Arijit Banerjee, J.@mdash1. In the present writ application the petitioner challenges the order dated 30th May, 2011 passed by the Disciplinary Authority dismissing the petitioner from service as also the order dated 27th March, 2012 passed by the Appellate Authority whereby the order of the Disciplinary Authority was confirmed.
The Case of the petitioner:--
2. On 24th May, 1973 the petitioner was appointed on ad hoc basis at the Bankura Electric Supply Office. His appointment was confirmed in the permanent post of Lower Division Clerk on 1st September, 1975. From time to time, he was promoted and in 2005 he was promoted to the post of Head Cashier of the Indus Group Electricity Supply. He took over charge of the cash section in July 2005. His duties and functions included taking stock of collection money received by other cashiers, writing up the daily collection statement and sending the same along with supporting documents to the Divisional Office, remittance of the collection money to the Divisional Office, writing of the cash book and other cash related jobs as per the prescribed procedure.
3. On 16th October, 2007 a charge sheet was issued to the petitioner containing the following charges:--
"(i) Thus, it appears that Sri Mittra, Head Cashier defalcated an amount of Rs. 12,487/- from the Bd''s (erstwhile) Exchequer for his personal gain causing loss to the Board (erstwhile) now WBSEDCL.
(ii) Thus, it appears that Sri Mittra defalcated an amount of Rs. 1,09,042/- temporarily during 21.11.2006 to 30.11.2006 for his personal gain causing loss to the Board."
4. On 31st December, 2008 another charge-sheet was issued to the petitioner containing charges to the following effect:--
"(i) On scrutiny of cash book, daily collection statements and daily collection registers for the years 2005-06 and 2006-07, it appears that Mr. Mittra had defalcated a sum of Rs. 3,72,257/- in a fraudulent manner either by recording less amount or not at all in the daily collection statements as well as in cash book during his incumbency as cashier in charge during the period 2005-06 and 2006-07.
(ii) Sri Mittra did not record in the cash book a sum of Rs. 39,197/- remitted from the Bishnupur (D) Division to Indus Group Electric Supply on different dates for arranging the payment of different officials of Indus Group Electric Supply as miscellaneous payment.
(iii) Sri Mittra had defalcated a sum of Rs. 11,052.50 by showing double payment in the cash books for the years 2005-06 and 2006-07 on account of bank commission charges.
(iv) It appears that during the incumbency of Mr. Mittra as cashier in charge there was an unhealthy practice of withholding Revenue Collection Money sometimes to the extent of Rs. 2,69,490/- for the financial years 2005-06 and 2006-07, beyond norms, causing severe blockage of the Company''s revenue exchequer.
(v) It appears that Mr. Mittra had defalcated a sum of Rs. 259/- by showing over utilization of revenue stamp in the revenue Stamp Register purely for his personal gain.
(vi) It appears that during the incumbency of Sri Mittra there were several cases of withholding various payments i.e. overtime, house rent bills, refund of PSD etc by delayed recording in cash book up to the extent of 12 days gap, in gross violation of norms and procedure of the company.
(vii) It appears that on 18 occasions the daily collection Statements during the period 2005-06 were sent to the Bishnupur District Divisional Office without the signature of the Station Manager and on 27 occasions the same were sent to the State Divisional Office with the signature of the cashier in charge who himself signed as Station Manager.
(viii) It appears that during the period 2005-06 and 2006-07, the closing balances were found not certified by the Station Manager in violation of the company''s norms, procedures and stipulations."
5. The petitioner submitted his reply to both the charge sheets. Enquiry proceeding was held and the enquiry officer submitted his report. The disciplinary Authority considered the Enquiry Officer''s report and imposed punishment of dismissal from service on the petitioner along with forfeiture of entire gratuity as a measure of recovery of the loss sustained by the Company as well as forfeiture of pension for lifetime. The petitioner''s appeal against order dated 30th May, 2011 passed by the Disciplinary Authority was dismissed by the Appellate Authority by an order dated 27th March, 2012.
6. The petitioner contends that along with him, two of the supervisors were also charge-sheeted on similar lines as the petitioner and they were also found guilty. However, they got away with trivial punishments whereas the petitioner was dismissed from service. This, according to him, is grossly discriminatory and not permissible in law. In this connection the petitioner''s Ld. Counsel relied on a decision of the Hon''ble Supreme Court in the case of Bongaigaon Refinery & Petrochemicals Ltd. v. Girish Chandra Sarma, , (2007) 7 SCC 206. Reliance was placed on paragraph 18 of the judgment which is set out hereunder:--
"18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee."
7. Ld. Counsel for the petitioner contended that enquiry was conducted in a pre-determined manner. The work load of the petitioner was tremendous and whatever financial irregularity occurred was due to bona fide mistake on the part of the petitioner. The evidence of the witnesses would not support the findings of the enquiry officer. Accordingly, Ld. Counsel prayed that the order of the Disciplinary Authority be quashed.
8. Ld. Counsel for the petitioner relied on a decision of the Hon''ble Supreme Court in the case of M.V. Bijlani v. Union of India, , (2006) 5 SCC 88. In the facts of that case, the Hon''ble Apex Court observed that though the charges in a departmental proceeding are not required to be proved like in a criminal trial i.e. beyond all reasonable doubt, 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 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 had not been charged. On facts the Hon''ble Supreme Court found that the report of the enquiry officer suffers from the aforesaid vices. Accordingly, the orders of the disciplinary authority as also the appellate authority based on the said enquiry report were set aside.
9. Ld. Counsel also relied on a decision of the Hon''ble Supreme Court in the case of Girish Bhushan Goyal v. B.H.E.L, , (2014) 2 WBLR (SC) 478, where in the facts of the case, the Hon''ble Supreme Court was of the opinion that the dismissal order served on the appellant just six days prior to his retirement date was exorbitant and disproportionate to the gravity of misconduct since he was not involved in active collusion with the other employees of the company who were involved in the incident, for causing financial loss to the company, but was negligent by an act of omission.
10. Ld. Counsel also relied on a decision of a Division Bench of this Court in the case of Tanumoy Basu v. The United Bank of India, , (2015) 2 CLJ (Cal) 54. In the facts of that case, the Hon''ble Division Bench found that the disciplinary authority did not assign any reason in the final order of punishment and relied on the conclusions of the enquiry officer without considering the specific objections raised on behalf of the appellant/writ petitioner in the written representations submitted before the disciplinary authority. The disciplinary authority did not assign any reason for rejecting the submissions of the writ petitioner mentioned in the written representation. Accordingly the order of dismissal was set aside.
11. Ld. Counsel also relied on a decision of a Division Bench of this Court in the case of Asit Kumar Roy v. Bangiya Gramin Vikash Bank, , (2014) 4 WBLR (Cal) 865, wherein it was held that when the disciplinary authority imposed punishment on the writ petitioner without assigning any independent reason and when the written comments of the writ petitioner on the finding of the enquiry officer was not considered by the disciplinary authority, such an unreasoned order of punishment awarded by the disciplinary authority could not be sustained in law since the writ petitioner would not know as to why the objections raised by him in respect of the findings of the enquiry officer had been rejected by the disciplinary authority. Ld. Counsel then relied on a decision of this Court in the case of Uttam Kumar Dutta v. The State of West Bengal reported in , (2014) 2 CLJ (Cal) 79. In that case the employee''s writ petition challenging the order of termination from service was allowed since the Court found that the enquiry proceeding was vitiated by non-observance of the basic principle of natural justice. The termination order was passed on the basis of a report of the enquiry committee but the petitioner was never given any opportunity to be present before that committee. Accordingly the termination order was set aside.
The Case of the Respondents:--
12. Appearing on behalf of the respondents, Mr. Panja, Ld. Counsel submitted that the petitioner has accepted the charges brought against him. In reply to the charge-sheets, the petitioner has not denied the charges. His plea was that due to excess pressure of work, physical indisposition and family trouble, collection of cash at counter after the schedule period and, thereafter, depositing the cash with the bank ''might have caused some problem''. His contention was that if any irregularities had occurred he was not ''alone'' responsible. If the company sustained any loss, it was not only his responsibility but also that of the Station Manager. In this connection Ld. Counsel referred to the letter dated 24 July, 2007 written by the petitioner to the Chief Vigilance Officer of W.B.S.E.D.C.L (page 59 of writ petition), wherein the petitioner has admitted the charge of defalcation.
13. Ld. Counsel further submitted that the case of discrimination sough to be made out by the petitioner has no substance. The other two charge-sheeted officers who held the post of Station Managers were not similarly placed as that of the petitioner. The duties and responsibilities of the Station Managers were different from that of the petitioner. Further, the charges brought against the Station Managers were not of defalcation of funds but of negligency in duty. Hence, the petitioner cannot complain if lighter or less severe penalties were imposed on the other two officers.
14. Ld. Counsel then referred to the report of the enquiry officer which has recorded the admission of the charges by the petitioner. Ld. Counsel submitted that apart from the admission, the enquiry officer analysed the evidence on record in great detail and has come to an informed finding that the charges levelled against the petitioner have been proved.
15. Mr. Panja then referred to a decision of the Hon''ble Supreme Court in the case of Municipal Committee, Bahadurgarh v. Krishnan Behari reported in , (1996) 2 SCC 714 in support of his submission that in cases involving corruption, if such corruption is proved, punishment of dismissal from service should follow as a matter of course. He also referred to a decision of the Hon''ble Supreme Court in the case of Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi, , (1996) 2 SCC 12 wherein the Hon''ble Supreme Court set aside the order of the High Court and restored the punishment of dismissal from service imposed by the Disciplinary Authority in view of the clear admission on the part of the delinquent employee that he had misappropriated a sum of Rs. 21,094/- for a temporary period of eight months. Ld. Counsel then referred to the decision in the case of Govt. of A.P. v. Mohd. Nasrullah Khan, , (2006) 2 SCC 373, in support of his submission that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct the errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. In this connection reliance was also placed by Ld. Counsel on the decision of the Hon''ble Supreme Court in the case of Nirmala J. Jhala v. State of Gujarat, , (2013) 4 SCC 301, wherein it was reiterated that while exercising its power of judicial review, the court is to only consider whether the conclusion that is under challenge is passed on evidence on record and supports the finding or whether the conclusion is passed on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.
16. Ld. Counsel then submitted that the total defalcated amount came to Rs. 3,72,257/-. He referred to the evidence of the prosecution witnesses and pointed out that the petitioner declined to cross-examine PW 1. Thus, the evidence recorded by the PW 1 is uncontroverted and deemed to be admitted by the petitioner.
17. On the basis of the aforesaid submission Mr. Panja prayed for dismissal of the writ petition.
Court''s View:--
18. I have considered the rival contentions of the parties.
19. It is well-settled by a catena of case law that the High Court while exercising its power of judicial review does not sit in appeal over the decision impugned before it. It does not reappraise the evidence on record to consider the correctness or otherwise of the decision on merit. Judicial review is not concerned with the merits of a decision but with the decision making process. The power of judicial review is meant to ensure that the aggrieved person receives fair treatment and not to ensure that the conclusion which the authority reached 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 and whether rules of natural justice were complied with; whether the conclusions are based on some evidence; whether the authority entrusted with the power to hold enquiry had jurisdiction, power and authority to reach a finding of fact or conclusion. However, the finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact as defined therein, apply to disciplinary proceeding. If the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charges. The court in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent finding. The court may intervene where the authority conducted the proceedings against the delinquent officer in breach of the rules of the 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 is such that no reasonable person could have arrived at the same or is perverse, the court may interfere and mould the relief to make it appropriate to the facts of each case. (See B.C. Chaturvedi v. Union of India, , (1995) 6 SCC 749).
20. In the case of Zora Singh v. J.M. Tandon, , (1971) 3 SCC 834, at paragraph 10 of the judgment the Hon''ble Apex Court observed that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only its supervisory jurisdiction and, therefore, does not enter into the question of sufficiency of evidence.
21. In Nirmala J. Jhala v. State of Gujarat (supra) the Hon''ble Supreme Court reiterated the parameter of the court''s power of judicial review of administrative action or decision. An order can be set aside if it is based on extraneous grounds or when there are no grounds at all for passing it or when the grounds are such that no one can reasonably arrive at the conclusion. The court does not sit as a court of appeal but it merely considers the manner in which the decision was made. The court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fides or dishonest/corrupt practice. Neither the question as to whether there was sufficient evidence before the authority can be raised nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. The power of judicial review is circumscribed and confined to correct the errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Even when some defect is found in the decision making process, the court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the court should intervene.
22. In the instant case, the enquiry officer submitted a detailed report. There is no allegation of violation of the principles of natural justice. The petitioner was given full opportunity of participating in the enquiry proceeding and in fact, he did so. The enquiry officer recorded the evidence of the witnesses in great detail. Apart from the admission of the petitioner, on an independent analysis of the evidence on record the enquiry officer found the petitioner to be guilty of the charges levelled against him. It cannot be said that the report of the enquiry officer is based on no evidence or that it is so unreasonable that no reasonable person could have arrived at such a conclusion on the basis of the evidence on record. It is not for this court to reappraise the evidence on record and come to an independent finding as regards the guilt or innocence of the petitioner. So long as a decision can be supported by the evidence on record, there is no scope for the writ court to interfere.
23. As regards the contention of the petitioner that he has been discriminated against, I am unable to accept such submission. The other two charge-sheeted officers were Station Managers and their duties and functions were quite different from that of the petitioner. They were in a position of supervisors viz-�-viz the petitioner who was the Chief Cashier. The enquiry officer has found that the Station Managers were guilty of negligence in performing their duty and had they been more diligent and sincere in discharging their duties, the petitioner could not have committed the act of defalcation. Appropriate punishment was imposed on the said two officers as the disciplinary authority thought fit. The charge against the said two officers was not of defalcation of funds nor was there any finding that they actively participated in such defalcation or the same happened with their tacit approval or connivance. It was at best a dereliction of duty on their part. Hence, it cannot be said that the petitioner and the said two officers were similarly situated. Consequently, no question of discrimination arises in my opinion.
24. The decision of the Hon''ble Supreme Court in the case of Bongaigaon Refinery & Petrochemicals Ltd. v. Girish Chandra Sarma (supra) relied upon by the petitioner, in my opinion, has not application to the facts of the instant case. In that case, the Hon''ble Apex Court found that the writ petitioner had been sought to be made a scapegoat for having taken a decision regarding purchase of land at a particular price which was considered to be not a fair price causing loss to the employer company. It was held that there was other officers who were equally responsible for the decision and who stood similarly placed as the petitioner and thus singling out the petitioner and imposing punishment on him was discriminatory. In the present case there was no charge of defalcation against the other two officers nor was it found that they were actively involved in the misappropriation of funds.
25. The other decisions cited by Ld. Counsel for the petitioner, in my opinion, have no manner of application to the facts of the present case. The order of the Disciplinary Authority is not an unreasoned order nor has been passed mechanically by simply adopting the report of the Enquiry Officer. It is a reasoned and well-considered order which refers to the evidence on record and cannot be said to be a perverse order. The said order or the report of the Enquiry Officer also does not suffer from the vice of breach of the principles of natural justice.
26. On the question of proportionality of the punishment imposed on the petitioner, the power to impose penalty on a delinquent officer is conferred on the competent authority. If there has been an enquiry consistent with the rules and in accordance with the principles of natural justice, what punishment could meet the ends of justice is a matter exclusively within the jurisdiction of the disciplinary authority. If the penalty can lawfully be imposed and is imposed upon the charges being proved, it is not for this court to substitute its own view for that of the authority. The adequacy of penalty, unless it is mala fide or shocks the conscience of the court is not to be considered by this court.
27. In my view, an officer of a public institution dealing with public money must discharge his duties and functions with utmost honesty and integrity. It is a position of trust that he holds and under no circumstances a breach of trust on his part is acceptable. If someone like the petitioner, taking advantage of his position and in abuse of his position as a temporary custodian of public money, indulges in an act of misappropriation or defalcation of public funds, such person must be dealt with sternly as the same amounts to a heinous act of corruption both morally and legally. There is no scope for showing leniency or sympathy to such persons provided their guilty is proved. This is necessary not only to preserve public faith and prevent erosion of trust and confidence in public officers but also to deter other similarly situated persons from committing such wrongful act. In my considered opinion if the chief cashier of an institution is found to be guilty of defalcation of funds on the basis of cogent evidence, nothing less than the punishment of dismissal from service should be imposed on him. Such a person may subsequently regret having indulged in the act of defalcation and may even suffer from remorse, but the same would not justify his continuance in service. The grave and culpable nature of such wrongful act would not justify giving such person a second chance.
28. This view of mine finds support from the decision of the Hon''ble Supreme Court in the cases of Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi (supra) and Municipal Committee, Bahadurgarh v. Krishnan Behari (supra).
In the case of Prabhakar Chaturvedi, the employee concerned had collected an amount of Rs. 21,094 partly in March, 1984 and partly in August, 1984. The said amount was payable to Class-III and Class-IV employees of the employer company on account of bonus and other allowances and as such the amount was required to be deposited in the post office accounts of the employees. Instead of so depositing the employee concerned retained the amount with himself and on detection, the amount was tendered by him only in December, 1984. Thus, there was temporary misappropriation of the said amount for a period of 8 months or part thereof. The employee admitted this fact in writing. After a departmental enquiry he was dismissed from service. His statutory appeal before the appellate authority failed. He approached the writ court challenging the order of dismissal and the Ld. Single Judge allowed his writ petition. He was directed to be reinstated with full back wages. The employer company challenged the said order before the Hon''ble Supreme Court and the High Court''s order was set aside. The Hon''ble Supreme Court held that when the employee was guilty of misappropriation of such a large amount of Rs. 21,000/- for some months, it could not be said that the punishment of dismissal as imposed on him was in any way uncalled for or was grossly disproportionate to the nature of the misconduct proved against him.
In the latter case a clerk in the Municipality was alleged to have misappropriated a sum of Rs. 1548.78 by falsifying accounts. On a criminal case being instituted, he was convicted under Section 409 of the IPC. On appeal the conviction was altered from Section 409 to Section 468 of the Indian Penal Code which provides that whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. In view of such punishment, the Municipal Committee dismissed the employee. On an appeal preferred from the order of dismissal, the Director of local bodies while upholding the correctness of the action, reduced the punishment to stoppage of four increments and also directed that the period during which he was out of service should be treated as extraordinary leave. The Municipal Committee''s appeal to the Commissioner failed. The Committee''s writ petition was also dismissed by the High Court. On a Special Leave Petition being preferred by the Municipal Committee, the Hon''ble Supreme Court observed that the employee having been convicted of a serious crime, the proviso (a) to Article 311(2) of the Constitution was clearly attracted. In a case of such nature and indeed in cases involving corruption, there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.
29. In conclusion, I do not find any ground to interfere with the orders impugned. There is no violation of the principles of natural justice nor is there any procedural impropriety in the matter of passing the orders impugned which has caused any miscarriage of justice to the petitioner. It also cannot be said that the orders impugned are based on no evidence or are perverse. Further, in my opinion, the punishment imposed on the petitioner cannot be said to be grossly disproportionate to the misconduct of which the petitioner has been found to be guilty.
30. In view of the aforesaid, this writ petition fails and is dismissed. There will be, however, no order as to costs.
31. Urgent certified photocopy of this judgment, if applied for, be given to the parties upon compliance of necessary formalities.
