SUMAN SAHA vs STATE BANK OF INDIA AND ORS
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(ORIGINAL SIDE)
Present:
The Hon’ble Justice Rai Chattopadhyay
WPO 344 of 2020
Suman Saha
Vs.
State Bank of India and Ors.
For the Petitioner : Mr. Meghnad Dutta
: Mr. Arindam Paul
: Ms. Debarati Das
For the respondent
Nos. 1 to 3 : Ms. Deblina Lahiri
: Ms. Moumita Sharma
Judgment on : 12.11.2026
Uploaded on : 12.11.2026
Rai Chattopadhyay, J. :-
1. The writ petitioner has been charge-sheeted, subjected to disciplinary
enquiry, has been subjected to punishment being found guilty of the
charges levelled by the Disciplinary Authority, his challenge to which
before the Appellate Authority has failed. Hence, he has filed the
present writ petition, to specifically challenge the order of the Appellate
Authority, dated December 27, 2018 and has sought for setting aside
of the same. Eventually, the order of the Disciplinary Authority
imposing punishment upon the writ petitioner as well as that of the
Enquiry Officer finding him guilty of the alleged charges have also
come to be challenged by the petitioner, in this matter. The petitioner
has further prayed for relief that the respondent/ Bank be directed to
forthwith release the amount withheld / deducted by the Bank, on
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account of punishment imposed upon him of withholding of
incremental benefits.
2. Before dealing with the impugned order, the background of the matter
is required to be discussed. The petitioner was appointed as an
"Assistant", with the respondent/Bank, on or about December 17,
2012 . While the petitioner has been serving as a "Customer Assistant"
at Madhyamgram Chowrasta Branch, he has been served with a letter
dated December 31, 2016 , to be called upon to provide with the
source of the cash deposit of a sum of Rs. 200,000/-, made on
November 31, 2016 , in each of the 2 savings accounts being No.
33730448720 and 35399640888 respectively.
3. The writ petitioner responded vide letter dated December 31, 2016 ,
where he has written as follows:—
“Since my Mother is a pensioner and patient in high Blood sugar and
hurt disease and also my mother in law suffered a heart attack recently.
Both of them under regular follow up treatment. So we always keep a
portion of cash for there regular follow up treatment in emergency
medical purposes.
Portion of our house is under construction and other portion is also gone
through major repairing work for demonetisation amount in hand for that
purpose is useless and deposited.
Cash gift received on various occasions over the years deposited due to
demonetization.
House hold saving deposited due to demonetization.
Withdrawal cash in hand prior to demonetization deposited as the
currency became non usable.
One of my close relative marriage also done during demonetization
period. for this purpose expenditure amount also deposited due to
demonetization.
The withdrawals made are also due to the above reasons and to maintain
regular livelihood expenses.”
4. After duly responding to the clarificatory questionere by the writ
petitioner, he has been issued a suspension letter dated February 04,
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2017 , suspending him from the service, with immediate effect. Later,
on May 31, 2017 , the petitioner was issued with a show-cause notice,
demanding his written explanation about the following 3 allegations:—
“Allegation No. 1: You have deposited Rs. 4,20,000/- by Cash in your Accounts
which is disproportionate to your known sources of income as detailed under List –
A of Annexure – I .
Allegation No. 2: You have swapped Rs. 4,92,500/- on different dates (Cumulative
figure for transactions undertaken from 12.11.2016 to 26.12.2016) during
Demonetization Period violating Bank's instructions as detailed under List – B of
Annexure – I .
Allegation No. 3: You have mis-utilized accounts of other persons for exchanging
SBN using Alternative Channels like INB, CDM & GCC as detailed under List – C of
Annexure – I .”
5. The petitioner's explanation followed vide his letter dated June 27,
2017 . Consequent upon such reply being given by the writ petitioner,
the respondent has revoked his suspension, vide letter dated August
31, 2017 , without prejudice to the Bank's rights to proceed further
against the petitioner under the applicable Service Rules.
6. On September 21, 2017 , the petitioner was issued a chargesheet,
bearing the following charges:—
“Charge 1:
You have deposited Rs. 4,20,000/- by Cash in your Accounts which is
disproportionate to your known sources of income as detailed under
List – A of Annexure – I .
Charge 2:
You have swapped Rs. 4,92,500/- on different dates (Cumulative figure
for transactions undertaken from 12.11.2016 to 26.12.2016) during
Demonetization Period violating Bank's instructions as detailed under
List – B of Annexure – I .
Charge 3:
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You have mis-utilized accounts of other persons for exchanging SBN
using Alternative Channels like INB, CDM & GCC as detailed under List –
C of Annexure – I .
2. By your above acts you have been found, prima facie, liable for
committing acts of "Gross Misconduct" under Clause 5 (j) of the
Memorandum of Settlement dated 10.04.2002 on Disciplinary Action &
Procedure for workmen staff.
3. The above charges, if proved, would attract the provisions of penalty
under Clause 6 of the said Memorandum of Settlement.”
7. The petitioner was called upon to submit his reply to the same, which
he has replied to vide his letter dated October 6, 2017 . Vide a letter
dated January 3, 2018 , the respondent/ Bank issued a corrigendum
to the said chargesheet, modifying the 3rd charge. The modified
Charge No. 3, was as follows:—
“Charge No. 3:
Particulars :-
Existing: You had mis-utilized the accounts of other persons for exchanging
SBN & for withdrawal beyond the ceiling specified by RBI during
demonetization period. You had also mis-utilised your salary account as
intermediary account for facilitating other customer by giving currency of the
same amount violating bank's instructions as detailed under List – C of
Annexure – I .
S/N Details of Transactions for exchanging SBN through
Alternate Channels involving Others' Accounts.
Page 5 of 28
2 Sri Suman Saha deposited cash Rs.98,000/- ( Rs 40,000/-
,Rs 40,000/- & Rs 18,000/-) in total, through GCC by
using his ATM Card on 17/11/2016 to the Account
No.35850170791 of Sri Prosenjit Naskar, an employee of
authorized vendor – Maa Santoshi Enterprise. The same
amount was transferred to the Account No.10618039148
of Sri Ramen Majumder by Sri Prosenjit Naskar on the
same day. Incidentally, as per statement of Sri Ramen
Majumder, Sri Majumder gave Rs.98,000/- (In
denominations of 500/- and 1000/-) to Sri Suman Saha.”
8. A second corrigendum was issued on January 10, 2018 , modifying
the charge No. 2, in the following manner:—
“Charge No. 2 :
Particulars :-
Existing: You have swapped Rs. 4,92,500/- on different dates (Cumulative figure for
transactions undertaken from 12.11.2016 to 26.12.2016) during Demonetization
Period violating Bank's instructions as detailed under List – B of Annexure – I .
List-B :
Total
Amount
Swapped
(Rs.)
Date of Swapping of
S/N
SBN
No. of
Transactions
1 12.11.2016 8 1,11,500/-
2 13.11.2016 8 54,000/-
3 13.11.2016 1 1,000,00/-
4 13.11.2016 1 1,000,00/-
5 15.11.2016 9 39,000/-
6 16.11.2016 7 31,000/-
Page 6 of 28
7 17.11.2016 10 55,000/-
8 25.11.2016 1 1,000/-
9 26.12.2016 1 1,000/-
TOTAL
4,92,500/-
To be read as:
You have swapped Rs. 2,92,500/- on different dates (Cumulative figure for
transactions undertaken from 12.11.2016 to 26.12.2016) during Demonetization
Period violating Bank's instructions as detailed under List – B of Annexure – I .
List – B:
Date of Swapping
S/N
No. of
Transactions
Total Amount
Swapped (Rs.)
of SBN
1 12.11.2016 8 1,11,500/-
2 13.11.2016 8 54,000/-
3 15.11.2016 9 39,000/-
4 16.11.2016 7 31,000/-
5 17.11.2016 10 55,000/-
6 25.11.2016 1 1,000/-
7 26.12.2016 1 1,000/-
TOTAL
2,92,500/-
9. The disciplinary proceeding followed thereafter, starting from January
11, 2018 . Ultimately, the writ petitioner was served with the report of
enquiry dated February 23, 2018 . He submitted his written objection
to the same dated March 16, 2018 . He received the notice of the
respondent dated March 27, 2018 , calling upon him to reply to the
proposed punishment of reduction of salary to a lower scale of pay by
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two stages for two years. Though the petitioner objected to such
proposed punishment, vide his letter dated March 28, 2018 , allegedly,
in complete disregard thereof, the respondent passed the impugned
order of penalty against the petitioner vide letter dated March 29,
2018. The respondent Bank/Disciplinary Authority has imposed the
following penalty against the petitioner in terms of Rule 6 (e) of the
provision for Disciplinary Proceedings, Memorandum of Settlement of
Award Staff dated April 10, 2002 ;
“Reduction to lower stage in the scale of pay by two stages
for two years with further directions that you will not earn
increments to your pay during the period of such reduction
and on expiry of such period the reduction will not have the
effect of postponing the future increments to your pay.”
10. The writ petitioner has preferred an appeal challenging the order of
penalty dated March 29, 2018 , which was dismissed by the Appellate
Authority vide the said impugned order dated December 27, 2018 ,
holding that the penalty imposed on the petitioner was commensurate
with the gravity of the charges. The present writ petition arises due to
grievance and dissatisfaction of the writ petitioner about the said order
of the Appellate Authority in particular and about the enquiry
proceeding, enquiry report and penalty imposed by the Disciplinary
Authority, in general.
11. In argument Mr. Suman Saha learned advocate for the writ petitioner
has contended that the order imposing penalty against the writ
petitioner dated March 29, 2018, is patently illegal, unjust and without
any lawful reasoning; the said order is attacked being without due
appreciation of the materials and evidence on record and having been
passed in a mechanical manner; the said order as well as the
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impugned order of the Appellate Authority dated December 27, 2018,
have been challenged as based on no evidence.
12. His further contention is that the penalty imposed upon the writ
petitioner citing Rule 6(e) of the Memorandum of 2002 is contrary to
the said provision itself. It is submitted that the said Rule prescribes
several form of punishments that can be imposed upon an employee
being found guilty of “gross misconduct”. According to the petitioner, a
plain reading of the said Rule would further make it clear that the
authority is empowered to impose any one of several forms and/or
nature of punishment prescribed by Rule 6, upon finding an employee
to be guilty of “gross misconduct”. Mr. Suman Saha learned advocate
has submitted that the extent of power of the Disciplinary Authority is
inferable from use of expression “or” appearing in the text of Rule 6,
after each specific form of punishment mentioned in each of the sub
paragraph of Rule 6. In other words, it has been submitted that Rule 6
prescribes several forms and/or nature of punishments which are in
exclusion of and alternative to each other and the petitioner has to be
imposed with one and cannot be twice vexed. But in this case
allegedly, the respondent has committed error by making the petitioner
vexed with double punishment, which is not the mandate of the Rule.
13. In this regard Mr. Suman Saha learned advocate for the petitioner has
relied on a Supreme Court judgment in Commissioner of Customs
Central Excise and Service Tax, Patna versus Union of India and
Others 9reported at 2023 SCC Online SC 1330) , where the Court
has held that what is plain and unambiguous from a bare reading of a
provision under consideration must be interpreted in the same way as
it has been stipulated and not in a way that it presumes deficiency and
radically changes the meaning and context of the provision; that, when
the meaning of the provision is clear and unambiguous by the usage of
“or” , there is no scope to interpret the said word as a disjunctive
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“and”; and also that usage of “semicolon” and “comma” essentially
import scope of the provision laid down before that, to have come to an
end having no bearing with the later portion of the provision.
14. According to the petitioner he has been imposed with penalty not only
as per Rule 6 (e) only but also that under Rule 6 (f) of the 2002
Memorandum, which is in clear violation of the measures of
punishment prescribed under Rule 6. It is submitted that the
punishment imposed by the Disciplinary Authority subsequently
affirmed by the Appellate Authority is therefore without authority and
jurisdiction.
15. Regarding the alleged erroneous findings of the Enquiry Officer, it has
st
been submitted that the explanation offered by the petitioner to the 1
Charge, either have not been considered in its proper perspective or at
times not considered at all. That the petitioner has duly offered
explanation for deposit of sums of Rs. 2.20 lakhs and 2 lakhs
respectively as alleged, in his two accounts, which have neither been
disbelieved nor considered by the Enquiry Officer in his report; that,
similar non application of mind may be noticed from the decision of
the Disciplinary Authority as well as the Appellate Authority
respectively, in this regard. It has further been submitted in this
regard that to come to a finding of disproportionate accumulation in
his accounts than his income, the Enquiry Officer has not considered
his total salary but only that of the year 2016, which according to the
petitioner, completely demolished the finding itself being based on
surmises only.
nd
16. So far as the 2 Charge is concerned, according to the petitioner,
though enough reliance has been placed on RBI Guidelines to hold
alleged lapses on his part as per the PEXS, but no such Circular
and/or guidelines of RBI has been produced which may be seen to
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have been violated by the petitioner, as alleged. The petitioner says
that the bank has not been able to prove any violation committed by
the petitioner, of any RBI guideline or rules of the bank. The petitioner
says that at the relevant time, when it was a phase of demonetisation,
there was no order either by the RBI or the bank itself, at least no
order as such could be produced and proved by the respondent to
have prohibited swapping of the outdated currency notes. On the
contrary, the witness (PW-1) has specifically asserted in his deposition,
that there was none. It has further been submitted that transaction in
question were undertaken during the extraordinary circumstances
prevailing at the time of demonetisation to assist customers and other
persons and that neither any pecuniary benefit accrued to the
petitioner nor any financial loss was caused to the bank. On the
contrary during demonetisation the highest cap for deposit of money in
bank was stipulated to be Rs. 2,50,000/-. That, whatever limit of
exchange of Specified Bank Notes (SBFs) was provided (that is,
Rs.4000/- to 4500/- later reduced to Rs. 2000/- with effect from
November 18.2016) was with regard to a single person.
rd
17. Inn respect of the 3 Charge, it has been contended that there was no
independent evidence to establish that the petitioner had misused his
account for facilitating third party transactions. According to the writ
petitioner the mere routing of funds through an account, in absence of
any further material demonstrating misconduct, could not have
formed the basis of adverse finding against him. That, neither any
unjust enrichment or mala fide motive of the petitioner could not be
proved, nor there was any specific complaint in this regard by any
customer or other person, lodged against the petitioner. A decision of
the Supreme Court is relied on in United Bank of India versus
Biswanath Bhattacharjee (reported at 2022 13 SCC 329) ,
where the Court has held that despite the position of law being settled
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about the limited scope of judicial review as to the materials and
findings in a disciplinary proceeding, but 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 could not
have been rendered by any reasonable person placed in like
circumstances, the remedies under Article 226 are available and
intervention is warranted.
18. Ms. Deblina Lahiri, learned advocate appearing for the respondents
opposes the writ petition and submits that the disciplinary
proceedings were conducted in accordance with law and that the
findings recorded against the petitioner are supported by the materials
adduced in the enquiry.
st
19. Insofar as the 1 Charge is concerned, it is submitted that during the
enquiry it stood established that cash deposits aggregating to Rs.4.20
lakh had been made in the accounts connected with the petitioner
within a few days of demonetisation. It is contended that the petitioner
had not submitted his Assets and Liabilities Statements for the
relevant years and that, having regard to his approximate monthly
income and length of service, the deposits were reasonably found to be
disproportionate to his known sources of income. According to the
respondents, the enquiry report as well as the order of the disciplinary
authority adequately dealt with the materials relevant to the said
charge.
nd
20. With regard to the 2 Charge, learned advocate submits that the
petitioner had swapped specified bank notes amounting to Rs.2.92
lakh on different dates during the demonetisation period in disregard
of the RBI guidelines then in force. It is contended that the petitioner
was duty-bound to adhere to the limits prescribed for exchange of
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specified bank notes and that separate written instructions of the
Bank prohibiting such swapping were not necessary. The respondents
further contend that the evidence of PW-1 has been selectively relied
upon by the petitioner and that, when read in its entirety, the
deposition referred to the RBI circulars applicable to the transactions
in question.
21. It is further submitted that a departmental enquiry is not governed by
the strict standard of proof applicable to a criminal trial. The charge of
misconduct is required to be established on the basis of
preponderance of probabilities and upon the existence of material from
which a reasonable person could arrive at the conclusion that the
misconduct had been committed.
rd
22. As regards the 3 and final Charge, Ms. Deblina Lahiri learned
advocate submits that the evidence of the witnesses established that
the petitioner had utilised his salary account as an intermediary
account for facilitating transactions on behalf of third parties and had
thereby extended undue accommodation to outsiders by circumventing
the applicable RBI guidelines. Upon consideration of the relevant
documents, evidence and defence of the petitioner, the disciplinary
authority concurred with the Enquiry Officer that the said charge
stood partly proved.
23. The challenge to the punishment is also disputed. It is submitted that
there is no absolute prohibition under Rule 6 of the 2002
Memorandum, against imposing more than one form of punishment
where separate acts of misconduct have been proved. Reliance is
placed upon Rule 9, which provides that more than one punishment
st nd
shall not be imposed in respect of any one charge. Since 1 and 2
rd
Charges were proved and the 3 Charge was partly proved, the
respondents contend that the disciplinary authority did not exceed its
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jurisdiction in imposing the punishment with reference to Rules 6(e)
and 6(f). It is further submitted that the use of the word “or” in Rule 6
does not necessarily make the alternatives mutually exclusive in all
circumstances as a matter of course.
24. Learned advocate lastly submits that the allegation of non-application
of mind by the disciplinary and appellate authorities is without
substance. The Appellate Authority, after considering the records and
the grounds urged by the petitioner, found that no new material had
been produced warranting interference with the disciplinary order and
independently concluded that the punishment imposed was
commensurate with the gravity of the charges proved. The respondents
accordingly contend that neither the disciplinary order nor the
appellate order calls for interference in exercise of the writ jurisdiction
of this Court.
25. Ms. Deblina Lahiri for the respondent/Bank has referred to the
following judgments, to buttress his argument:
(i) Union of India v. M. Duraisamy (2022) 7 SCC 475 where the
Court has held that the High Court’s jurisdiction to examine the
proportionality of punishment imposed by a departmental authority is
limited. A reasoned order of punishment cannot be interfered with
merely on considerations of sympathy or sentiment. That where the
prescribed procedural requirements have been duly complied with and
the misconduct stands proved, courts would ordinarily refrain from
interfering with the quantum of punishment.
(ii) Deputy General Manager (Appellate Authority) v. Ajai Kumar
Srivastava (2021) 2 SCC 612 where similar proposition was settled
that judicial review of disciplinary proceedings under Articles 226, 32
and 136 is confined to correcting errors of law, procedural
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irregularities, manifest injustice, or violations of natural justice.
Constitutional Courts do not act as appellate authorities and cannot
re-adjudicate the disciplinary matter on its merits. That, judicial
review is concerned with the legality and fairness of the decision-
making process, not with the merits or correctness of the decision
itself.
(iii) Union of India v. P. Gunasekaran (2015) 2 SCC 610 has been
referred to where the Court has considered the scope for the High
Court to interfere into the disciplinary proceeding. The Court finds that
the High Court’s review of disciplinary proceedings is confined to
examining whether the enquiry was conducted by a competent
authority in accordance with prescribed procedure and principles of
natural justice, and whether the findings are free from irrelevant or
extraneous considerations. Interference is warranted where material
evidence has been wrongly excluded, inadmissible evidence has
improperly influenced the decision, the findings are based on no
evidence, or the conclusion is so arbitrary or unreasonable that no
reasonable person could have reached it.
(iv) Income Tax Officer, Cuttack v. Biju Patnaik 1991 Supp (1)
SCC 161 , has been relied on while responding to the argument of the
petitioner regarding absence of mindful consideration of the report of
enquiry by the Disciplinary as well as the Appellate Authorities, that
the Court holds therein that in administrative proceedings, an order
does not become invalid merely because it does not expressly record
the authority’s satisfaction regarding the requisite facts. If such
satisfaction is evident from the underlying record, the notice or order
cannot be held illegal solely for want of an express recital.
(v) Boloram Bordoloi v. Lakhimi Gaolia Bank (2021) 3 SCC 806
has been relied on in the similar context where the Court finds where
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the disciplinary authority concurs with and accepts the findings of the
enquiry officer, it is not required to record elaborate or separate
reasons while imposing punishment. The enquiry report and the
findings contained therein constitute the basis of the disciplinary
order, and no further detailed reasoning is ordinarily necessary.
(vi) Union of India v. Dalbir Singh (2021) 11 SCC 321 is the other
judgment referred to by the respondent, which principally deals with
the standard of proof in a disciplinary proceeding. The Court has held
that while a criminal conviction requires proof of guilt beyond
reasonable doubt, misconduct in disciplinary proceedings may be
established on the lower standard of preponderance of probabilities, on
the basis of which departmental punishment may validly be imposed.
26. At the very outset of analysation of facts with relation to the legal
principles settled, let the relevant provisions under Rule 6 of the 2002
of the Memorandum be quoted, to facilitate further discussions, which
is as follows:
“6. An employee found guilty of gross misconduct may:
(e) be brought down to lower stage in the scale of pay up to a
maximum of two stages’, or
(f) have his increment/s stopped with or without cumulative effect; or
”
27. Two mutually distinguishable questions are involved in this case: first,
whether the disciplinary findings are amenable to interference under
Article 226 of the Constitution; and secondly, whether the penalty
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actually imposed is legally permissible in view of mutually exclusive
character of Rules 6(e) and Rule 6(f) of the Memorandum of Settlement
dated April 10, 2002, if at all. The controversy, in the opinion of this
Court, requires a distinction to be maintained between the permissible
limits of judicial review over the findings recorded in a disciplinary
proceeding and the independent question as to whether the
punishment ultimately imposed is authorised by the governing service
provisions. The two questions operate in different spheres. While the
former concerns the legality of the decision-making process and the
sustainability of the findings recorded by the competent authority, the
latter concerns the existence and extent of the disciplinary authority's
power to impose a particular form of penalty. A finding of misconduct,
even if otherwise sustainable, cannot dispense with the requirement
that the punishment imposed therefor must conform to the governing
rules.
28. The decision of the Hon'ble Supreme Court in Commissioner of
Customs, Central Excise and Service Tax, Patna (supra) , relied
upon by the petitioner, emphasises that where the language of a
statutory provision is plain and unambiguous, the same must
ordinarily be given effect to in its natural and grammatical meaning.
The Court cannot, merely on the ground of perceived inadequacy or
inconvenience, introduce a meaning which the provision does not
reasonably bear. In particular, where the legislature or the rule-
making authority has consciously employed the expression “or” to
separate distinct alternatives, the Court cannot ordinarily substitute
the same with “and” so as to enlarge the scope of the provision. The
principle assumes particular significance where the provision in
question prescribes the permissible forms of disciplinary punishment
and, consequently, delineates the authority's power to penalise an
employee.
Page 17 of 28
29. The decision in Biswanath Bhattacharjee (supra) , relied upon by the
petitioner, recognises that although the scope of judicial review over
disciplinary findings is limited, Constitutional Courts are not
precluded from intervening where the findings are unsupported by
evidence, where relevant material has been ignored or irrelevant
material has been taken into consideration, where the decision is
vitiated by mala fides, or where the conclusion is so unreasonable or
perverse that no reasonable person could have arrived at it. The
principle, therefore, does not confer upon the disciplinary authority an
immunity from judicial scrutiny; rather, it confines such scrutiny to
recognised grounds of judicial review and excludes a mere substitution
of the Court's assessment of the evidence for that of the competent
authority.
30. The principles emerging from judgments relied on by the respondent in
M. Duraisamy (supra) , Ajai Kumar Srivastava (supra) and P.
Gunasekaran (supra) are well settled. In exercise of jurisdiction
under Article 226 of the Constitution, the High Court does not sit as
an appellate authority over a departmental enquiry and cannot
undertake a fresh assessment of the evidence merely because another
view may be possible. Judicial review is directed principally towards
the legality of the decision-making process, observance of the
prescribed procedure, compliance with the principles of natural
justice, and the existence of legally sustainable material supporting
the findings. The Court is not ordinarily entitled to interfere with the
quantum of punishment merely on considerations of sympathy,
personal hardship or its own perception of what would constitute a
more appropriate penalty.
Page 18 of 28
31. The decisions in Biju Patnaik’s case (supra) , and in Boloram
Bordoloi (supra) further elucidate the approach to be adopted while
examining orders passed by administrative and disciplinary
authorities. An administrative order does not necessarily become
invalid merely because the requisite satisfaction has not been
expressed in a particular formula, provided such satisfaction is
discernible from the underlying record. Similarly, where the
Disciplinary Authority accepts the findings of the Enquiry Officer, it is
not invariably required to reproduce the entire reasoning of the
enquiry report or to furnish elaborate independent reasons for every
conclusion. The question is whether the decision, read in the context
of the enquiry report and the materials considered, demonstrates a
lawful and genuine application of mind. The decision in Dalbir
Singh’s case (supra) , reiterates that misconduct in a departmental
proceeding is established on the standard of preponderance of
probabilities and not on the standard of proof beyond reasonable
doubt applicable to a criminal trial. The disciplinary authority must,
nevertheless, arrive at its conclusion on the basis of material having a
rational probative nexus with the charge.
32. Tested against the aforesaid principles, the petitioner's challenge to the
findings recorded in the disciplinary proceeding does not, on the
materials placed before this Court, disclose a ground warranting
interference. The record indicates that the petitioner was initially
called upon to explain the cash deposits in his accounts and was
thereafter served with a show-cause notice containing three
allegations. A formal charge-sheet followed on September 21, 2017.
The charges were subsequently modified by corrigenda dated January
3, 2018 and January 10, 2018, inter alia, by specifying the particulars
of the transactions relied upon in support of the allegations. The
petitioner submitted his explanations, and the disciplinary enquiry
Page 19 of 28
commenced on January 11, 2018. The Enquiry Officer submitted his
report on February 23, 2018, whereafter the petitioner was afforded an
opportunity to submit his objections. He submitted his written
objection on March 16, 2018. A further notice proposing punishment
was issued on March 27, 2018, to which the petitioner responded on
March 28, 2018, before the Disciplinary Authority passed its order on
March 29, 2018.
33. The aforesaid sequence of events demonstrates that the petitioner was
informed of the allegations against him, was afforded opportunities to
explain his position, and was permitted to submit his objections to the
enquiry report and the proposed punishment. No specific denial of a
material procedural opportunity, or other established violation of the
principles of natural justice, has been demonstrated from the record.
The fact that the petitioner disputes the conclusions drawn by the
Enquiry Officer or contends that his explanations ought to have been
accepted does not, by itself, establish that the enquiry was conducted
in violation of the prescribed procedure. The requirement of a fair
enquiry is a requirement of lawful process; it does not guarantee that
the explanation tendered by the delinquent employee must ultimately
prevail.
34. Insofar as the 1st Charge relating to cash deposits aggregating to Rs.
4,20,000/- is concerned, the petitioner contends that the explanations
offered by him, including the circumstances in which household
savings and cash held for domestic requirements were deposited
during the demonetisation period, were not duly considered. He
further contends that the assessment of his known sources of income
was defective because the Enquiry Officer allegedly confined his
consideration to the salary earned during the year 2016. The
respondent-Bank disputes the contention and maintains that the
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deposits, when considered alongside the petitioner's approximate
income, length of service and the absence of the requisite statements
of Assets and Liabilities, furnished a sufficient basis for the conclusion
reached in the enquiry. Upon consideration of the rival submissions,
this Court is unable to hold that the impugned findings in respect of
the first charge suffer from patent perversity or are demonstrably
based on no evidence. The petitioner's explanation constitutes material
for consideration, but the mere existence of an explanation does not
oblige the Enquiry Officer to accept it as conclusive. The question
whether the explanation sufficiently accounted for the deposits, and
what inference ought reasonably to be drawn from the financial
circumstances disclosed in the enquiry, essentially falls within the
domain of the fact-finding authority, provided its conclusion is
supported by relevant material. The Court cannot, in the exercise of
judicial review, substitute its own calculation or appreciation of the
petitioner's financial circumstances merely because the petitioner
proposes an alternative assessment of the evidence. Nor can the Court
infer non-application of mind solely from the fact that the authority did
not accept the petitioner's explanation.
35. With regard to the 2nd Charge concerning the swapping of specified
bank notes aggregating to Rs. 2,92,500/- during the demonetisation
period, the petitioner has questioned the identification and proof of the
instructions allegedly violated by him and has relied upon the evidence
of PW-1 in support of his contention that no prohibitory instruction
was established. The respondent-Bank maintains that the transactions
were undertaken in disregard of the applicable Reserve Bank of India
guidelines and that the petitioner's conduct must be assessed in the
context of the restrictions then governing the exchange of specified
bank notes. A fresh evidentiary enquiry cannot be undertaken by this
Court sitting in judicial review into the transactions or to determine
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afresh the precise inferences that ought to have been drawn from each
document and deposition. The relevant question is whether the finding
is wholly unsupported by evidence, has been arrived at by excluding
material evidence or relying upon impermissible material, or is
otherwise so unreasonable that no reasonable disciplinary authority
could have reached it. Upon the materials and submissions recorded
in the judgment, no such patent infirmity has been demonstrated as
would justify this Court in reopening the factual determination merely
because the petitioner disputes the interpretation placed upon the
evidence or the instructions applicable during demonetisation.
36. The challenge to the 3rd Charge, which concerns the alleged utilisation
of accounts belonging to other persons and the petitioner's salary
account as an intermediary for facilitating transactions, is similarly
founded principally upon a disagreement with the inferences drawn by
the Enquiry Officer. The petitioner contends that no independent
evidence established any wrongful gain, mala fide intention or misuse
of his position. The respondent-Bank, however, relies upon the
transaction records and the evidence considered during the enquiry,
on the basis of which the charge was held to be partly proved. The
absence of proof of pecuniary gain to the employee or financial loss to
the Bank cannot, by itself, be treated as conclusive proof that any
misconduct has not taken place. Equally, the mere routing of money
through an account cannot, without supporting material,
automatically establish misconduct. The issue must be determined on
the totality of the evidence and the nature of the obligation alleged to
have been breached. In the present case, however, the petitioner has
not established any patent perversity in the findings merely by
pointing to the absence of a demonstrated financial loss or by
advancing an alternative interpretation of the transactions. The Court
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finds no sufficient basis, within the recognised limits of judicial review,
to undertake a fresh appreciation of the evidence on this charge.
37. The petitioner's reliance upon Biswanath Bhattacharjee (supra)
does not assist him in securing a reappraisal of the factual findings in
the absence of an established ground of judicial review. The exceptions
recognised in that decision are material and enforceable limitations
upon administrative action; they do not transform the writ court into a
forum for a second departmental enquiry. The record does not disclose
such patent perversity, demonstrable non-consideration of material
evidence, consideration of irrelevant facts, or other manifest illegality
as would justify setting aside the findings of the Enquiry Officer and
the conclusions founded upon them.
38. It is, therefore, necessary to distinguish the petitioner's challenge to
the findings of misconduct from his challenge to the legality of the
penalty. The former does not warrant interference for the reasons
stated above. The latter, however, raises a distinct question of
interpretation of the governing provision and the limits of the
Disciplinary Authority's power. The restraint ordinarily exercised by a
Constitutional Court in examining factual findings cannot be invoked
to sustain a penalty which is not authorised by the applicable rules.
The legality of the punishment is a question of law, independently
examinable even where the underlying findings of misconduct are left
undisturbed.
39. Rule 6 of the Memorandum of Settlement dated April 10, 2002,
prescribes the forms of punishment that may be imposed upon an
employee found guilty of gross misconduct. The relevant clauses
provide that the employee may, under Rule 6(e), “be brought down to
lower stage in the scale of pay up to a maximum of two stages”, or
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under Rule 6(f), “have his increment/s stopped with or without
cumulative effect”. The word “or” appearing between these clauses is
not an incidental expression devoid of legal significance. It separates
two distinct forms of punishment: reduction to a lower stage in the
scale of pay and stoppage of increments, with or without cumulative
effect. The structure of the provision indicates that the rule-making
parties have separately identified the two forms of penalty and have
employed a disjunctive expression to distinguish them.
40. The principle of interpretation enunciated in Commissioner of
Customs, Central Excise and Service Tax, Patna (supra) is directly
relevant in this regard. Where a provision is clear and unambiguous,
the Court must give effect to the language employed and cannot
substitute a disjunctive expression with a conjunctive one merely to
enlarge the authority's power. The use of “or” cannot, in the present
context, be construed as though Rule 6(e) and Rule 6(f) were joined by
the word “and”, thereby authorising the imposition of both forms of
punishment as a composite penalty under the same operative
direction. Such an interpretation would fail to give due effect to the
distinction expressly maintained between the two clauses and would
permit an enlargement of the disciplinary power beyond the language
of the provision.
41. The contention of the respondent-Bank that the word “or” does not
invariably render every alternative, mutually exclusive, in all
circumstances does not alter the conclusion in the present case. The
meaning of a disjunctive expression must, of course, be ascertained in
the context of the provision as a whole. Here, however, the relevant
clauses enumerate distinct forms of punishment, and the disciplinary
authority has no demonstrated textual basis for treating them as
cumulative components of a single composite penalty. The Court is not
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called upon to determine whether distinct punishments may be
imposed in legally distinguishable circumstances where the governing
rules expressly permit such a course. It is sufficient to hold that the
present penalty, as framed, cannot be sustained by treating Rule 6(e)
and Rule 6(f) as though they jointly prescribe one permissible form of
punishment.
42. The respondent-Bank has further relied upon Rule 9 of the
Memorandum, which provides that more than one punishment shall
not be imposed in respect of any one charge. According to the Bank,
since the first and second charges were proved and the third charge
was partly proved, the Disciplinary Authority was competent to
combine the punishments referable to Rule 6(e) and Rule 6(f). This
submission does not satisfactorily answer the objection arising from
the language of Rule 6 itself. Rule 9, as relied upon by the respondent,
regulates the imposition of more than one punishment in respect of a
single charge. It does not convert the disjunctive alternatives in Rule
6(e) and Rule 6(f) into a single cumulative form of penalty, nor does it
dispense with the requirement that each punishment must be imposed
in accordance with the terms and limitations of the provision
authorising it. The fact that more than one charge has been found
proved cannot, by itself, validate a composite penalty whose legal basis
and operative terms do not conform to the governing rule.
43. The impugned order of punishment dated March 29, 2018, expressly
refers to Rule 6(e), but directs that the petitioner be reduced by two
stages in the scale of pay for two years, with the further stipulation
that he shall not earn increments during the period of such reduction.
The first component of the penalty is referable to Rule 6(e), whereas
the additional stipulation regarding the non-earning of increments
during the period of reduction is, in substance, referable to the distinct
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form of punishment contemplated under Rule 6(f). The legal character
of a penalty must be determined by its operative terms and
substantive effect and not merely by the clause mentioned in the
order. The express reference to Rule 6(e) cannot, therefore, be treated
as sufficient to bring the entire composite penalty within that clause
when its additional component has the character of the separate
punishment prescribed under Rule 6(f).
44. This Court is conscious that the Disciplinary Authority may have
intended, by the impugned order, to impose a punishment
proportionate to the gravity of the misconduct found proved.
Nevertheless, the objective of imposing an appropriate penalty cannot
justify the adoption of a form of punishment which is not permissible
under the governing provision. The authority's discretion operates
within the limits of the power conferred upon it. The principle that
punishment must be commensurate with the gravity of misconduct
does not authorise the disciplinary authority to disregard the
prescribed forms of penalty or to combine distinct alternatives contrary
to the governing rule. The proportionality of a punishment and its legal
permissibility are separate requirements, and both must be satisfied.
45. The finding of the Appellate Authority that the punishment imposed
was commensurate with the gravity of the charges does not cure this
defect. An appellate authority may examine the sustainability of the
findings, the fairness of the proceeding and the proportionality of the
penalty; it cannot, merely by affirming the punishment as appropriate,
validate a form of penalty which is inconsistent with the governing
provision. Consequently, although this Court finds no sufficient
ground to interfere with the findings of the Enquiry Officer on the
grounds urged by the petitioner, the penalty imposed by the
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Disciplinary Authority and affirmed by the Appellate Authority cannot
be sustained in its present form.
46. The appropriate relief, in the circumstances, is not to exonerate the
petitioner from the charges found proved or partly proved, nor to
substitute this Court's own assessment of the appropriate punishment
for that of the competent authority. The defect identified is confined to
the legal form of the penalty. The matter must, therefore, be remitted
to the Disciplinary Authority for reconsideration of the question of
punishment in accordance with Rule 6 of the Memorandum of
Settlement dated April 10, 2002. Let it therefore be directed that the
Disciplinary Authority shall consider whether, having regard to the
nature and gravity of the misconduct found proved, the appropriate
penalty should be imposed under Rule 6(e) or under Rule 6(f), and
shall pass a fresh, reasoned order in conformity with the governing
provision. The exercise shall be confined to reconsideration of the
penalty, and the findings of misconduct shall remain undisturbed by
reason of the present judgment.
47. Since the penalty in its present form cannot be sustained, the financial
consequences flowing from the impugned direction, including the
stoppage or withholding of increments during the period of reduction,
cannot continue to be retained merely on the strength of the penalty
now set aside. The amount or financial benefit withheld from the
petitioner by reason of the impugned penalty shall, accordingly, be
released forthwith, subject to such appropriate consequential
adjustment or recovery, if legally permissible, as may arise from the
fresh decision of the Disciplinary Authority. The release directed herein
shall not be construed as a final adjudication that the petitioner is
immune from any lawful financial consequence of a penalty, which
may subsequently be imposed in accordance with the governing rules.
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Any such consequence shall, however, arise only upon a fresh and
lawful decision of the competent authority and shall be implemented in
accordance with law.
48. For the reasons aforesaid, the writ petition succeeds in part. The order
of the Disciplinary Authority dated March 29, 2018, and the order of
the Appellate Authority dated December 27, 2018, are set aside to the
extent that they sustain the composite penalty combining the
consequences referable to Rule 6(e) and Rule 6(f) of the Memorandum
of Settlement dated April 10, 2002. The findings of misconduct
recorded in the disciplinary proceeding are not interfered with. The
matter is remitted to the Disciplinary Authority to reconsider the
penalty in accordance with the observations made herein and to pass a
fresh, reasoned order selecting the permissible form of punishment
under Rule 6(e) or Rule 6(f), as the case may be, having due regard to
the gravity of the misconduct proved and the applicable rules. The
authority shall not combine the two forms of punishment in the
manner held impermissible in this judgment.
49. Pending such reconsideration, the respondent-Bank shall forthwith
release the financial benefits withheld from the petitioner pursuant to
the penalty dated March 29, 2018, including the benefits withheld by
reason of the stoppage of increments under the impugned order. Such
release shall be without prejudice and subject to the Authority's power
to impose a fresh penalty permissible either under Rule 6(e) or Rule
6(f) of the 2002 Memorandum and to give effect to the lawful financial
consequences, if any, arising therefrom. Any subsequent withholding,
adjustment or recovery shall be permissible only in accordance with
the fresh order and the applicable Rules. The reconsideration shall be
undertaken expeditiously and, preferably, within eight weeks from the
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date of communication of this order. Until a fresh order is passed, the
penalty set aside herein shall not be acted upon or enforced.
50. There shall be no order as to costs.
51. All connected applications, if any, stand disposed of.
52. Urgent photostat certified copies of this judgment, if applied for, shall
be supplied to the parties upon compliance with all requisite
formalities.
(Rai Chattopadhyay, J.)