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Judgment
Dr. B.R. Sarangi, J.—The petitioner, while working as Manager, Inspection Centre at Kolkatta Office of the Indian Bank, was subjected to a disciplinary proceeding and subsequently, he was imposed a punishment of compulsory retirement by the Disciplinary Authority, opposite party No. 4 vide order dated 15.05.2008 (Annexure-10), confirmed by Appellate Authority, opposite party No. 3 vide order dated 03.10.2008 (Annexure-12) and reaffirmed by Reviewing Authority, opposite party No. 2 vide order dated 20.04.2009 (Annexure-14).
The short facts of the case, in hand, is that following a recruitment process, the petitioner was appointed as an Officer of the Indian Ban, a Nationalized Bank within the control of the Union of India. Considering his efficiency and sincerity, he was promoted from time to time. Finally he was promoted to Grade of Manager (Scale-II) Officer Post on 12.10.1992 and his services were placed at Inspection Centre of Bank at Kolkata. As Inspecting Manager, the petitioner has to conduct inspection of various Branches under Kolkata Region under whose jurisdiction Cuttack and Chhatrapur Branch come. The petitioner was issued with a communication on 20.07.2006 stating that he was given inspection work near his place of residence, i.e. Bhubaneswar. Instead of staying at Bhubaneswar, he stayed at Cuttack, Chhatrapur and Saudia branches during regular inspection and submitted lodging bills, which was irregular. Therefore, he was called upon to give explanation with regard to irregularity committed in T.A. Bill dated 24.03.2006 within a period of seven days. In response to said letter, the petitioner had replied on 24.07.2006 denying the allegation and stated that he has not been instructed to stay at Bhubaneswar while conducting inspection at Chatrapur, Cuttack and Saudia. Therefore, he preferred to stay at hotels as per his eligibility for smooth conduct and timely completion of the assigned job. Having not satisfied with the explanation submitted, a letter was issued on 18.12.2006 stating, inter alia, that the matter has been investigated into as per instruction of the higher authorities and it is observed that irregularities have been committed in submission of TA bills as per investigation reports. Therefore, he was again called upon to give explanation within a period of seven days vide Annexure-3. In response to the same, the petitioner also submitted his reply on 25.01.2007 reaffirming his contention raised earlier and also clarified that during the period from 10.01.2006 to 22.02.2006, he stayed in Hotel Neeladri, Mangalabag, Cuttack and submitted the bills with TA bills which was claimed by the hotel from time to time and the same was duly paid by him. He also further clarified that at Chhatrapur, he stayed at Sri Venkateswara lodge from 23.02.2006 to 09.03.2006 and paid the bills as claimed by the hotel. The room tariff, which he has paid, was as per demand of the hotel and he was not aware of the room tariff of various other rooms as stated in his letter itself. Therefore, attribution made with regard to improper maintenance and discrepancies in maintenance of register/records by hotel authority, he was no way concerned for such maintenance and therefore, he cannot be able to explain such irregularity, if any, committed by the hotel authority. Without appreciating the explanation given by the petitioner, he was issued with an article of charges dated 06.06.2007 vide Annexure-5, which are as follows:
"ARTICLE OF CHARGE
CHARGE No. 01.
You had, in the TA Bill dated 24.03.2006 for Rs. 73,933/- submitted, enclosed seven fake Guest''s Bills said to have been issued by Hotel Neeladri, Mangalabag, Cuttack-753001, made false statement that you had stayed in the said Hotel for 44 days from 10.01.2006 to 22.02.2006 and unlawfully claimed room charges at Rs. 700/- per day for 44 days amounting to Rs. 30,800/-.
CHARGE No. 02
You had, in the TA Bill dated 24.03.2006 for Rs. 73,933/- submitted enclosed one fake Bill said to have been issued by Sri Venkateswara Lodge, Chatrapur-761020, made false statement that you had stayed in the said Hotel for 14 days from 23.02.2006 to 09.03.2006 and unlawfully claimed room charges at Rs. 800/- per day for 14 days amounting to Rs. 11,200/-."
It is stated that the petitioner has acted dishonestly and wrongly claimed Rs. 42,000/-, therefore, his above acts constituted misconduct under Regulation 3(1) of Indian Bank Officer Employees? (Conduct) Regulations 1976 (in short, "Conduct Regulation, 1976"). Therefore, he had failed to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost honesty, integrity, devotion and diligence and do nothing which is unbecoming of an Officer employee. As per Regulation 24 of the Regulations 1976, breach of any of those regulations shall be deemed to constitute a misconduct and punishable under Regulation 4 of Indian Bank Officer Employees? (Discipline and Appeal) Regulations, 1976 (in short "Appeal Regulation, 1976"). The petitioner has also been served with statement of imputation basing on which the articles of charges were framed enclosing the list of documents relied upon and he was called upon to file his defence within a period of 15 days from the date of receipt of the charge sheet. In response to the said letter, the petitioner submitted his reply on 25.06.2007 vide Annexure-6 denying the allegations and reiterating the earlier contention stating that he was not in a position to explain the cause of discrepancies in maintenance of Hotel Record/Register, if any. He had only ensured the entry of his name in their register while he checked in to the hotel and paid the bill as claimed according to their tariff after receipt of the bill. It has also been stated that charge was framed on certain report with various presumptions and assumptions and, he was being prejudiced when he is totally innocent. Without being satisfied with the explanation submitted, the Bank appointed one R. Chakrapani, Senior Manager as Enquiry Officer, who had conducted the inquiry and submitted his report on 24.03.2008, vide Annexure-7 with a conclusion that basing on the documentary evidences produced in the enquiry, PO''s brief, defence brief and preponderance of probability, the charge/imputation No. 1 and charge/imputation No. 2 are proved. The copy of the said inquiry report has also been communicated to the petitioner calling upon him to give further explanation. In response to the same, the petitioner submitted his reply wherein it has been categorically indicated that the inquiring authority had transgressed its limitation to the extent that instead of burden of proving the charges being fallen on the shoulder of the Management, the Enquiry Authority himself has taken the responsibility and forgotten his role as a quasi-judicial authority and acted as if he is the representative of the Management and not an Enquiry Authority and he has travelled beyond the charge sheet and has drawn the conclusion by his wild imagination and suspicion and while drawing such conclusion, he has forgotten to discharge duty within the parameters of law, inasmuch as, no reasonable opportunity has been given to the petitioner to defend his case in conformity with the provisions of law and explain the situation in what circumstances the Enquiry Officer has came to such an erroneous finding against the charge/imputation levelled against the petitioner. But the Disciplinary authority without appreciating the fact in proper prospective and reiterating the findings of the Enquiry Officer imposed a penalty of compulsory retirement in terms of Regulation 4(h) of Appeal Regulation, 1976 vide order dated 15.05.2008, Annexure-10. Against the said order of imposition of penalty by Disciplinary Authority, the petitioner preferred an appeal before the appellate Authority and the appellate authority also confirmed such punishment stating that the Disciplinary Authority has imposed a lenient penalty of compulsory retirement from service of the Bank, although the case of the appellant-petitioner deserves enhancement of penalty and accordingly, dismissed the appeal by confirming the penalty of compulsory retirement imposed by the disciplinary authority. Against such confirmation of punishment imposed by disciplinary authority by the appellate authority, the petitioner filed an application before the Reviewing Authority, who also reaffirmed the same vide order dated 17.04.2009 (Annexure-14) without interfering with the punishment of compulsory retirement imposed by the disciplinary authority and confirmed/upheld by the appellate authority and dismissed the review application. Hence this application.
Mr. P.K. Mohanty, learned Senior Counsel for the petitioner strenuously urged that the Enquiry Officer has not appreciated the materials available on record and has relied upon the depositions of the witnesses and also conclusion arrived at by the Enquiry Officer in course of inquiry and stated that the deposition of the Hotel owners has not been given due weightage by the Enquiry Officer. Had weightage been given, then the Disciplinary Authority could not have come to such a conclusion of imposing punishment of compulsory retirement even though such facts have been disclosed before the Enquiry Officer and reviewing authority, the same has not been appreciated in proper perspective. Therefore, the imposition of penalty being harsh and shockingly disproportionate, this Court should interfere with the same. It is further urged that the petitioner having started his career as Probationary Officer in 1983 and has rendered unblemished service, due to some latches of the hotel authority on the entries made in the hotel register with regard to payment of bills, the petitioner should not have been imposed such a harsh punishment for no mistake of his own. If some error was detected then the Bank authority should have asked for refund of the said amount if at all they felt that the bills submitted are fake, but his services could not have been dispensed with. The petitioner has claimed the TA Bill as per his eligibility and within the Regulations/Rules of the Bank as per the expenses incurred by him. In addition to the same, it is urged that the proceeding was also not conducted with strict adherence to Rules/Regulations of the Bank, there is a gross violation of the principle of natural justice. The findings have been arrived at by the authority without any cogent reasons. Therefore, it is a case of no evidence. Hence he seeks for quashing of the orders passed by the authorities in Annexures-10, 12 and 14. It is further urged that this court has got the territorial jurisdiction to entertain this application and objection to that extent cannot sustain in the eye of law. To substantiate his contention he has relied upon the judgments of the apex Court in Navinchandra N. Majithia Vs. State of Maharashtra and Others, AIR 2000 SC 2966 : (2000) 4 CTC 60 : (2000) 10 JT 61 : (2000) 6 SCALE 262 : (2000) 7 SCC 640 : (2000) 3 SCR 82 Supp : (2000) 2 UJ 1502 : (2000) AIRSCW 3157 : (2000) 6 Supreme 114 , Om Prakash Srivastava Vs. Union of India (UOI) and Another, (2006) 7 JT 35 : (2006) 7 SCALE 318 : (2006) 6 SCC 207 : (2006) 3 SCR 803 Supp : (2006) 2 UJ 953 , Nirmala J. Jhala Vs. State of Gujarat and Another, (2013) 4 AD 144 : AIR 2013 SC 1513 : (2013) 138 FLR 227 : (2013) 6 JT 407 : (2013) LabIC 2113 : (2013) 2 LLN 25 : (2013) 4 SCALE 579 : (2013) 4 SCC 301 : (2013) 2 SCC(L&S) 270 : (2013) 2 SCT 740 : (2013) AIRSCW 1800 , R. Mahalingam Vs. The Chairman, Tamil Nadu Public Service Commission and Another, (2013) 4 AD 260 : AIR 2013 SC 2225 : (2013) 3 JT 425 : (2013) LabIC 1520 : (2013) 2 SCALE 673 : (2013) 14 SCC 379 : (2013) 2 SLJ 328 : (2013) AIRSCW 1468 , Union of India (UOI) and Another Vs. S.S. Ahluwalia, AIR 2007 SC 2952 : (2007) 10 JT 413 : (2007) 10 SCALE 344 : (2007) 7 SCC 257 : (2007) 2 SCC(L&S) 627 : (2007) 10 SCR 377 : (2008) 2 SLJ 174 : (2007) AIRSCW 5387 : (2007) 6 Supreme 521 , Sudarsan Giri Vs. Union of India (UOI) and Others, (2010) 109 CLT 426 : (2010) 2 ILR (Ori) 512 : (2010) 1 OLR 742 , State of U.P. and Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131 : (2010) 124 FLR 857 : (2010) 1 JT 617 : (2010) 2 LLJ 334 : (2010) 2 SCALE 42 : (2010) 2 SCC 772 : (2010) 1 SCC(L&S) 675 : (2010) 3 SCR 326 : (2010) 2 SLJ 59 : (2010) 2 SLR 159 : (2010) 2 UJ 788 , Roop Singh Negi Vs. Punjab National Bank and Others, (2009) 120 FLR 610 : (2009) 2 JT 176 : (2009) 2 LLJ 21 : (2009) 1 SCALE 284 : (2009) 2 SCC 570 : (2009) 1 SCC(L&S) 398 : (2009) 3 SLJ 14 : (2009) 4 SLR 78 : (2008) 1 UJ 183
Per contra Mr. S.K. Dey, learned counsel appearing for opposite parties, strenuously urged that since there is a concurrent finding of facts with regard to irregularities and illegalities committed by the petitioner, this Court should not sit as appellate authority over the orders passed by the fact finding authority and interfere with the concurrent finding of facts and the scope of this court in exercise of power of judicial review to interfere with the imposition of penalty against the delinquent officer is very limited. It is further urged that this Court has no jurisdiction to entertain this petition as the cause of action arises while the petitioner was serving at Kolkata. Merely because the inquiry was conducted so far as the petitioner''s stay at Cuttack and Chhatrapur hotels is concerned, that ipso facto cannot confer a jurisdiction on this Court to hear this matter. It is further urged that no procedural irregularity has been committed by the authority while conducting the inquiry and there is no question of violation of principles of natural justice in any manner. Assuming this Court has jurisdiction to entertain this petition, on merits also this Court cannot disturb the findings arrived at by the fact finding authority in enquiry proceeding, subsequently by disciplinary authority, appellate authority and reviewing authority. In order to substantiate his case, he has relied upon the judgments of Supreme Court in Bank of India and Others Vs. T. Jogram, AIR 2007 SC 2793 : (2007) 115 FLR 15 : (2007) 9 JT 584 : (2007) 9 SCALE 549 : (2007) 7 SCC 236 : (2007) 2 SCC(L&S) 615 : (2007) 8 SCR 763 : (2008) 2 SLJ 169 : (2007) AIRSCW 5069 : (2007) 5 Supreme 801 , Paitrus Ekka Vs. The State of Jharkhand and The Accountant General .
Considering the above facts pleaded by the parties and after going through the records, the following issues emerge for consideration.
"(i) Whether this Court has got jurisdiction to entertain this petition?
(ii) Whether there is any error in the finding arrived at by Disciplinary Authority, Appellate Authority and Review Authority ? and;
(iii) Whether there is any commission of procedural irregularities while coming to such finding and whether principles of natural justice have been followed?"
Mr. S.K. Dey, learned counsel for the opposite parties strenuously urged that while the petitioner was serving at Regional Office, Kolkata, proceeding was initiated against him and therefore, this Court has no jurisdiction to entertain this application. It is further urged that merely because enquiry has been conducted at Cuttack and Chhatrapur, that ipso facto cannot confer jurisdiction on this Court to adjudicate the matter. He has referred to paragraph 6 of the judgment in Paitrus Ekka (supra), which reads as follows :
"The expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and proved constitute the cause of action. It means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively. It would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. For every action there has to be a cause of action, if not, the plaint or petition, as the case may be, shall be rejected summarily. The entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree, is the material facts. The material facts is also known as integral facts. All necessary facts must form an integral part of the cause of action. Unless the facts pleaded are such as have a nexus or relevance with the lis that is involved in the case, they cannot give rise to a cause of action within the Court''s territorial jurisdiction. The facts which have no bearing with the lis or dispute involved in the case, do not give rise to cause of action."
Referring to the judgments of the apex Court in Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd., (1994) 4 SCC 710 (para-2), Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, (1994) 5 JT 1 : (1995) 109 PLR 245 : (1994) 3 SCALE 90 : (1994) 4 SCC 711 : (1994) 1 SCR 252 Supp and Additional General Manager/Human Resource Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, AIR 2007 SC 2048 : (2007) 4 CTC 427 : (2007) 114 FLR 212 : (2007) 6 JT 630 : (2007) 7 SCALE 112 : (2007) 5 SCC 336 : (2007) 2 SCC(L&S) 152 : (2007) 6 SCR 388 : (2007) 2 UJ 686 : (2007) AIRSCW 3111 : (2007) 5 Supreme 174 , it is submitted that since the Jharkhanda High Court held that cause of action arises within the territorial limits of the State of Jharkhanda, this Court has no jurisdiction to entertain this application.
Mr. P.K. Mohanty, learned Senior Counsel per contra referred to Navinchandra N. Majithia (supra) in paragraphs 7, 8, 33 to 37 of which, the apex Court has held as follows:
"7. The object of the amendment by inserting clause (2) in the Article was to supersede the decision of the Supreme Court in Election Commission, India Vs. Saka Venkata Subba Rao and, AIR 1953 SC 210 : (1953) 4 SCR 1144 and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which "the cause of action, wholly or in part, arises" and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts.
"Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action wholly or in part arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the Courts. As per that section the suit could be instituted in a Court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean "the bundle of facts which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court."
From the provision in clause (2) of Art. 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
In legal parlance the expression ''cause of action'' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person. (Black''s Law Dictionary).
In Stroud''s Judicial Dictionary a ''cause of action'' is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment.
In ''Words and Phrases'' (fourth edition) the meaning attributed to the phrase ''cause of action'' in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf.
A Bench of three learned Judges of this Court in the case of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, (1994) 5 JT 1 : (1995) 109 PLR 245 : (1994) 3 SCALE 90 : (1994) 4 SCC 711 : (1994) 1 SCR 252 Supp , considered at length the question of territorial jurisdiction under Art. 226(2) of the Constitution of India. Some of the relevant observations made in the Judgment are extracted hereunder (Paras 5 and 6 of AIR SCW) :
Clause (1) of Art. 226 begins with a non obstante clause -notwithstanding anything in Art. 32 - and provides that every High Court shall have power "throughout the territories in relation to which it exercises jurisdiction", to issue to any person or authority, including in appropriate cases, any Government. "Within those territories directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Art. 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Art. 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition.
It is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh,((1889) ILR 16 Cal 98) Lord Watson said :
"........... the cause of action has no relation whatever to the defence which may be set up the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court."
In OM Prakash Srivastava (supra), the apex Court has also taken into consideration various pronouncements of the apex Court given at different times including Oil and Natural Gas Commission (supra). In paragraphs 15, 16 and 17, the apex Court has held as follows :
"15. In Halsbury''s Laws of England (4th Edn.) it has been stated as follows:
"''Cause of action'' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ''Cause of action'' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
As observed by the Privy Council in Payana Reena Layana Saminathan Chetty and Another vs. Pana18 CWN 617 (Privy Council) , the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arise from the same transaction. One great criterion when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions. (See Mohammad Khalil Khan and Others vs. Mahbub Ali Mian andAIR 1949 78 (Privy Council)
It would be appropriate to quote para 61 of the said judgment, which reads as follows:
"61. Xx xx xx xx
(1) The correct test in cases falling under Order 2 Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit''. (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum(1967) 11 Moo 1 551 (P.C.)
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Rea v. Brown (1889) 22 Q.B.O. 138)
(3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsoon v. Nurnphroy (1984 14 Q.B.O. 141)
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsoon v. Nurnphroy)
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ... to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. (Mst. Chand Kour v. Pratap Singh (1887) 15 I.A. 185 (PC). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2 Rule 2) where plaintiff made various claims in the same suit."
Considering the law laid down by the apex Court as discussed above and taking into consideration the provisions contained in Article 226(1)(2) of the Constitution of India, and examining the same in the case at hand, it reveals from the record that the allegations against the petitioner as per the charge relate to the inspection of Branches of the Bank at Cuttack and Chhatrapur, which are within the State of Odisha. The enquiry in the proceeding was also conducted at Indian Bank, Cuttack Branch on 10.1.2008 and Indian Bank, Chhatrapur Branch on 11.1.2008, which has been reflected in the findings of the Enquiry authority. Since the entire episode and the cause of action arises out of the same transaction even though the petitioner was rendering service at Kolkata, but the enquiry having taken place within the territorial jurisdiction of this Court and satisfied the requirement of Article 226, the inevitable conclusion would be that this Court has jurisdiction to entertain the writ petition and adjudicate the same in view of the law laid down by the apex Court as mentioned supra. The question No. (i) is answered accordingly.
With reference to question Nos. (ii) and (iii), Mr. P.K. Mohanty, learned Sr. Counsel for the petitioner strenuously urged that the findings arrived at by the Enquiry Officer is contrary to the provisions of law inasmuch as gross procedural irregularities have been committed while conducting such enquiry and also there is non-compliance of the principles of natural justice. He has referred to Regulation 4 of the Appeal Regulation, 1976, which deals with ''Penalties''. "Compulsory retirement" as mentioned in Clause(h) of Regulation-4 is coming within the category of "Major Penalties". Regulation 6 deals with the procedure for imposing major penalties. Sub-Regulation (3) of Regulation 6 reads as follows:
"3. Where it is proposed to hold an inquiry, the Disciplinary Authority shall, frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, list of documents relied on along with copy of such documents and list of witnesses along with copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit, within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence."
Referring to the aforementioned provisions, it is urged that where it is proposed to hold an enquiry, the disciplinary authority shall frame definite and distinct charges on the basis of the allegations made against the officer-employee. The articles of charges with statement of allegations, list of documents relied upon along with the copy of such documents and list of witnesses along with copy of the statement of witnesses, if any, on which they are based, shall be communicated in writing to the officer-employee. Applying the said Regulation to the present context, it is urged that though the petitioner was served with charge-sheet on the basis of the allegations made against him along with the articles of charges together with the statement of allegations, but no list of documents relied upon along with such documents and list of witnesses had been supplied to him. Therefore, the entire enquiry proceeding is vitiated due to non-compliance of the provisions contained under sub-Regulation (3) of Regulation 6. As it appears from the charge-sheet in Annexure-5 though the petitioner was served with charge-sheet alleging misconduct under Regulation 3(1) of the Conduct Regulation, 1976 and has been provided with statement of imputation with the articles of charges framed against him and the list of documents relied upon for framing of the charges, but has not been provided with the list of witnesses to be examined along with copy of the statement of witnesses, if any, on which they are based. While conducting enquiry, opportunity was given to the petitioner to cross-examine the witnesses, but at no point of time the petitioner raised any objection to the extent that he has not been supplied with the list of witnesses along with the charges framed against him. Without raising any objection if the petitioner has participated in the proceeding itself, subsequently, he cannot turn around and say that the proceeding is vitiated due to non-supply of the list of witnesses along with the memorandum of charge.
It is further urged that the allegations made in the charges have not been defined in any of the misconducts as spelt out in the Conduct Regulation, 1976. Reference has also been made to Regulation 6 of the Conduct Regulation, 1976 and also the provisions contained in Regulations 3,4,5, and 7 and it is urged that the allegations in the memorandum of charge do not come within the purview of any of the misconducts mentioned in the above provisions, which has been seriously disputed by Mr. S.K. Dey, learned counsel for the opposite parties. He states that the conduct of the petitioner is coming within the definition of Regulation 3 of the Conduct Regulation, 1976. The petitioner being an employee of the Bank is to discharge his duties with utmost devotion, honesty and integrity and with diligence. If the allegation of charges are proved or established, it cannot be construed that the petitioner has acted honestly and diligently and with integrity and devotion. Therefore, the allegations made against the petitioner come within the fold of Regulation 3(1) of the Conduct Regulation, 1976.
From per the materials available on record, it appears that the concurrent finding of facts has been given by the enquiry authority, appellate authority and reviewing authority. It is well settled principles of law that this Court is not sitting as an appellate authority over the findings of the authorities mentioned above, rather the jurisdiction of this Court is very limited to the extent that to show any procedural irregularities while conducting enquiry so as to interfere with the same.
The apex Court in Nirmala J. Jhala (supra) has considered the facts with regard to the jurisdiction of this Court under Article 226 of the Constitution for judicial review by fixing its parameters as dealt with in paragraph-6. Clause (III) of the said paragraph reads as under:
"III. Scope of Judicial Review:
(i) It is settled legal proposition that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based 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. (Vide: State of Tamil Nadu and another Vs. S. Subramaniam, (1996) 1 AD 1024 : AIR 1996 SC 1232 : (1996) 2 JT 144 : (1996) LabIC 1046 : (1996) 1 SCALE 810 : (1997) 7 SCC 509 : (1996) 7 SCC 509 : (1996) 1 SCR 968 ; R.S. Saini Vs. State of Punjab and Others, AIR 1999 SC 3579 : (1999) 6 JT 507 : (1999) 2 LLJ 1415 : (1999) 5 SCALE 427 : (1999) 8 SCC 90 : (1999) SCC(L&S) 1424 : (1999) AIRSCW 3587 : (1999) 7 Supreme 612 ; and Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, AIR 2006 SC 1214 : (2006) 108 FLR 1108 : (2006) 2 JT 82 : (2006) 1 LLJ 1108 : (2006) 2 SCALE 12 : (2006) 2 SCC 373 : (2006) SCC(L&S) 316 : (2006) 1 SCR 911 : (2006) 2 SLJ 294 : (2006) AIRSCW 734 : (2006) 1 Supreme 569 .
(ii) In Zora Singh, AIR 1971 SC 1537 : (1971) 3 SCC 834 , this Court while dealing with the issue of scope of judicial review, held as under :
"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."
(Emphasis added)
(iii) The decisions referred to hereinabove highlights clearly, 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 opinion. The Court does not sit as a Court of Appeal but, it merely reviews 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, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, 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.
IV. Punishment in corruption cases :
In Municipal Committee, Bahadurgarh Vs. Krishan Behari and others, (1996) 3 AD 34 : AIR 1996 SC 1249 : (1996) 73 FLR 1429 : (1996) 3 JT 96 : (1996) LabIC 1056 : (1996) 2 SCALE 698 : (1996) 2 SCC 714 : (1996) 2 SCR 827 : (1996) 1 UJ 799 , this Court held as under :
"In a case of such nature - 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."
In Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006 SC 2730 : (2006) 4 CTC 345 : (2006) 110 FLR 931 : (2006) 6 JT 428 : (2006) 3 LLJ 232 : (2006) 7 SCALE 163 : (2006) 6 SCC 187 : (2006) SCC(L&S) 1290 : (2006) 3 SCR 585 Supp : (2007) 1 SLJ 211 : (2006) AIRSCW 3701 : (2006) 5 Supreme 573 , this court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal.
Similar view has been reiterated in U.P. State Road Transport Corporation Vs. Vinod Kumar, (2007) 13 JT 404 : (2008) 1 LLJ 676 : (2008) 1 SCC 115 : (2008) 1 SCC(L&S) 1 : (2007) 1 SCR 1018 ; and U.P. State Road Transport Corporation Vs. Suresh Chand Sharma, (2010) 126 FLR 157 : (2010) 6 JT 320 : (2010) 6 SCALE 87 : (2010) 6 SCC 555 : (2010) 5 SLR 128 .
Similarly in R. Mahalingam(supra), the apex Court laid down the following parameters for judicial review (para-12):
" x x x x x The Court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court."
In Union of India and Anr. v. S.S. Ahulwalia (supra), the apex Court also fixed the guidelines for judicial review. Paragraph 7 of the said judgment is quoted below:
"7. The learned single Judge has also set aside the order by which a penalty of 10% deduction in pension for one year had been imposed. This part of the order has also been affirmed by the Division Bench. It may be mentioned here that charge No. I was found to be partly proved and charge Nos. II, III and IV were found to be fully proved. The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty. In the present case the penalty imposed upon the respondent was very small, namely, 10% deduction from pension for one year. Thus there was hardly any occasion for the High Court to interfere with the order of penalty passed by the Competent Authority. However, having regard to the facts and circumstances of the case and specially to the fact that the penalty was a small one being 10% deduction from the pension for one year only, we do not want to interfere with that part of the order of the learned single Judge and also of the Division Bench."
Following the same, this Court in Sudarsan Giri (supra) in paragraphs 10 and 11 has held as follows :
"10. The scope for judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case, the Court is to remit the matter to the disciplinary authority for reconsideration of the punishment. Of course in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. (see. You One Maharia - JV through You One Engineering and Construction Company Ltd. and Another Vs. National Highways Authority of India, AIR 2007 SC 2954 : (2007) 3 ARBLR 293 : (2007) 10 JT 267 : (2007) 10 SCALE 148 : (2007) 7 SCC 704 : (2007) 10 SCR 17 : (2007) AIRSCW 5390 : (2007) 6 Supreme 363 .
The question of interference on the quantum of punishment has been considered by the Supreme Court in catena of Judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus, would violate the mandate of Article 14 of the Constitution. (See. Bhagat Ram Vs. State of Himachal Pradesh and Others, AIR 1983 SC 454 : (1983) LabIC 662 : (1983) 2 LLJ 1 : (1983) 1 SCALE 864 : (1983) 2 SCC 442 : (1983) 2 SLJ 323 , Ranjit Thakur Vs. Union of India (UOI) and Others, AIR 1987 SC 2386 : (1988) CriLJ 158 : (1987) 4 JT 93 : (1988) 1 LLJ 256 : (1987) 2 SCALE 773 : (1987) 4 SCC 611 : (1988) 1 SCR 512 : (1989) 1 SLJ 109 , Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 : (1994) 1 LLJ 604 : (1994) 3 SCC 755 Supp , B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 : (1995) 8 JT 65 : (1996) LabIC 462 : (1996) 1 LLJ 1231 : (1995) 6 SCALE 188 : (1995) 6 SCC 749 : (1995) 4 SCR 644 Supp : (1996) 1 UJ 80 .)"
In Roop Singh Negi (supra), the apex Court has held that a departmental proceeding is a quasi-judicial proceeding. So far as manner of proving the documents and evidence is concerned, it is held that mere production of documents is not enough, rather the contents of such documentary evidence has to be proved by examining the witnesses. Since the order of the disciplinary authority and the appellate authority entails civil consequence, the order must be based on recorded reasons. But while conducting departmental enquiry though provisions of the Evidence Act is not applicable in strict sense, enquiry has to be conducted according to the principles of natural justice.
In State of Uttar Pradesh and another v. Saroj Kumar Siha (supra) it has been held that the principles of natural justice has to be complied with in letter and spirit or else the entire proceeding is vitiated being violative of the principles of natural justice and mandatory rules.
Applying the above mentioned provisions and the law laid down by the apex Court and this Court to the present context, it appears that the petitioner has not made out a case in his favour with regard to the infraction of the principles of natural justice or procedural irregularities while conducting enquiry so as to interfere with the same and efforts have been made to scan the evidence basing upon which the enquiry report has been submitted, which has been concurred by the disciplinary authority, appellate authority and the reviewing authority and therefore, this Court refrains from making any observation with regard to the jurisdiction of this Court in exercise of the power of judicial review to scan the evidence, which has reached its finality on the basis of concurrent findings by all the fact finding authorities. The scope of judicial review being very limited in nature as mentioned above, applying the parameters to the present context, this Court is of the considered opinion that the findings of facts arrived at by the fact finding authority and subsequently reaffirmed by the disciplinary authority, appellate authority and reviewing authority, this Court is not sitting as an appellate authority over the findings to further scan the same, which is beyond its scope and purview. Accordingly, issue Nos. (ii) and (iii) are answered against the petitioner.
In view of the aforesaid facts and circumstances, in exercise of judicial review, this Court is not inclined to interfere with the concurrent findings arrived at by the fact finding authorities and to arrive at a different finding other than the finding arrived at by the competent fora.
For the foregoing reasons, while holding that this Court has jurisdiction to entertain the writ petition, this Court is not inclined to interfere with the concurrent finding of facts arrived at by the fact finding fora.
The writ petition stands disposed of. No cost.