JUDGMENT
Satyabrata Sinha, J.
1. This appeal is directed against a judgment and order dated September 24, 1993 passed by a learned Single Judge of this Court whereby, and whereunder the writ petition filed by the writ petitioner/respondent questioning an order of removal passed by the disciplinary authority which was affirmed by the Appellate Authority during pendency of the writ application, has been allowed.
2. The petitioner was an officer of Syndicate Bank. He at the relevant time was posted as Manager of Pattapur Branch of the Bank. It was a small branch having 3 employees, viz., the petitioner, clerk and a class-IV staff. The petitioner was almost the sole authority in relation to the said branch. He was charge sheeted on or about November 21, 1983 which read thus :
“a) You received from Smt. Sashi Sahuani, a customer of the Branch, a sum of Rs. 230/-for credit towards her account and made necessary entries in the Bank Pass Book held by her and failed to account for such monies in the books of accounts of the Branch ;
b) You made/caused to be made fictitious credit entries in the loan account of Sri Radhanath Panda showing closure of the account on June 18, 1980 and thereafter closed the account (sic.) on September 9, 1980 and in the process, you scored off/caused to be scored off writings/ rubber stamp impressions found in the loan register to conceal the actual fact;
c) You made/caused to be made credit entries in the Jewel Loan Account of Sri Krishna Chandra Padhi showing closure of the account on February 19, 1981 and that when the irregularity was pointed out to you by the external auditors, you failed to produce the jewels for their verification and caused closure of the account on March 5, 1981 in suspicious circumstances.”
3. The Articles of Charge so furnished preceded a notice asking for an explanation from the respondent and the dissatisfication of the disciplinary authority and on such explanation being furnished by him, along with the said charge-sheet a detail statement of imputations of misconduct on his part had been assessed. An Enquiry Officer was appointed to enquire into the allegation levelled against him.
4. The Enquiry Officer found the petitioner guilty in respect of some of the charges and the disciplinary authority agreeing therewith passed the impugned order of punishment. The enquiry report submitted by Sri P.S. Nayek being Annexure-‘J’ to the writ application is contained in pages 97 to 125 of the Paper Book. Out of the three charges, according to the Enquiry Officer, charges (a) and (c) had been proved.
5. Before the learned Judge on behalf of the writ petitioner it was urged :
1. Charge-sheet had been issued without considering the explanation in detail.
2. The Enquiry Officer proceeded with a predetermined mind and consequently the charge-sheet is bad in law and, thus, the disciplinary proceeding initiated on such proceeding is vitiated. Reliance in this connection has been placed on Sunil Mukherjee v. State of West Bengal, reported in 1977 Calcutta High Court Notes 1014 and Bimala, Kanta v. State of West Bengal, reported in 84 CWN 483.
3. The charge-sheet is vague. Reliance in this connection was placed on Glaxo Laboratories v. The Presiding Officer, Labour Court, Meerut and Ors., reported in (1984-I-LLJ-16)(SC) and A.L. Kalra v. The Project and Equipment Corporation of India Ltd., reported in (1984-II-LLJ-186)(SC).
4. The charge-sheet was issued in violation of Rule 6 of the Syndicate Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976.
5. The petitioner’s right to Inspect the documents had been violated.
6. The petitioner was not given an opportunity to adduce evidence in defence.
7. As a copy of the preliminary enquiry report held by C.B.I. was not supplied, the entire proceeding was vitiated.
6. All the aforementioned contentions were rejected by the learned trial Judge. Learned Trial Judge, however, held that non-examination of the customer of the bank by the department was violative of principles of natural justice. The learned trial Judge in support of the said conclusion relied upon decision in Nand Kishor Prasad v. State of Bihar, reported in (1978-II-LLJ-84) (SC). Reliance was also placed on Brojo Ballav Ghosh v. Union of India reported in (1987-I-LLJ-331) (Cal).
7. The learned Trial Judge, further held that the disciplinary authority committed an error in relying upon a letter dated August 30, 1984 although the same did not form part of list of documents. The learned Trial Judge, however, held that the findings of the Enquiry Officer in respect of the Charge No. ‘C’ is not vitiated. It was observed :
“Inspite of the same, in my view, the entire finding of the Enquiry Officer in respect of Charge No. ‘C’ is not vitiated as the charge ‘the petitioner lacks diligence and devotion to duty’ was proved at the enquiry on other evidence namely MEX 12 which is a letter of declaration written by the petitioner himself declaring inter alia to the effect that the jewel in question was not kept in the proper safe, but in a different almirah meant for security papers and hence there as no entry in the jewel log book and the said declaration was made inadvertently due to oversight.
Although there is no evidence that such action on the part of the petitioner was fraudulent or motivated, the fact remains such commissions on the part of the petitioner was absolutely an irregular act and could not have happened but for lack of due diligence and negligent conduct of the petitioner and the same certainly amounts to misconduct and the petitioner, therefore, was rightly held guilty of such misconduct.”
8. Despite the said finding, the learned Trial Judge relying on certain decisions of the Apex Court, viz., Krishna Mohan Mukherjee v. Secretary, reported in (1983-I-LLJ-228); Bhagat Ram v. State of Himachal Pradesh, reported in (1983-II-LLJ-1) ; Ved Prakash Gupta v. Delton Cable India (P) Ltd., reported in (1984-I-LLJ-546) and Ranjit Thakur v. Union of India and Ors., reported in (1988-I-LLJ-256) held that the punishment meted out was disproportionate to the charge levelled against him.
9. The short questions which, thus arise for consideration in this appeal are as to whether :
1. Non-examination of the witnesses in question has vitiated the enquiry proceedings relating to Charge No. (a) and 2. The punishment meted out to the petitioner is grossly disproportionate, vitiates the entire proceedings. 10. Before proceeding with the matter it may be notified that the witnesses who were not examined, were not employees of the Bank. They were customers and, therefore, not under the control of the appellant. 11. It is also a well settled principle of law that an Enquiry Officer may arrive at his finding on the basis of the materials produced before him unless it is shown that the witnesses had not been produced with a mala fide motive and had such witness been examined, the result would have been otherwise. It is also settled law that the provisions of the Evidence Act are not applicable in departmental proceedings and a finding of guilt can be arrived at on the basis of preponderance of probability. ;
12. In order to arrive at a finding as to whether the delinquent Officer is guilty of the charges levelled against him or not, the defence of the delinquent Officer is also a relevant consideration. From the showcause filed by the delinquent as regard Charge No. (a), the petitioner stated:
“A/SB Account of Smt. Shashi Sahuani
i) That Smt. Shashi Sahuani opened an SB A/c No. 528 on July 28, 1980 with a balance of Rs. 560/-.
ii) That she had given me to deposit Rs. 230/-which was in turn given by me to the then Cashier Mr. Pramod Mullick to pass the Credit to her account.
iii) That I had made entry in the Pass Book as part of better customer service presuming that the entry will be received from the Cashier.
iv) The Account was closed as per balance outstanding of Rs. 720.30. It is true that I had to pay the amount of Rs. 230/- from my pocket, in order to protect the image of the Bank in the village.
v) I deny that the said sum of Rs. 230/- was retained by me with dishonest intention to use it for my own purpose.”
13. The petitioner had admitted the charges as : (i) he admitted opening of account by Smt. Sashi Sahuani, (ii) receipt of amount of Rs. 230/ by him, (iii) entry in the book made by him although the account was closed and (iv) he had deposited the said amount from his own pocket. The defence of the petitioner that he had handed over the said amount to the Cashier and presumed that an entry will be made appears to be preposterous and unbelievable on the face of it inasmuch as had he not misappropriated the said amount even for a temporary period there could not have been any earthly reason as to why he paid the said amount from his own pocket. Had the cashier been guilty of commission of any offence, the petitioner as head of the said Branch was under a legal obligation to initiate a departmental proceeding or at least report the said fact to the higher authorities. He did not do so. It is not necessary to discuss charge No. ‘C although even that Charge could be said to have been proved by admission as would appear from clauses 3 and 4 of his show cause appearing at page 63 of the Paper Book.
14. From the evidence of M.W.I Sri Prakash Ch. Pahari who was working as a Clerk in the said Branch, it is evident that except the aforementioned amount of Rs. 230/- all other transactions on that date had been entered.
15. In his report, the Enquiry Officer has taken into consideration all the aforementioned facts as also the other materials on records. It may be noticed that answers to the show cause notice has been repeated in the reply to the charge-sheet by the petitioner and keeping in view the fact that the aforementioned letter dated August 30, 1983 written by him was the explanation, there was nothing wrong in taking the same into consideration by the disciplinary authority.
16. The only question which in the facts and circumstances of this case arose for consideration was as to whether the defence taken by him was successfully brought home by the writ petitioner. The answers given to the showcause notice has been repeated in reply to the charge-sheet of the petitioner as contained in Annexure ‘C’ to the writ application wherein he categorically stated that he had nothing more to add than what he had explained already by his letter dated August 30, 1983 which was a part of his show cause as the statements made therein can be said to have been incorporated by reference in his show-cause. No illegality, therefore, has been committed by the Enquiry Officer in placing reliance thereupon as admission made by a party to the proceeding is admissible against him proprio vigore and in that view of the matter it was not necessary to bring the said letter to the notice of a party to the Us. In this case the appellant stands in a better position as in his own show-cause dated March 12, 1984 the delinquent had himself accepted the contentions made in his earlier letter dated August 30, 1983.
17. It is also relevant to note that writ petitioner himself has annexed the said letter dated August: 30, 1983 in his writ application as Annexure ‘A’ thereto.
18. Furthermore, a bare perusal of the enquiry report would show that the Enquiry Officer had analysed the evidences and noticed that the management had produced four witnesses and 21 documents. Such analysis of evidence runs into more than 5 pages.
19. We are, therefore, of the opinion that keeping in view the other evidences brought on record together with the documentary evidences and the defence of the writ petitioner/respondent himself, he had not been prejudiced by non-examination of the clients of the Bank as the petitioner could not have improved his stand by their examination. He could not have even if they had been examined, resiled from his own statements.
20. In Ranjit Kumar De Chowdhury v. State of West Bengal and Ors., reported in 1997 WBLR (Cal) 325, a Division Bench of this Court, inter alia, held that when a charge is admitted it need not be proved. It is also a trite law in view of the decision of the Supreme Court in State Bank of Patiala v. S. K. Sharma reported in (1996-II-LLJ-296) which has, been followed in State of TN. v. Thiru K.V. Perumal and Ors., reported in(1996-II-LLJ-799) that violation of principles of natural justice should also be viewed from another angle i.e. as to whether the delinquent employee was prejudiced thereby or not.
21. In Ranjit Kumar De Chowdhury v. State of West Bengal and Ors., reported (supra), the Division Bench noticed :
“It may be noticed that the Supreme Court recently in the case of State Bank of Patiala v. S. K. Sharma reported (supra) has held that the principles of natural justice should be viewed Tom the angle as to whether the delinquent employee was prejudiced or not.
The Supreme Court upon reviewing a large number of decisions including the decision of the Privy Council in the case of Calvin v. Carr, reported in 1980 AC 574 held that even if principles of natural justice has not been complied with by the authority, the same would not be void.
The Apex Court referred to a decision of SABYASACHI MUKHARJI, J. (as His Lordship then was) in the case of K. L. Tripathi v. State Bank of India, reported in (1984-I-LLJ-2) wherein the Apex Court held that the principles of natural Justice is not required to be complied with where the delinquent does not dispute the fact in issue. The Supreme Court also considered its earlier decision in the case of Managing Director ECU v. B. Karunakur, reported in (1994-I-LLJ-162) and a large number of other decisions. The Apex Court held that the procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent Officer/employee and the violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed, except in cases where no notice, no opportunity and no hearing had been given. In the instant case, as noticed hereinbefore, the appellant had been given an opportunity of being heard. In view of the fact that he had admitted this guilt, in our opinion, the appel lant was not prejudiced at all by wrong mentioning or non mentioning of section particularly in view of the fact that the Respondent No. 2 was, although not obliged to, but still granted a further opportunity of hearing to the appellant.”
22. In Indian Oil Corporation Ltd. and Anr. v. Ashok Kumar Arora, , it was held :
“At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate Court/ authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. v. S. Sree Rama Rao, reported in (1964-II-LLJ-l 50) ; State of A.P. v. Chitra Venkata Rao, reported in (1976-I-LLJ-21) ; Corpn. of the City of Nagpur v. Ramachandra reported in (1981 –II-LLJ-6) and Nelson Motis v. Union of India, reported in (1992-II-LLJ-744).”
23. Similar observations had been made in Rae Bareli Kshetriya Gramin Bank v. Bholo Nath Singh and Ors., , wherein it was held :
“The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of: judicial review to correct errors of law of procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any findings in that behalf was recorded by the High Court.”
24. The question as regard standard of proof in a departmental proceeding is no longer res integra in view of a recent decision of Supreme Court of India in High Court of Judicature at Bombay v. Udaysingand Ors., wherein it has been held that even discrepancies in evidence due to time-lag between the date of occurrence and date of recording of evidence may not matter. In the aforementioned case, the Apex Court while considering the question as regard the charges of having disproportionate assets to his known source of income against a Judicial Officer held that where exercising of power of Judicial Review aTribuna!/ Court could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It was held —
“But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of ‘proof beyond doubt’ has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion.”
25. In Tara Chand Vyas v. Chairman & Disclipinary Authority and Ors., reported in (1997-II-LLJ-26), while considering the matter relating to misconduct of a bank employee, emphasis was laid by the Apex Court on the reason for nationalisation of the bank so as to enable the State to effectuate socio-economic justice and public interest. It was observed that every Employee/ Officer in the Bank should strive to see that the banking operations or services are rendered in the best interest of the system and the society so as to effectuate the object of nationalisation. It was observed at page 28 :
“The thrust of the imputation of charges was that he had not discharged his duty as a responsible Officer to safeguard the interest of the bank by securing adequate security before the grant of the loans of the dealers, and had not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference. It is then contended that no reasons have been given in support of the conclusions to substantiate the charges. The Enquiry Officer had elaborately discussed each charge and given reasons which were considered by the disciplinary authority and reached the conclusion that the charges were proved. So had the appellate authority. They are not like a Civil Court.”
26. The Court, there cannot be any doubt, may in certain situations alter the quantum of punishment but the position of a bank employee may be considered from a different angle.
27. In Narayan Dattatreya Ramteerthakhar v. State of Maharashtra and Ors., , the Apex Court in a similar situation has held :
“The special leave petition arises from the order of the Maharashtra Administrative Tribunal, Bombay Bench, made in OA No.558 of 1991. The finding recorded by all the authorities is that the petitioner has misappropriated a sum of Rs. 1,440/- deducted from the employees and had not deposited it until asked to pay the same in 1985. Thereby, the authorities have concluded that the petitioner has committed misconduct. On that finding the Enquiry Officer found him guilty. The disciplinary authority removed him from service. The petitioner challenged the order in the High Court. The High Court allowed the petitioner to withdraw the writ petition with liberty to avail of the alternative remedy. The Tribunal found that there is no proper explanation for the inordinate delay In assailing the disciplinary action. That apart, even on merits also, we do not think that there is any case made out for interference. The finding is that the petitioner has committed misappropriation of public money and his removal from service is an appropriate order.
Learned Counsel for the petitioner sought to contend that the petitioner has not committed any misappropriation and that he was forced to deposit the money. We cannot accept the contention in view of the fact that the petitioner himself had deposited the amount.”
28. In view of the aforementioned decisions, it cannot be said that the punishment meted out to the writ petitioner is grossly disproportionate to the charges proved against him.
For the reasons aforementioned, the appeal is allowed. The judgment and order dated September 24, 1993 is set aside but in the facts and circumstances of this case there will be no order as to costs.
Ranojit Kumar Mitra, J.
29. I agree.