Harish Tandon, J.@mdashThis appeal arises from the judgment and order dated December 20, 2013 passed in WP No. 196 of 2013 by the Hon''ble Single Bench whereby and whereunder the order of the appellant authority together with the order of dismissal and enquiry proceedings were set aside and the disciplinary authority was permitted to take steps for holding fresh enquiry beyond the stage of receipt of written statement filed by the private respondent.
2. Admittedly, the private respondent was engaged as Assistant Manager in Port Blair branch of Syndicate Bank. Alleging that the private respondent abused his official position by liquidating a stale demand draft of Rs. 66,000/- and credited the same into the inoperative account of one Smti. Vimla Devi and thereafter withdrew Rs. 20,000/- through Automatic Teller Machine (ATM) card of the said Smti. Vimla Devi from ICICI Bank, the private respondent was placed under suspension vide order dated June 9, 2010. An enquiry was proposed to be held under Regulation 6 of the Syndicate Bank Officers Employees (Discipline and Appeal) Regulations, 1976. A chargesheet was submitted to the private respondent who delivered his defence. Simultaneously, an FIR was lodged with the concerned police station on similar and identical allegations.
3. Initially the private respondent attempted to stall the departmental enquiry as any disclosure of the defence may be used against him in the criminal case, but the enquiry officer proceeded with the enquiry proceedings which prompted the private respondent to file a writ petition (WP No. 779 of 2011) before this Court.
4. By order dated November 18, 2011, the aforesaid writ petition was disposed of with categorical finding that the witness who would be deposing before the criminal court in the month of December 2011 should not be forced to appear before the enquiry officer until they adduced evidence in the criminal case but, in the event, the proceedings of the criminal case gets delayed the enquiry should not be withheld on such ground and such witness shall be examined by the enquiry officer beforehand.
5. The Presenting Officer examined one witness, i.e. the Chief Manager, Tiruchirapally Main Branch, to prove the charge inflicted against the private respondent. As many as 30 documents were tendered, some of which appears to be the photocopy of the original, by the said witness and they were marked exhibits in the manner indicated hereinbelow:
Q.4. Now I show you certain documents. Please identify the same.
Ans. I confirm that the documents shown to me are collected by me from various Departments/offices during the course of my investigation and I identify the same.
The documents identified by MW1 are marked as MEX-1 to MEX-30 (in the same order as per the list enclosed to the chargesheet).
6. Some of the documents authored by another persons were admitted in evidence and marked as exhibit without calling for the respective author of the document to prove the contents thereof. The summary of the evidence so adduced by the said witnesses are that one Vimla Devi opened a saving bank account on June 21, 2008 with an initial deposit of Rs. 100/-. Since there was no operation in the said bank account it was made inoperative until a stale demand draft of Rs. 66,000/- was credited to that account. The said account holder made complaint on June 3, 2010 to the concerned police station alleging that in the night of June 1, 2010 three unidentified persons forcibly entered her house and obtained her signature on some papers by force and have also taken away the passbook. The Offsite Monitoring Cell of Headquarters at Manipal observed that on May 31, 2010 a stale demand draft of Rs. 66,000/- was liquidated and credited to the savings bank account of Vimla Devi and a sum of Rs. 20,000/- was withdrawn through ATM card of ICICI Bank. The private respondent misusing his official position liquidated the outstanding amount by using the user ID of the two Assistant Managers. The said witness further stated that the private respondent have admitted the aforesaid misconduct in a letter addressed to the Chief Manager which is marked as Ext. MEX-5.
7. The enquiry officer proceeded to hold the private respondent guilty of misconduct and submitted the report to the disciplinary authority. It would be relevant to record that the enquiry authority categorically asserted that photocopy of the letter written by the said Vimla Devi (MEX 5) shall not have evidentiary value and therefore, shall not be relied upon. The Disciplinary Authority proceeded and inflicted punishment of dismissal. The appeal filed before the Appellate Authority could not yield favourable result which constrained the private respondent to file the writ petition before this Court.
8. The Hon''ble Single Bench held that the entire exercise taken by the enquiry officer in admitting the documents, marking the same as exhibits, non-recording of the evidence of the witnesses sought to be cited by the delinquent, relying on a document which is not proved in accordance with the settled law and relying on a document which was intended to be not relied upon have committed grave error in conducting the enquiry proceedings which can not be sustained.
9. The Hon''ble Single Bench set aside the order of the enquiry officer, Disciplinary Authority and the Appellate Authority and directed enquiry to be drawn afresh from the stage of submission of the written statement by the private respondent.
10. Mr. Roshan George, learned counsel appearing for the appellants vociferously submitted that the principles of preponderance of probability as distinguished from proving the guilt beyond reasonable doubt should be attributed to the disciplinary proceedings. He further submits that the Hon''ble Single Bench has proceeded as if the misconduct in a disciplinary proceeding is required to be proved beyond reasonable doubt which is one of the facet in a criminal trial. In support of his contention that the proportionality test should be applied in case of administrative action, he relied upon the judgment of the Supreme Court in the case of
11. Per contra, Mr. Krishna Rao, learned counsel appearing for the private respondent submits that although the enquiry Officer observed that the photocopy of the complaint lodged by the said Vimla Devi (MEX 5) shall have no evidentiary value, yet the authorities viz. Inquiry officer, Disciplinary Authority and the Appellate Authority, proceeded to rely thereupon and based their finding on the alleged charge of misconduct. He further submits that neither Vimla Devi nor Priyanka Raj, the two important witnesses were examined on the side of the management and the witnesses which his client intended to cite was declined by the enquiry officer. He vehemently submits that the author of the documents was not examined to prove the contents of those documents including the Chief Manager who claimed that the private respondent has confessed his alleged act of misconduct by submitting the letter (MEX 15).
12. To dispel the aforesaid argument, Mr. George says that once the misconduct is admitted and/or confessed by the delinquent, it is not required to be proved with other evidence.
13. The Hon''ble Single Bench held that if the authorities proceeded to prove the misconduct as depicted in the articles of charges by making a roving enquiry then the foundation of the decision should not be laid on such confessional statement more particularly when the delinquent categorically asserted that such confession was an outcome of threat. It is further held that neither the Chief Manager nor the other witnesses who appear to be material and/or pertinent in the context of the articles of charges were examined by the Presenting Officer to prove the said misconduct and direct the enquiry to be made afresh from the stage of submission of written statement.
14. The confession is valid piece of evidence which would operate against a person making it. Plausible explanation has been offered by the delinquent for such confession that it was made under threat. The said confessional statement (MEX 15) appears to have been addressed to the Chief Manager in presence of the witnesses namely Abdul Wahab. Neither the said Chief Manager nor the said Abdul Wahab have been examined to contradict the statements of the delinquent pertaining to the so called threat yet. The enquiry officer, Disciplinary Authority and the Appellate Authority heavily banked upon the said confessional statement in support of the alleged misconduct committed by the private respondent.
15. It is more strange that the Assistant Manager whose ID passwords have been clandestinely utilized for the alleged misconduct have not come forward to record their statements nor any document in support thereof was produced before the enquiry officer.
16. In the above perspective reliance can be safely made on the judgment of the Supreme Court in the case of
17. No attempt appears to have been shown at the instance of the management to call the witness to prove the documents. It admits no ambiguity that the disciplinary proceedings are decided on preponderance of probability which is distinct from the proof of guilt beyond reasonable doubt as required in a criminal trial.
18. In the case of Om Kumar & others (supra), the Apex court held that the principles of proportionality is an anvil offered which the administrative action affecting the fundamental freedom have been tested. Simultaneously, therewith it is observed that where an administrative action is challenged as arbitrary, the Court can then look into as to whether the action of the authority was legal or the decision based upon omitted certain relevant factors or on taking irrelevant factors.
19. The departmental proceeding is quasi judicial one and is amenable to be tested under judicial review on non-consideration of the relevant piece of evidence and consideration of the irrelevant facts while proving the misconduct.
20. The authority should arrive at the conclusion that the evidence adduced meets the requirement of legal principles i.e. the burden of proof which is one of the facets of preponderance of probability. The doctrine of unreasonableness is apposed to doctrine of proportionality.
21. The Hon''ble Single Bench has elaborately and explicitly demonstrated the irregularity in the evidence and unreasonability in the proceeding without adhering to the settled legal principles. The proportionality is not a abstract word but should be judged with meaningful object and on the relevant factors and materials of each case.
22. Mr. George tried to contend that misconduct of the private respondent is such that the punishment of dismissal is not disproportionate and therefore, the Court should have applied the Wednesbury Principle.
23. The doctrine of proportionality has been recognized in the judicial parlance. The Court should not interfere with the punishment unless it is proved that the same is shockingly disproportionate to the gravity and magnitude of the misconduct.
24. In the instant case, the entire approach of the enquiry officer, Disciplinary Authority and the Appellate Authority in proceeding with the departmental proceeding is contrary to the legal principles and the Hon''ble Single Bench did not commit any error in setting aside the order and directed enquiry to be reckoned from the stage of the filing of the written statement.
25. Though we do not find any ground to interfere with the impugned order, this Court must also deal with the other judgment cited by Mr. George.
26. In the case of Regional Manager, UPSRTC, Etawah(supra), the matter, concerning therein, relates to misappropriation of the employer''s money and misconduct was established by materials produced before the enquiry officer. The point agitated in the said report was that the punishment inflicted on the above charges was disproportionate, as there was no issue involved in the said report relating to the proceedings conducted by the enquiry officer or the Disciplinary Authority being contrary to the settled legal principles. Since defalcation/misappropriation of the money is always viewed seriously, the punishment of dismissal as held in the above report is not disproportionate.
27. In the instant case, the proceedings of the enquiry Officer in arriving at the conclusion is against the legal principles and the punishment having based upon such decision and proof of misconduct is dependant thereupon, this Court also finds that the approach of the enquiry Officer and the procedure adopted in proving the documents and exhibiting the same without calling the respective author is illegal or irregular. Furthermore, the private respondent have been denied to cite two witnesses as those did not appear to be the relevant to the enquiry Officer, is clearly discernible from the recordings made in the enquiry report which also cannot be supported. The delinquent should not be denied to cite the witness as the relevancy and the evidentiary value of the evidence so adduced can be judged while arriving at the decision or conclusion.
28. This Court, therefore, does not find that there is any infirmity and/or illegality in the order impugned in this Mandamus Appeal.
29. The appeal is, thus, dismissed.
30. This Court can very well appreciate anguish shown by Mr. George about the unreasonable delay in completing the departmental proceeding. This Court directs the concerned authorities to complete the departmental proceeding within four months from the date of communication of this order, from the stage of filing of the written statement by the private respondent, in the light of the observations made in the judgment rendered by the Hon''ble Single Bench as well as in this order. Needless to mention the private respondent shall render all possible co-operation in the enquiry.
31. There will be no order as to costs.
Subrata Talukdar, J.
I agree.
