, such as UP State Road

Transport Corporation v Har Narain Singh

4

; State Bank of India v Ram Dinkar

Punde

5

and Government of A.P & Ors. v Mohd. Narsulla Khan

6

. Counsel further

argued that the impugned judgment was in error in holding that the enquiry officer’s

finding of guilt, leading to the employee’s dismissal, was not based on any evidence.

It was argued that the High Court proceeded to appreciate evidence, premised on

2

W.P. No. 1391 (W)/ 2004.

3

Dated 15.05.2007.

4

1998 (9) SCC 220.

5

2006 (7) SCC 212.

6

2006 (2) SCC 373.

4

which its conclusion about the enquiry report not being based on evidence, was

recorded. This approach was unsustainable.

7. It was next urged that the High Court failed to appreciate that as far as charge

no. 1 was concerned, the employee had authenticated the entries made by Sri Madan

Mohan Saha, ex-CCG and, therefore, his plea that he could not be faulted with for not

maintaining the subsidy register, could not be sustained or accepted.

8. It was argued on behalf of the bank that the impugned judgment could not be

sustained, because its conclusion of inadequate evidence to prove that loan and

subsidy had been disbursed to twelve fictitious persons was erroneous. This

conclusion was in spite of the fact that seven individuals deposed that they had not

received any loan and subsidy amount nor did they affix their thumb impression on

the applications. Likewise, the court could not have gone into the question of whether

the confession statement of Sri Madan Mohan Saha and Sri Subhendu Kumar Das

dated 03.03.1994 was not admitted into evidence. This, it was submitted, was

contrary to the record. Counsel highlighted that the contents of that confession were

not denied by the employee.

9. Learned counsel argued that the impugned judgment was erroneous as it held

that the respondent employee had been prejudiced in the enquiry due to non-

production of certain documents claimed by him. Those documents were not

produced as they were untraceable in the branch or regional office. In fact, charge

no.4 against the delinquent officer dealt with unauthorised removal of those very

documents.

10. It was lastly urged that the impugned judgment, if allowed to stand, would

undermine discipline in banks. Elaborating on this aspect, learned counsel submitted

that this court has repeatedly held that public servants such as bank officials and

managers are expected to display a degree of integrity of a higher standard than other

employees, given that they have to deal with others’ monies. In the present case, the

disciplinary and appellate authorities acted within their rights in considering the

record, appreciating the evidence and concluding that there was sufficient material to

5

impose the penalty of dismissal. The High Court set at naught this fact appreciation,

and based on its re-appreciation of the evidence, set aside the penalty. This, it was

urged, would be prejudicial to the interests of the bank.

Contentions of the employee

11. Learned counsel for the respondent employee, Mr. Kunal Chatterji, urged this

court not to interfere with the impugned judgment. He contended that the employee

was found guilty in the enquiry proceedings. Those findings were not based on any

evidence and were purely conjectural. The findings were clearly perverse and

therefore, the penalty imposed was not justified or legal. It was urged that though

seven borrowers deposed favorably as far as the employee was concerned, only the

Ex-Pradhan deposed against the respondent. However, he was held guilty without

independent verification of identity of persons. It was underlined that no evidence

was adduced about who liquidated the loan. The entire conclusions in the enquiry

report were based on surmises.

12. Mr. Chatterji urged that the respondent left the branch in June 1990. The

chargesheet was issued much later, and the enquiry was conducted seven years later.

Counsel urged that the management withheld documents which

were directed to be produced in the enquiry. This caused serious prejudice to the

respondent as their production would have vindicated his position. It was submitted

that the enquiry officer was swayed by photostat copy of a document which claimed

to be the admission of guilt of misappropriation of funds signed, by the Ex-Pradhan

and ex-cashier Sri Madan Mohan Saha in presence of manager of the bank on

03.03.1994. Those documents were not produced; a photocopy was adduced in the

enquiry. Moreover, the respondent employee had neither signed on it, nor admitted it.

Therefore, the consideration of that document to nail the respondent’s guilt was

clearly an unreasonable and perverse reason, and thus the respondent could not be

bound by the contents of that document.

6

13. Mr. Chatterji argued that though the scope of judicial review in departmental

proceedings is restricted, clearly where it is shown that the outcome of the enquiry is

either procedurally unfair or illegal, or its outcomes are based on findings that are

based on irrelevant facts, without taking into consideration relevant facts, or are

manifestly unreasonable, the court in exercise of its jurisdiction under Article 226 of

the Constitution, can (and does) interfere with the punishment imposed.

14. Learned counsel submitted that two persons whose confession was allegedly

recorded in the document (i.e., Sri Madan Mohan Saha and Sri Subhendu Kumar

Das) were not examined as witnesses to verify it. Despite these glaring infirmities

with respect to the evidence recorded which did not point to the respondent’s

complicity, he was held guilty. This finding was perverse and not based on sufficient

evidence. Counsel submitted that sufficiency of evidence means existence of some

evidence which links the charged officer with the misconduct alleged against him. He

relied on Sher Bahadur v. Union of India & Ors

7

and Narinder Mohan Arya v United

India Insurance Co. Ltd

8

to urge that the High Court could interfere with findings of

an enquiry which were not based on any evidence.

15. The division bench, in the impugned order, after considering the entire record,

noticed the following:

(a) MW 1, Sri Satikinkar Deb, Deputy Manager, Sepai Bazar Branch stated that on

the basis of the handwriting of the subsidy register and also from his own experience

that Sri Madan Mohan Saha used to maintain the register on most occasions. There

was no evidence that the appellant ever maintained the said register. During enquiry

MW 1 stated that there was authentication of the respondent in some cases and by

himself in many cases in the subsidy register when the amount was debited. It was Sri

Madan Mohan Saha’s duty as the cashier to maintain the subsidy register, and he

failed to discharge his duty. The said amount was credited to marginal deposit

account. The matter of non-recording of the said subsidy amount in the subsidy

register was due to Sri Madan Mohan Saha’s omission. For that irregularity the

7

(2002) 7 SCC 141.

8

(2006) 4 SCC 713.

7

respondent could not be held responsible; he did not deliberately conceal the fact with

any malafide intention.

(b) With respect to the charge of depositing subsidy in the account of twelve

fictitious beneficiaries, findings were based on the evidence of seven of those

beneficiaries, whose names were actually shown in the record. These witnesses

denied having received or returned the loans. They were identified by Sri Haradhan

Bera (MW2), subsequent Pradhan, Chandabila Gram Panchayat. MW2’s identity was

challenged at the outset by the respondent; he did not produce any identity proof.

This was not dealt with by the enquiry officer; and the identity of the seven borrowers

/ beneficiaries was not independently proved.

(c) The third charge of misappropriation of the entire loan and subsidy amount in

connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha was based on

the confessional statement document marked 'X'. That document was not exhibited.

The employee was neither its author, nor signatory. Therefore, the document could

not be used against him to fasten him with liability for alleged misappropriation. The

finding based on a document not even admitted into evidence and not signed and

accepted by the appellant was perverse.

(d) The finding on charge relating to removal of documents was not proved, since

it was based on no evidence. The respondent was transferred out of the branch in

1990 and the proceedings were initiated in 1997. Sri Madan Mohan Saha was

working in the branch after the respondent’s transfer. So, it could not conclusively be

established that the respondent removed those documents to conceal the

misappropriation and to destroy them.

(e) The division bench also observed that with respect to the last charge the

enquiry officer recorded that:

“The Management side could not establish the reason for

crediting of Rs. 34,000.00 on 28.06.94 to different 28 loan

accounts out of the fund transferred from S.S. Account of Sri

Madan Mohan Saha to Joint S.S. Account of Sri Haradhan Bera on

28.06.94. Moreover, Sri Haradhan Bera in his evidence avoided

the matter for some reasons best known to him. But for the above,

there is no effect on the charge No.5 which states only that C.S.O.

8

sent a Demand Draft of Rs. 25,000.00 dated 22,04, 1994 and for

Rs. 10,000.0 dated 30.05.1994 to Shri Madan Mohan Saha and

Shri Saha deposited the amounts of drafts in his own and joint S.S.

Accounts. Thereafter transfer of Rs. 25,000.00 was made from S.S.

Account No. 1110 of Sri Haradhan Bera and Shri Prafullah

Mahata on 30.03.1994…”

Discussion and conclusions

16. In one of the earliest decisions of Union of India v. H.C. Goel

9

relating to

departmental proceedings, this court observed that where a public servant is punished

for misconduct after a departmental enquiry is conducted, a clear case where

interference under Article 226 of the Constitution is warranted is when there is no

evidence to establish the official’s guilt.

“22.… 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; 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 issue without further proof of mala fides. That is

why we are not prepared to accept the learned Attorney General's

argument that since no mala fides are alleged against the

appellant in the present case, no writ of certiorari can be issued in

favour of the respondent.

23. That takes us to the merits of the respondent's contention that

the conclusion of the appellant that the third charge framed

against the respondent had 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 the

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 respondent's case is, is there any

evidence on which a finding can be made against the respondent

that Charge 3 was proved against him? In exercising its

jurisdiction under Article 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 deals with

the question; but the High Court can and must enquire whether

9

(1964) 4 SCR 718.

9

there is any evidence at all in support of the impugned conclusion.

In other words, if the whole of the evidence led in the enquiry is

accepted as true, does the conclusion follow that the charge in

question is proved against the respondent? This approach will

avoid weighing the evidence. It will take the evidence as it stands

and only examine whether on that evidence legally the impugned

conclusion follows or not. 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 3 is proved against him is

based on no evidence.”

17. Apart from cases of “no evidence”, this court has also indicated that judicial

review can be resorted to. However, the scope of judicial review in such cases is

limited

10

. In B.C. Chaturvedi v. Union of India

11

a three-judge bench of this court

ruled that judicial review is not an appeal from a decision but a review of the manner

in which the decision is made. It is meant to ensure that the individual receives fair

treatment and not to ensure that the conclusion which the authority reaches is

necessarily correct in the eyes of the court. The court/tribunal in its power of judicial

review does not act as an appellate authority; it does not re-appreciate the evidence.

The court held that:

“12. Judicial review is not an appeal from a decision but a review

of the manner in which the decision is made. Power of judicial

review is meant to ensure that the individual receives fair

treatment and not to ensure that the conclusion which the authority

reaches is necessarily correct in the eye of the court. When an

enquiry is conducted on charges of misconduct by a public servant,

the Court/Tribunal is concerned to determine whether the enquiry

was held by a competent officer or whether rules of natural justice

are complied with. Whether the findings or conclusions are based

on some evidence, the authority entrusted with the power to hold

enquiry has jurisdiction, power and authority to reach a finding of

fact or conclusion. But that finding must be based on some

evidence. Neither the technical rules of the Evidence Act nor of

proof of fact or evidence as defined therein, apply to disciplinary

proceeding. When the authority accepts that evidence and

conclusion receives support therefrom, the disciplinary authority is

entitled to hold that the delinquent officer is guilty of the charge.

The Court/Tribunal in its power of judicial review does not act as

appellate authority to reappreciate the evidence and to arrive at its

own independent findings on the evidence. The Court/Tribunal

10

T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255.

11

(1995) 6 SCC 749.

10

may interfere where the authority held the proceedings against the

delinquent officer in a manner inconsistent with the rules of

natural justice or in violation of 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,

the Court/Tribunal may interfere with the conclusion or the

finding, and mould the relief so as to make it appropriate to the

facts of each case.

13. The disciplinary authority is the sole judge of facts. Where

appeal is presented, the appellate authority has co-extensive 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 [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.”

18. Other decisions have ruled that being a proceeding before a domestic tribunal,

strict rules of evidence, or adherence to the provisions of the Evidence Act, 1872 are

inessential. However, the procedure has to be fair and reasonable, and the charged

employee has to be given reasonable opportunity to defend himself (ref: Bank of

India v. Degala Suryanarayana

12

a decision followed later in Punjab & Sind Bank v.

Daya Singh

13

). In Moni Shankar v. Union of India

14

this court outlined what judicial

review entails in respect of orders made by disciplinary authorities:

“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 courts 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

12

(1999) 5 SCC 762.

13

(2010) 11 SCC 233.

14

(2008) 3 SCC 484.

11

requirements of burden of proof, namely, preponderance of

probability. If on such evidence, the test of the doctrine of

proportionality has not been satisfied, the Tribunal was within its

domain to interfere.”

This court struck a similar note, in State Bank of Bikaner and Jaipur v. Nemi Chand

Nalwaya

15

, where it was observed that:

“If the enquiry has been fairly and properly held and the findings

are based on evidence, the question of adequacy of the evidence or

the reliable nature of the evidence will not be grounds for

interfering with the findings in departmental enquiries. Therefore,

courts will not interfere with findings of fact recorded in

departmental enquiries, except where such findings are based on

no evidence or where they are clearly perverse. The test to find out

perversity is to see whether a tribunal acting reasonably could

have arrived at such conclusion or finding, on the material on

record”.

19. The bank is correct, when it contends that an appellate review of the materials

and findings cannot ordinarily be undertaken, in proceedings under Article 226 of the

Constitution. Yet, from H.C. Goel onwards, this court has consistently ruled that

where the findings of the disciplinary authority are not based on evidence, or based

on a consideration of irrelevant material, or ignoring relevant material, are mala fide,

or where the findings are perverse or such that they could not have been rendered by

any reasonable person placed in like circumstances, the remedies under Article 226

of the Constitution are available, and intervention, warranted. For any court to

ascertain if any findings were beyond the record (i.e., no evidence) or based on any

irrelevant or extraneous factors, or by ignoring material evidence, necessarily some

amount of scrutiny is necessary. A finding of “no evidence” or perversity, cannot be

rendered sans such basic scrutiny of the materials, and the findings of the disciplinary

authority. However, the margin of appreciation of the court under Article 226 of the

Constitution would be different; it is not appellate in character.

20. In the present case, the impugned judgment discloses scrutiny of the record.

The same level of scrutiny is absent in the decision of the learned single judge. That

15

(2011) 4 SCC 584

12

the division bench conducted the kind of scrutiny that it did, cannot be a factor to

hold its decision erroneous. In this context, it would be worth recollecting Bernard

Schwartz

16

that judicial review- of administrative decisions: warrants a minimum

level of scrutiny:

"If the scope of review is too broad, agencies are turned into little

more than media for the transmission of cases to the courts. That

would destroy the values of agencies created to secure the benefit

of special knowledge acquired through continuous administration

in complicated fields. At the same time, the scope of judicial

enquiry must not be so restricted that it prevents full enquiry into

the question of legality. If that question cannot be properly

explored by the judge, the right to review becomes meaningless. It

makes judicial review of administrative orders a hopeless formality

for the litigant. ... It reduces the judicial process in such cases to a

mere feint.''

21. Coming now to the charges, it can be seen that MW 1, the management

witness, who deposed about the procedure in the bank, for recording entries in the

subsidy register, clearly stated that at the relevant time, some entries were made by

the respondent, and some by Sri Madan Mohan Saha, who “used to maintain the

subsidy register on most occasions.” He also deposed that it was Sri Madan Mohan

Saha’s duty as the cashier to maintain the subsidy register. Saha failed to discharge

that duty. In view of this evidence, and no contrary documentary evidence casting the

primary responsibility to maintain the subsidy register on the respondent, the

impugned judgment, in this court’s opinion, cannot be faulted with in concluding that

there was no material to prove the first charge against the employee. As regards the

second charge of misappropriation of subsidy amount from twelve individuals, whose

names were fraudulently introduced, the bank relied on the depositions of seven

persons. They were identified by Sri Haradhan Bera (MW2), himself at the time

Pradhan, Chandabila Gram Panchayat. MW 2’s identity was challenged at the outset

by the respondent; he did not produce any identity proof. The enquiry officer did not

rule on this. The impugned judgment concluded that in the absence of proof of Sri

Haradhan Bera’s identity, and any independent material, with respect to the seven

16

In Administrative Law, 2

nd

edn., p. 584.

13

alleged beneficiaries, their identity was not independently proved. Additionally, there

had to be some material, linking the employee (respondent) with the applications,

introducing the borrowers, etc. MW-1, the subsequent manager, clearly deposed in

reply to a query (question no. 8) as to who used to “identify the borrowers” before

sanction and disbursement of IRDP loans, that the “Pradhan/Member of Gram

Panchayat” used to identify the beneficiaries. Such being the case, the involvement

of the respondent employee had to be shown by more definitive evidence. It is again

a matter of record, that the then Pradhan of the Gram Panchayat, Sri Subhendu

Kumar Das, identified the borrowers. In these circumstances, even in departmental

proceedings, there had to be some overt evidence, and not mere suspicion, to support

a valid finding of complicity of the respondent. In these circumstances, the impugned

judgment cannot be faulted with in its findings on the second charge.

22. The third charge of misappropriation of the entire loan and subsidy amount in

connivance with Sri Subhendu Kumar Das and Sri Madan Mohan Saha was based on

a confessional statement (document 'X'). A copy of that document is on record. The

relevant part reads as follows:

“Today on dated 3.3.94, in the presence of Manager babu of UBI,

Chandabila Branch the statement of Cashier babu (Madan Mohan

Saha) has been recorded in the presence of following persons.

The loan amount in respect of 1 O IRDP loan from A/c. No. SSl-

45/90 to 54/90 were equally shared by we four of us, namely (1)

Sri Subhendu Das, (2) Sri Biswanath Bhattacharyya, (Manager)

(3) Sri Madan Mohan Saha (Cashier), (4) Basudeb Roy (Peon).

The above loan amount were liquidated by we the four persons and

subsidy amount were also received by four of us.

Sd/- Sri Subhendu Kumar Das, 3/3/94

Sd/- Madan Mohan Saha, 3/3/94

The above mentioned discussion and confession were held today at

12.30 P.M. in my presence. The discussions were completed

peacefully.

Sd/- Manager - 3/3/9 4

With Manager's Office Seal.

Attested

By Manager with seal

15.3.94”

14

The document was witnessed by six persons (Sri S.K Sukhjan Ali, Sri Santosh Kumar

Saha, Sri Trilochan Singh, Sri Suresh Chandra Das, Sri Nabin Suri and Sri S.K.

Washef Hussain). The document was not exhibited. Undeniably:

(a) The respondent did not sign the confession.

(b) The confessional statement dated 03.03.1994 was made by Sri Subhendu

Kumar Das and Sri Madan Mohan Saha, which was attested by an officer of the bank.

(c) The confession was an admission as far as its makers were concerned. The

impugned judgment held that this document could not be used against the employee

respondent to fasten him with liability for alleged misappropriation. The finding

based on a document not even admitted into evidence and not signed and accepted,

by the appellant was held to be perverse.

23. This court previously had an occasion to deal with a departmental proceeding

that culminated in a penalty, where the enquiry was based on the confessional

statements made to the police and no other material. The court, in Roop Singh Negi v.

Punjab National Bank

17

held such evidence to be inadequate:

“15. 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. The 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.”

There are decisions of this court (J.D. Jain v Management of State Bank of India

18

and State Bank of India v Hemant Kumar

19

) where witness depositions which stated

that the charged employee had previously confessed or admitted his role and guilt,

17

(2009) 2 SCC 570.

18

1982 (1) SCC 143.

19

2011 (2) SCC 22.

15

were held to be admissible. In the present case, however, the confessional statement

was not by the respondent. Those who authored the confession, did not depose in the

enquiry. Furthermore, no witness who heard the authors of the confession, deposed to

it. At best then, that document bound the authors, not third parties, like the

respondent. The enquiry officer clearly erred by relying on such extraneous matters,

as the respondent could not be made a scapegoat for the confession of others,

especially with regard to his role. The bank’s charge about his complicity had to be

proved by evidence. This document, containing others’ confession, could not have

been used against him.

24. As far as the other two charges go, the division bench correctly held that there

was no evidence to show that the respondent had removed the documents, from the

bank. Importantly, he was charged seven years after the alleged incident; by that time

other managers had taken over the branch. As regards the last charge of transferring

amounts through three demand drafts from the account of Sri Madan Mohan Saha to

Joint S.S. Account of Sri Haradhan Bera on 28.06.94 was concerned, the enquiry

officer noted that, “Sri Haradhan Bera in his evidence avoided the matter for some

reasons best known to him.” In the absence of any other material, the finding that the

amounts had been misappropriated by the respondent, who in connivance with Sri

Madan Mohan Saha, and Sri Subhendu Kumar Das, ensured that the loan component

was returned to the bank, cannot be said to have been established.

25. An interesting side is this - Sri Madan Mohan Saha, who confessed to the

misconduct, was charged and proceeded with departmentally. The confession of guilt,

which he owned up to, nevertheless resulted in a mild penalty of withholding of

increments. However, the respondent, who did not admit his guilt, or confess to it,

and in respect of whom there was no credible evidence, even going by the lower

standards of acceptable proof in departmental inquires, was held to be guilty and

visited with the penalty of dismissal. A reading of the disciplinary authority’s order

reveals that his past record of minor misconduct played a major role in determining

his guilt, despite lack of evidence, and the extreme penalty of dismissal.

16

26. In view of the foregoing discussion, and having regard to the record, the

impugned judgment cannot be faulted with. The appeal is unmerited. The appellant

bank is directed to ensure that the respondent’s services are deemed to be reinstated,

and calculate all his benefits, including arrears of salary, pay increase (as applicable),

increments, and all consequential benefits, and calculate his terminal benefits, and fix

his pension, if admissible to him under the bank’s regulations. The determination of

these benefits shall be undertaken, and the payment of all amounts be made, within

three months from date of this judgment. The appeal is dismissed without order on

costs.

.......................................................J

[K.M. JOSEPH]

.......................................................J

[S. RAVINDRA BHAT]

New Delhi,

January 31, 2022.