Full Judgment Text
#20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 28/2010 & CM 632/2009
STATE BANK OF INDIA ..... Appellant
Through Mr. Rajiv Kapur
versus
S. ELHANCE ..... Respondent
Through Mr. H.K. Chaturvedi and
Ms. Anjali Chaturvedi,
Advocates
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Reserved on : 26 July, 2010
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% Date of Decision : 13 August, 2010
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
J U D G M E N T
MANMOHAN , J
1. Present Letters Patent Appeal has been filed challenging the
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judgment dated 22 September, 2009 passed in C.W.P. 4104/1993
whereby the learned Single Judge has not only set aside the finding of
the enquiry officer with regard to charges 1, 2, 5, 8(d), 8(e) and 9 but
has also set aside the penalty. Learned Single Judge had further
directed the appellate authority to reconsider the proportionality of
punishment within four months on the charges sustained by him.
LPA 28/2010 Page 1 of 6
2. Mr. Rajiv Kapur, learned counsel for the appellant submitted that
it was not permissible for the learned Single Judge to re-appreciate the
evidence which had been considered by the enquiry officer, disciplinary
authority and appellate authority. He submitted that the learned Single
Judge had erred in law by acting as a Court of appeal and interfering
with the findings of the enquiry officer, disciplinary authority as well as
appellate authority. In support of his submission, Mr. Kapur relied
upon State of Haryana & Anr. Vs. Rattan Singh (1977) 2 SCC 491;
B.C. Chaturvedi Vs. Union of India & Ors. (1995) 6 SCC 749, Bank
of India Vs. Degala Suryanarayana (1999) 5 SCC 762; Chairman &
Managing Director, United Commercial Bank & Ors. Vs. P.C.
Kakkar (2003) 4 SCC 364; Ganesh Santa Ram Sirur Vs. State Bank
of India & Anr. (2005) 1 SCC 13, Damoh Panna Sagar Rural
Regional Bank and Ors. Vs. Munna Lal Jain (2005) 1 LLJ 730; V.
Ramana Vs. A.P. SRTC, (2005) 7 SCC 338 and Ram Saran Vs. IG of
Police CRPF (2006) 2 SCC 541 .
3. Having heard Mr. Kapur at length, we are of the view that the
common thread running through all the aforesaid decisions is that the
Court should not interfere with the decision of the enquiry officer,
disciplinary authority and appellate authority unless they are
illegal/irrational or suffer from procedural impropriety or shock the
conscience of the court, in the sense that it defies logic or moral
standards. The Supreme Court has repeatedly adopted and reiterated
the test laid down in Associated Provincial Picture Houses Ltd. Vs.
LPA 28/2010 Page 2 of 6
Wednesbury Corpn., (1947) 2 All ER 680 (CA) wherein it has been
stipulated that courts do not examine the correctness of the choice made
by the enquiry officer, disciplinary authority and appellate authority but
only review the decision making process to see if there is any
deficiency in the same.
4. In fact, upon a perusal of the impugned order, we find that the
learned Single Judge has applied the aforesaid test stipulated by the
Apex Court and has given cogent reasons for setting aside the findings
recorded by the enquiry officer with regard to charges 1, 2, 5, 8(d), 8(e)
and 9. The relevant portion of the impugned order is reproduced
hereinbelow :-
“14. To appreciate the aforesaid contentions, finding
returned by the Inquiry Officer on the charges against
the Petitioner, needs to be looked into for a limited
purpose. This Court is conscious of the fact that the
adequacy of the evidence is a domain, which is not to be
treaded upon, nor the evidence led has to be re-
appreciated by this Court. Relevance or quantum of
evidence is not required to be done. To judge the
correctness of the decision taken by the Disciplinary
Authority is also not required to be looked into. The
common thread running through all the afore referred
decisions cited before this Court is that the Court should
not interfere with Administrator‟s decision, unless it is
illogical or it suffers from procedural impropriety or it
shocks the conscious of the Court, in the sense that it
defies logic or moral standards. In nutshell, the Courts
should not substitute its decision with that of the
Administrator. The scope of judicial review is limited to
see whether there is deficiency in decision making
process. The Apex Court in “Indian Railways
Construction Co. Ltd. Vs. Ajay Kumar” (2003) 4 SCC
579 , has noticed the consistent trend of judicial opinion
regarding scope for judicial interference in matters of
administrative decisions……
LPA 28/2010 Page 3 of 6
15. In the light of the aforesaid position of law, one
can conveniently classify under three heads, the grounds
on which administrative action is subject to control by
judicial review. The first head is “illegality‟, the second
„irrationality‟ and the third, „procedural impropriety‟.
These principles were highlighted by Lord Diplock in
“Council of Civil Service Union vs. Minister for the Civil
Service” (1984) 3 All.ER 935 (commonly known as
CCSU case) , which has been quoted with approval by the
Apex Court in the above referred case. Thus, I proceed
to test the impugned decision on the touchstone of
reasonableness.
16. On the first two charges, the finding returned are
that the Petitioner had not taken any permission to leave
the Station and had claimed reimbursement of medical
bills for treatment at Dehradun (outstation). Failure on
the part of the Petitioner to take the permission of
Competent Authority before taking treatment, outside the
Headquarter, would not amount to „misconduct‟, because
neither the Inquiry Authority nor the Appellate Authority
specified as to from which Authority the permission has
to be sought. In any case, it cannot be said that the
Petitioner had deliberately not sought the permission.
Therefore, the finding returned on these two charges are
clearly erroneous and liable to be quashed.
xxxx xxxx xxxx xxxx
24. The fifth charge relates to claiming of
reimbursement for treatment of „adenoids‟ by the
Petitioner and since it was not reimbursable, therefore,
this charge was found to be proved against the Petitioner
in the inquiry proceedings.
xxxx xxxx xxxx xxxx
26. In view of the above, it becomes clear that
„misconduct‟ means a conduct arising from ill motive
and acts of negligence, errors of judgments or innocent
mistakes, do not constitute „misconduct‟. It is nobody‟s
case that the Petitioner had deliberately taken
reimbursement of the medical bill pertaining to treatment
of „adenoid‟ while knowing that it was not admissible.
Therefore, the conduct of Petitioner claiming
reimbursement for the treatment of „adenoid‟ does not
fall within the mischief of „misconduct‟ and so finding
returned on this charge is manifestly erroneous and is
liable to be quashed.
LPA 28/2010 Page 4 of 6
27. ………The eighth charge is sub-divided into four
parts. Inquiry Officer had found that charge 8(a), 8(b)
and 8(c) do not stand proved and the findings returned
on charge 8(d) and 8(e) do not appear to be in
consonance with these charges and therefore, these two
charges needs to be highlighted as under:-
“(d) In one of the bills the Stolin has been
mentioned as tablet although it is toothpaste.
(e) He has taken such a long treatment for
Pyorrhea, which is not possible as the medicines
(antibiotics) are quite strong and their prolonged
usage cannot be normally suggested by any
medical practitioner as it will lead to serious side
effects.”
28. The finding returned by the Inquiry Officer on the
aforesaid two charges, is as under:-
“Under the circumstances, and the deposition of
Defence Witness No.2, I hold this part of the
charge as not proved. It is established that OPA
had purchased certain medicines without
prescriptions. Even the prescriptions are not
specific as these do not mention the No. of days,
the medicine is to be used etc.”
29. Aforesaid finding is quite generalized and does not
contain the necessary details to support the charge nor
the evidence referred to, does so. Clearly, the finding on
charge 8(d) and 8(e) disclose utter non-application of
mind not only by the Inquiring Authority but also by the
Appellate Authority. Thus, the finding on charges 8(d)
and 8(e) are liable to be quashed, being manifestly
arbitrary.
xxxx xxxx xxxx xxxx
31. Upon reading the ninth charge, it becomes
abundantly clear that this charge of Petitioner‟s wife
taking treatment under two different systems of
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Medicines on the same day, i.e., on 16 August, 1983,
being unlikely, is quite presumptive. The finding returned
of this charge is based upon surmises and conjectures for
the reason it proceeds on the assumption that it is not
possible to take treatment from two doctors at a time.
Where is the bar to taking treatment under two different
disciplines of medicine for different ailments at a time ?
There is utter non-application of mind by the Inquiry
Authority as well as by Appellate Authority, as neither in
LPA 28/2010 Page 5 of 6
the charge nor in the findings returned, it has been
alleged/concluded that for the one ailment, Petitioner‟s
wife had taken treatment in two different disciplines of
medicine at the same time. Therefore, the finding
returned on this charge, being illogical, is liable to be
quashed.”
5. Moreover, we are informed that in accordance with the impugned
nd
judgment dated 22 September, 2009, the appellate authority of
appellant-Bank has once again decided to maintain the punishment for
removal from service even on the charges sustained by the learned
Single Judge. Consequently, we find that no ground for interference in
the present appeal and accordingly, the same is dismissed but with no
order as to costs.
MANMOHAN, J
CHIEF JUSTICE
AUGUST 13, 2010
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LPA 28/2010 Page 6 of 6