Biswanath Bhattacharjee vs United Bank of India and Others

Tapan Mukherjee, J.—This appeal at the instance of the petitioner is directed against the judgment and order passed by Learned Single Judge in W.P. No. 1391(W) of 2004 dismissing the writ petition filed by the appellant-petitioner challenging the order of his dismissal from service passed in connection with disciplinary proceedings started against him. The petitioner was Manager of Chandabila Branch of United Bank of India in the District of Paschim Midnapore during the period of 14.12.88 to 30.5.90. Then he was transferred to different Branches of the Bank. While the said petitioner was posted as officer Bhawnipur Branch the disciplinary proceedings was started against him on the following Articles of charge:

During the tenure of your service as Manager of Bank''s Chandabila Branch from 14.12.1988 to 30.5.1990 you have failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duties with utmost integrity, honesty, devotion and diligence in that:

District Rural Development Agency (D.R.D.A.) Midnapore sent 4 (four) cheques to your branch in respect of subsidies on IRDP schedule with a total sum of Rs. 4, 68, 833/-. The said cheques were collected through bank''s Sepai Bazar Branch vide OCC No. 3/90 to 6/90 of your branch. Subsequently, on receipt of the proceeds you credited said amount to the marginal deposit a/c. on 28.2.1990 to the debit of CA advice No. 15/227902 for Rs. 4, 68, 833/- of the Bank''s Sepai Bazar Branch. But you did not enter the names and related amount of subsidies of all the beneficiaries of the said subsidies in the subsidy register. With malafide intention, you have not entered the names and amount of subsidies of the 12 (twelve) IRDP borrowers for Rs. 60,000/- (Rs. 5,000/- per borrower) relating to IRDP loan account Nos. 45/90 to 56/90. It led to a discrepancy of Rs. 60,000/- from the actual amount of subsidy received by you as stated above i.e. of total subsidy amount of Rs. 4, 68, 833/- received, the Subsidy Register shows a total figure of Rs. 4, 08, 833/- though subsidy of 12 IRDP borrower for Rs. 60000/- was received at the branch from DRDA, Midnapore through cheque No. 027911 dt. 25.12.1989 for Rs. 2, 40, 333/- (for 93 beneficiaries including said 12 IRDP borrowers) and credited to Marginal Deposit a/c. You have done so deliberately to conceal the fact with malafide intention and ulterior motive.

You sanctioned and disbursed IRDP loans under loan account No. SSI 45/90 to 56/90 to 12 borrowers with a project cost of Rs. 10000/- (Ten thousand) each out of which Rs. 5000/- was loan component and Rs. 5000/- subsidy component per borrower. Out of total amount of Rs. 1,20,000/- Rs. 60000/- was loan component and Rs. 60000/- was subsidy for the said 12 borrowers relating to IRDP loan account SSI/45/90 to 56/90 detains of which are given in annexure A. But with ulterior motive you disbursed the said loans and subsidies to 12 fictitious persons instead of to the original applicants who got sanction from DRDA and whose names appeared as borrowers in the loan ledger A/c. SSI 45/90 to 56/90, as certified by the present Pradhan of Chandabila Gram Panchayat, Shri Haradhan Bera.

The entire loan and subsidy amount for Rs. 1.20 lac of the said 12 IRDP beneficiaries under account No. SSI/45/90 to 56/90 had been misappropriated by you in connivance with Sri Subhendu Kumar Das, Ex Prodhan of Chandabila Gram Panchayat and Sri Madan Mohan Saha, Ex/CCG of Chandabila Branch. Although the bank''s loan components were subsequently liquidated subsidy amount of Rs. 60,000/- have been misappropriated by you.

You had deliberately removed the relative loan documents of 12 (twelve) a/cs. (loan a/c. No. SSI/45/90 to 56/90) including the subsidy list of DRDA, Midnapore jointly with Sri Madan Mohan Saha, Ex. CCG of the Branch to conceal the fact and to destroy documentary evidences of your above stated misdeed.

You sent demand drafts for Rs. 25000/- dt. 22.1.94 and Rs. 10000/- dt. 30.5.94 issued from our Basanti Branch and drawn on our Chandabila Branch to Sri Madan Mohan Saha, Ex. CCG of Chandabila Branch in his favour. The said drafts were credited to Sri Saha''s Jt.SB a/c. No. 780 and his another SB a/c. No. 222 on 27.4.94 and 30.6.94 respectively. Finally, at the instruction of Sri Saha, an amount of Rs. 25000/- was credited to Jt. SB account No. 1110 in the name of Sri Haradhan Bera and Sri Prafulla Mahato, the Pradhan and Upo-Pradhan, Chandabila Gram Panchayat respectively on 30.3.94 by debiting SB a/c. No. 222 of Sri Saha. Subsequently, the amount was withdrawn on 28.5.94 by Sri Bera from his Jt. SB a/c. No. 1110 and it has been revealed that on the same day, a total amount of Rs. 34,000/- was deposited in 28 loan accounts (small business loans) in cash. You remained silent in your reply dt. 20.6.96 in response to Bank''s letter of explanation dt. 13.4.96 in the aforesaid matter to suppress your misdeed in misappropriation of subsidy of Rs. 60000/- as stated earlier (vide para.3) in connivance with others.

During enquiry in connection with disciplinary proceedings the appellant pleaded innocence and denied the charges. The report was submitted by the Enquiry officer holding the appellant guilty of the charges. The appellant made representation against the said enquiry report. The appellant was dismissed by the order dated 7.10.2002. A departmental appeal was thereafter preferred by the appellant but the appellate authority confirmed the order of dismissal. A review application was also filed but the same was rejected. In the aforesaid circumstances, appellant herein filed a writ application and the learned Single Judge dismissed the said writ application subsequently. Being aggrieved by the judgment and order of the Learned Single Judge instant appeal has been preferred.

It has been contended by Sri Swapan Kumar Dutta, learned Senior counsel of the appellant that the appellant was found guilty in the enquiry proceeding on the basis of no evidence and purely on surmise and conjecture. The evidence before the enquiry officer did not establish the misconduct alleged in the charge-sheet. The said finding of the enquiry officer is perverse and consequently, the action of the disciplinary authority in dismissing the appellant from service is not sustainable.

Sri Dutta has further contended that the enquiry officer has been swayed by the photostat copy of a document purporting to be the admission of guilt of misappropriation of fund which was signed on 3.3.94 by Sri Subhendu Kumar Das, Ex-Pradhan and Sri Madan Mohan Saha, Ex-cashier in presence of Satikinkar Deb, the then Manager of the Bank. Sri Dutta also submitted that the said document was not signed by the appellant and the appellant was not present at the time of execution of the said document and he is not bound by the said document. Moreover, the document relied by the enquiry officer was not admitted into evidence and was marked ''X'' for identification and, therefore, the finding based on such document, according to Sri Dutta, cannot stand in law and the same causes prejudice to the appellant.

Shri Dutta has further contended that charge-sheet was issued with a closed mind and the conclusion drawn by the Enquiry Officer in the language of the charge-sheet shows that the said Enquiry Officer was definitely influenced by the expression used in the charge-sheet about the alleged guilt of the appellant.

Shri Dutta has specifically contended that the prosecution had withheld vital documents which were directed to be produced in the enquiry by the Enquiry Officer himself considering their relevancy.

It has further been submitted by Shri Dutta that delay in initiation of proceedings causes serious prejudice to the petitioner-appellant due to non production and loss of vital documents which would have established the innocence of the petitioner. Shri Dutta has contended that it was not the duty of the appellant as Manager to maintain the Subsidy Register and the same was maintained by the Cashier Madan Mohan Saha and as such the charge number 1 has not been proved. Learned Counsel of the appellant has further contended that out of twelve, 7 alleged borrowers deposed in the enquiry and were believed as genuine persons only on presumption and on the mere statement of Haradhan Bera, subsequent Pradhan and without any independent verification of the identity of the said 7 persons by calling for records from the D.R.D.A. or by following the procedure for identification of the borrowers.

So charge No. 2 has not been established, according to the said learned Counsel of the appellant.

Shri Dutta has contended that charge No. 3 relating to misappropriation could not have been proved since there is no evidence as to who liquidated the loan. If real loanee had liquidated the loan amount then there could not be any fictitious person. Shri Dutta has contended further that the charge No. 4 relating to removal of documents was not proved especially in view of the fact that the writ petitioner had left the branch in June 1990.

Shri Dutta has contended that charge No. 5 only relates to silence of the writ petitioner in reply to bank''s letter dated 20.6.96 in the matter of sending of demand drafts and crediting loan amounts and, therefore, the said charge has not also been proved. Shri Dutta has also contended that the disciplinary proceedings was started against the appellant after considerable delay when there was alleged loss of documents and such delay had certainly caused prejudice to the appellant. Shri Dutta urged before this Court that in inflicting punishment the disciplinary authority considered wrongly the past punishment of the appellant without even framing specific charge in this regard and thus the appellant was not given reasonable opportunity to meet the said charge. Learned Counsel of the appellant contended that the petitioner''s appeal and review in connection of the enquiry proceedings in respect of past punishment in earlier cases have not been disposed of and therefore, the bank could not rely on such past penalty orders which have not attained finality for the purpose of determination of the quantum of punishment.

Shri Dutta further contended that punishment of dismissal inflicted upon the appellant is disproportionate to the punishment of Sri Madan Mohan Saha, Cashier cum General (CCG) who was inflicted with minor penalty of reduction of 2 increments only despite his confession of misappropriation. It has been alleged that the disciplinary authority did not apply its mind at all and did not come to a separate finding with regard to the charges levelled against the appellant. Shri Dutta also submitted that the decision making process followed by the Enquiry Officer in arriving at the conclusion of guilt falls within the parameter of interference by judicial review. Learned Counsel of the appellant submitted that the findings of the Enquiry Officer are based on no evidence but on extraneous materials. Learned Counsel also submitted that even the materials collected during enquiry did not link the petitioner with the alleged misconduct and the Learned Single Judge did not consider the case of the writ petitioner in its true perspective. The enquiry was done with closed mind, according to the said learned Counsel of the appellant and as such the same has caused prejudice to the appellant and, therefore, the same cannot form the basis of the order of the disciplinary authority.

Shri Dutta relied upon the decision reported in 1993(2) CHN 103 (State Bank of India v. Tapan Kumar Das), Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, , Bareilly Electricity Supply Co. Ltd. Vs. The Workmen and Others, , State of Mysore Vs. S.S. Makapur, , Sher Bahadur Vs. Union of India (UOI) and Others, , Anil Kumar Vs. Presiding Officer and Others, , Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, , State of Mysore Vs. K. Manche Gowda, . Learned Senior counsel for the respondent Shri M.K. Basu has supported the judgment and order passed by the Learned Single Judge. He has contended that the appellant has been charge-sheeted thrice. The first disciplinary proceeding started in the year 1992 culminated in imposition of penalty of reduction of pay by 8 stages lower than the pay existing in the time scale. In 1997 said appellant was again charge-sheeted which also culminated in the final order of penalty of reduction of his basic pay by one stage lower in the time scale for a period of one year. Lastly, present charge-sheet for gross misconduct on the part of the appellant has been filed.

Shri Basu has further contended that the first charge levelled against the appellant is that he failed to take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity, honesty and devotion by not entering the names and related amount of subsidies of 12 IRDP borrowers in the subsidy register with malafide intention though he collected the total amount of Rs. 4, 68, 833/- for all the borrowers and credited the said amount to the marginal deposit amount on February 28, 1990. According to Mr. Basu, subsidy register (marked ''ME'' 12) clearly shows that names were not entered with malafide intention. "ME'' 7, an indent for IRDP certificate with the names of the borrowers certified by DRDA and Panchayat Somity, Chandabila shows the names of the said 12 borrowers. Debit cash vouchers being ME 16 to 27 show that names of 12 borrowers in question which were not entered in the subsidy Register ME 12 with malafide intention. MW-1, subsequent Manager of the branch has stated during enquiry that entries in ME 12 being the subsidy register was made on many occasions by Mr. M.M. Saha, C.C.G. and when the amount was debited in the said subsidy register the same was authenticated by the appellant and in case of 12 borrowers in question the appellant was the then Manager of the Bank. As per statement of MW-1 the authentication is a part of the duty and the job of the Manager being the present appellant.

Thus, according to the learned Senior Counsel of the Bank, it is clear that subsidy amount of 12 beneficiaries in question were not debited in the subsidy register and that was not confirmed and authenticated by the appellant herein being the Manager of the branch at the material point of time though the amount of subsidies of 12 beneficiaries in question were collected and credited by the appellant in the marginal deposit account. Mr. Basu further submitted that on the basis of the material and evidence the enquiry officer came to the findings that the names and amount disbursed to the 12 beneficiaries were not entered in the subsidy register and this was a serious misconduct on the part of the appellant. Thus, according to the respondent bank, the charge No. 1 has been established and as this is a case of omission or irregularity culminating to shaking the trust and faith reposed by the financial institution like bank to the appellant, the order of dismissal from the service is justified. Learned Counsel has referred to the decisions reported in State Bank of India and Another Vs. Bela Bagchi and Others, 2008 AIR SCW 4355 (State Bank of India and Ors. v. S.N. Goyal). Shri Basu has further contended that the second charge against the appellant is that with ulterior motive the appellant disbursed the loan amount and subsidies to 12 fictitious persons in stead of original applicants who got sanction from DRDA and whose names appeared as borrowers in the loan ledger has also been proved to the hilt. Seven borrowers out of 12 borrowers in question appeared in person before the enquiry proceedings. They categorically deposed that they did not receive the related IRDP loans and did not put their LTIs on the respective debit vouchers which were exhibited and marked as ME 16 to 27. The evidence of the seven loanees was disputed by the appellant on the plea that he disbursed the amounts to the said loanees on the basis of the identification made by Sri Subhendu Das, Ex Pradhan of Chandibila Gram Panchayat. During enquiry the minutes dated 3.3.1994 produced by the bank bears the admission of Subhendu Das that he along with the appellant, the cashier and the Peon appropriated equally the amount of subsidies of 12 borrowers. Learned Senior counsel of the respondent Bank has contended that in departmental proceedings the proof beyond of shadow of reasonable doubt is not necessary. According to the said learned Counsel, the preponderance of probability is the yard-stick in the matter of establishment of charge against the appellant.

As regards third charge of misappropriation of subsidy amount of sixty thousand Shri Basu submitted that the said charge has also been proved. In answer to the argument of the learned Counsel for the appellant that the minutes dated 3.3.1994 executed by Sri Subhendu Das, Ex Pradhan and Sri Madan Mohan Saha, C.C.G. of the Bank cannot be considered as the same was not proved and the original was not produced and the same was not admitted into evidence and only marked "X" for identification, Learned Senior counsel for the respondent Shri Basu has contended that copy of the said document being photocopy or xerox copy of original document executed by Subhendu Das, Ex Pradhan and Madan Mohan Saha, C.C.G. of the Bank was supplied to the appellant with the charge-sheet. The appellant got all the opportunities to deal with the said document in the enquiry proceedings. The said appellant did not question either the correctness or genuineness of the said document or contents thereof and only raised question as to the admissibility of the said document. Learned Counsel of the respondent Bank submitted that photocopy of document is admissible in evidence in disciplinary proceeding and law of evidence in strict sense is not applicable in disciplinary proceedings. Mr. Basu referred to the decisions reported in A. Sudhakar Vs. Post Master General, Hyderabad and Another, , State of Mysore Vs. S.S. Makapur, , Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., , 1981 (3) SLR 175 (J.D. Jain, Appellant v. The Management of State Bank of India and Anr. Respondents), 2008 (4) SLR 581 (Amal Chowdhury, Petitioner v. Union of India and Ors., Respondents) in support of his aforesaid arguments.

Shri Basu has further contended that no question has been raised by the appellant in regard to the consideration of the past record while imposing punishment of dismissal upon him either before the Appellate authority or in the writ petition and the same cannot be allowed to be agitated by the appellant at this stage. In relying upon the decision of the Apex Court reported in Deokinandan Sharma Vs. Union of India and Others, learned Counsel has submitted that if a point is not raised either before the statutory authority or in the writ petition, the same cannot be raised before Court of appeal.

Shri Basu has contended that there is no question of perversity or violation of principles of natural justice and judicial review is not permissible inasmuch as the Hon''ble Court in the writ proceedings cannot act as an appellate authority. It is undisputed that the departmental proceeding was started against the appellant on the ground of misconduct and there were 5 articles of charge against the appellant. It is further undisputed that the departmental proceedings ended in finding the appellant guilty. The charges were proved according to the enquiry officer and the enquiry report was accepted by the disciplinary authority against the appellant who was visited with the penalty of dismissal from service. It is further undisputed that the petitioner preferred appeal before the statutory appellate authority against the said order of dismissal but the said appeal was dismissed confirming the penalty of dismissal of the appellant from service. Then review application was filed and the same was rejected subsequently. The appellant challenged the impugned order of dismissal by filling the writ petition which was dismissed by the Learned Single Judge.

The appellant has challenged the said order of dismissal mainly on the grounds that the enquiry report is perverse and based on no evidence but on surmise and conjecture and extraneous matters were taken into consideration. According to the appellant, Enquiry officer was biased and mainly relied on photostat copy of the document purporting to be the admission of misappropriation of fund which was signed by Sri Subhendu Kumar Das, Ex Pradhan and Sri Madan Mohan Saha, Ex Cashier in presence of Satikinkar Deb, the then Manager of Bank on 3.3.1994. It has been strongly urged on behalf of the appellant that the said document is inadmissible as the original was not produced and the same was not proved according to law and in fact the enquiry officer did not admit the same into evidence and marked the same ''X'' for identification in stead of marking the same as exhibit under ''ME'' series.

It is needless to say that the writ court in dealing with the order of disciplinary authority on the basis of disciplinary proceedings does not act as a court of appeal and interference with such order of the disciplinary authority is only permissible by this Court by exercising the power of judicial review.

In the celebrated case of Tata Cellular Vs. Union of India, it has been held that Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision-making process itself. It is thus different from an appeal. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. It is further held that the duty of the court is thus to confine itself to the question of the legality. Its concern should be:

Whether a decision-making authority exceeded its powers?

committed an error of law,

committed a breach of the rules of natural justice,

reached a decision which no reasonable tribunal would have reached or,

abused its powers.

The main pillar of the edifice of the disciplinary proceedings against the appellant is the confessional statement made by Sri Subhendu Kumar Das, Ex Pradhan and Sri Madan Mohan Saha, Ex cashier admitting misappropriation of fund. The original document has not been produced. It is curious that original statement was retained by Subhendu Das who made statement jointly with Madan Mohan Saha. The true copy of the alleged document has been produced and the same was not admitted into evidence and same was marked ''X'' for identification. In the said statement Sri Subhendu Kumar Das and Madan Mohan Saha stated on 3.3.1994 that they along with Biswanath Bhattacharjee, appellant, Basudeb Ray, Peon, distributed loan amount amongst them and they have repaid the same. The said document does not bear the signature of the appellant Biswanath Bhattacharjee. It is undisputed that Biswanath Bhattacharjee was not present at the time of execution of the document. To the contrary long before the said document was executed the appellant was transferred from Chandabila branch to Basanti branch.

During enquiry in connection with disciplinary proceedings it was admitted by Satikinkar Deb, Deputy Manager, Sepai Bazar Branch that during the period from 31.7.1992 to April 14 of 1994 he was Manager of Chandabila Branch. He said that the original was retained by Sri Subhendu Das, Ex Pradhan and the appellant raised an objection that original document was not available it could not be treated as valid document and evidence on the basis of the paper was not acceptable. The enquiry officer considering the objection of the Defence Representative and after going through the said document was unable to accept the Defence Reprresentative''s contention that the document was totally unacceptable. He cannot say who wrote that document. He admits that Biswanath was posted in some other branches at the time of writing that document. Thus it appears that the appellant raised objection to the admissibility of the said document before the Enquiry Officer and contended that evidence on the basis of said document was not acceptable. He also contended that said document was totally unacceptable. When the appellant contended that document was totally unacceptable it cannot be said that document would be used against the appellant as he did not deny categorically the contents of the said document. The document was not admitted into evidence and same was not brought under ''ME'' series like other documents admitted during enquiry and the same was marked ''X'' for identification only. In view of the said fact that the document was not admitted in evidence it was not incumbent on the part of the appellant to deny the contents of the said document categorically or to cross-examine witness regarding contents of the said document. The enquiry officer could not rely on such document marked ''X'' for identification for arriving at finding of guilt of the appellant and he certainly committed error in relying on the document not admitted in evidence in the matter of coming to his conclusion regarding guilt of the appellant. Even if the said document is accepted still then in view of the fact that appellant was neither a signatory to said document nor he accepted the contents to be true nor he was present at the time of writing of said document the evidentiary value of said document in the matter of fastening the appellant with any liability is practically nil.

As regards charge No. 1 it has been categorically argued by the learned Counsel for the appellant that it was the duty of Sri Madan Mohan Saha, the Cashier to maintain the Subsidy Register and it was never the duty of the appellant to maintain the Subsidy Register and as such the appellant cannot be held answerable for not maintaining the said Subsidy Register.

M.W.1, Sri Satikinkar Deb, Deputy Manager, Sepai Bazar Branch has stated on the basis of the handwriting of the Subsidy Register and also from his own experience that Sri M.M.Saha, C.C.G. used to maintain the Subsidy Register on most occasions. There is no evidence that the appellant ever maintained the said register. During enquiry M.W.1 has stated that there is authentication of the appellant Biswanath Bhattacharjee in some cases and by himself in many cases in the Subsidy Register when the amount has been debited. He does not find any confirmation when the amount is credited. During enquiry the appellant contended that non recording of the subsidy amount of Rs. 60,000/- received from the DRDA in the Subsidy Register is a minor procedural irregularity which frequently happens and due to the fault of dealing clerk i.e. cashier who supposed to record that amount in the Subsidy Register the irregularity arose. The fact remains that appellant did not enter the names and related amount of subsidies of 12 beneficiaries of subsidy in the Subsidy Register. It was not his duty to make such entry. To the contrary, it was the duty of Madan Mohan Saha, Cashier to maintain the Subsidy Register and Sri Saha failed to discharge his duty. It is clear that the said amount was credited to marginal deposit account. The matter of non-recording of the said subsidy amount in the Subsidy Register appears to be an irregularity done by Sri Madan Mohan Saha. For such irregularity the appellant cannot be held responsible and it cannot be said that he deliberately concealed the fact with malafide intention and ulterior motive. So the charge No. 1 is bound to fail. The enquiry officer held charge No. 1 proved without caring to see that it was never the duty of the appellant to enter subsidy received in the Subsidy Register and it was the duty of Cashier, Madan Mohan Saha to enter the same. Thus such finding of the enquiry officer is purely based on surmise and conjecture.

The second charge relates to disbursement of IRDP loans under loan account No. SSI 45/90 to 56/90 to 12 fictitious persons instead of original applicants who got sanction from DRDA and whose names appeared as borrowers in loan register. It is contended by the appellant that the loans and subsidies were disbursed to 12 persons on the basis of identification by the then Anchal Pradhan, Sri Subhendu Kumar Das who attested the LTIs'' of the borrowers. But it appears that the allegations are that those 12 persons are fictitious and in order to misappropriate the amount the plea of disbursement of loan amount to 12 borrowers was taken. It appears that during enquiry out of 12 loanees 7 persons MW3 Mathur Murmu, MW4 Jagannath Mandi, MW5 Bhadreswar Hasda, MW 6 Krishan Murmu, MW7 Samai Murmu, MW8 Mathur Murmu, MW9 Gagan Murmu claimed to be the actual loanees contended that they did not receive loan amount and consequently the question of receiving subsidy amount could not arise in their cases.

The alleged 7 borrowers who deposed in the enquiry were taken as genuine persons only on the mere statement of Haradhan Bera subsequent Pradhan. There was no attempt to establish their identity by calling for the relevant records from the DRDA. As per statement of MW1 during enquiry the borrowers would be identified by the Pradhan or the Member of Gram Panchayat and the then Pradhan of Chandabila Branch identified them and attested LTIs'' of the related borrowers. Out of 12 borrowers rest 5 borrowers did not turn up. The appellant rightly relied upon the identification of the said borrowers by the then Pradhan. Except the identification of 7 alleged borrowers by subsequent Pradhan, whose identity is questioned, there is no other document to establish identity of those persons. It cannot be said with certainty that said 7 persons were the real loanees. Thus there is no tangible material to come to the conclusion that the appellant disbursed loans and subsidies to 12 fictitious persons with malafide intention.

The third charge of misappropriation of entire loan and subsidy amount in connivance with Sri Subhendu Kumar Das Ex-Pradhan of Chandabila Gram Panchayat and Sri Madan Mohan Saha, Ex CCG of Chandabila Gram Panchayat stands on the said confessional statement marked ''X'' for identification. As already observed the said document has not been exhibited and the appellant is not the author of the said document and, therefore, the said document cannot be used against the appellant in the matter of fastening him with any liability for alleged misappropriation. The enquiry officer unfortunately relied on such document and held that the charge of misappropriation was proved. The finding based on a document not even admitted into evidence and not signed and accepted by the appellant is certainly perverse and the same cannot stand. It is contended by the learned lawyer for the appellant that charge No. 4 has also not been proved.

Admittedly, the appellant was transferred in June 1990 from Chandabila Branch. The charge of removal of relative loan documents of 12 Accounts including the subsidies list of DRDA, Midnapore was brought against the present appellant in 1997 i.e. after lapse of a number of years from the date of transfer of the appellant. There is no evidence as to when the said documents were seen last by the authority. The ex-CCG, Madan Mohan Saha was working in the branch after the delinquent-appellant. So it cannot be said that it was proved that the appellant removed those documents in order to conceal the fact of misappropriation and to destroy documentary evidence of the said misdeed. The charge No. 4 thus has not been established.

The fifth and the last charge is about sending of demand draft dated 22.4.1994 for Rs. 25000/- and demand draft dated 30.5.1994 for Rs. 10000/- to Sri Madan Mohan Saha and crediting of the said drafts to his own joint S.B. account and another account and thereafter transfer of Rs. 25000/- from SB account of Sri Madan Mohan Saha to SB account of Sri Haradhan Bera and Prafulla Mahato and withdrawal of Rs. 25000/- by Sri Bera on 28.5.1994 and deposit of a total amount of Rs. 34000/- in 28 small business accounts in cash. The charge has been brought as the appellant-delinquent did not mention anything in his letter dated 20.6.1996 in response to bank''s letter dated 13.4.1996 in the aforesaid matter. On 13.4.1996, the bank wanted clarification of the appellant on the matters embodied in the charge -sheet and the appellant gave reply on 20.6.1996 and categorically stated that it is false that he misappropriated the money. There is no categorical denial of the said matter in the reply of the appellant dated 20.6.1996. The matters embodied in the charge No. 5 are matters of record. There is no allegation of any misconduct on the part of the appellant in the matter of sending those drafts. There is no allegation in the charge that appellant sent misappropriated amount to Madan Mohan Saha by Demand Drafts. Mere sending of drafts does not prove alleged misappropriation.

There may be hundred reasons for such sending of Demand Drafts. The appellant has contended that personal loan was paid. Had it been the fact that appellant wanted to send misappropriated amount surely he being an experienced Branch Manager would not have sent the same by Demand Drafts. He could have paid the same in cash. So absence of reply relating to the said matter of record does not fasten the appellant with any liability and the matters stated in charge No. 5 simplicitor not coupled with any allegation do not inspire any prudent man to come to a finding in establishing nexus of the appellant with any misconduct.

It appears that during enquiry the appellant requisitioned certain documents but the said documents were not produced on the plea that those were not traced out by the branch or regional office of the bank. The appellant was certainly prejudiced for nonproduction of said document.

It further appears that as per Regulation 7(3) of the Regulations United Bank of India Employees'' (Discipline and Appeal) Regulations 1976, the Disciplinary Authority had to come to a specific finding in respect of the charges but in the instant case there is no specific finding of the disciplinary authority in respect of each charge.

It also appears from language of charge sheet that enquiry was started with a closed mind. The charge contained finding which was likely to influence the enquiry officer and in fact he was influenced.

Reference may be made to the ruling reported in (2) CHN 103 (State Bank of India v. Tapan Kumar Das) where it has been held that the expression used in the charge-sheet should not convey a sense of finality of the charged employee''s guilt, even before the holding of the disciplinary enquiry. If the wording of the charge-sheet is in absolute terms, the charged employee can very well contend that the same revealed a closed mind and the Disciplinary Authority had already pre-judged the matter and was convinced of the employee''s guilt, thus reducing the enquiry into an empty formality. In a departmental proceeding, a greater duty is cast upon the Enquiry Officer to act fairly and in accordance with the principles of natural justice and administrative fair play. It appears that the enquiry officer arrived at a finding on consideration of document which was not admitted into evidence and of which the appellant was not the author. It further appears that enquiry officer had jumped at the conclusion not on the basis of materials on record but on surmise and conjecture and he did not apply his mind to the matters at issue and the materials on record and his finding is vitiated for consideration of the matters extraneous to the evidence and merit of the case. The conclusion reached by enquiry officer is capricious. On close scrutiny of the materials so far collected by the enquiry officer and judging the same on the anvil of probability it would be clear that said collected materials did not link the appellant with the alleged misconduct. The enquiry officer in arriving at a finding relied upon the materials which do not establish any nexus between the alleged misconduct and the appellant. So, the satisfaction of the enquiry officer that the charges have been established through documents and evidences adduced at the enquiry is erroneous and disciplinary authority committed grave error in relying upon the report of the enquiry officer while finding the appellant guilty. In this regard reference may be made to the decision of the Apex Court reported in Sher Bahadur Vs. Union of India (UOI) and Others, where it has been laid down that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter was proved, is erroneous. It is clearly a case of finding the appellant guilty of the charges without having any evidence to link the appellant with the alleged misconduct. Therefore, the order of disciplinary authority, under challenge, cannot be sustained.

It must be said that in this case also the disciplinary authority committed grave error in accepting the said report and the order of the disciplinary authority in dismissing the appellant from service cannot stand in law.

It is undisputed that the Ex-cahsier, Sri Madan Mohan Saha who was entrusted with the duty to maintain subsidy register and who made confessional statement as alleged by the disciplinary authority was not visited with the penalty of dismissal of service but he was visited with the penalty of reduction in increment which is a minor punishment. But it appears that the appellant was visited with the major penalty of dismissal from service and in imposing penalty the past punishment of the appellant in the earlier disciplinary proceedings was considered without framing charge about such past conduct and without giving the appellant any opportunity of offering his explanation notwithstanding the fact that the appeal and review against the past punishment have not yet been disposed of and the orders of punishment have not reached finality. The penalty so imposed appears to be discriminatory apart from the fact that such penalty cannot be imposed as the charges have not been proved. It appears that in the writ petition consideration of past record has been challenged. It is true that in appeal before Statutory Authority such consideration of past record was not challenged. But that fact does not debar the writ petitioner to challenge that consideration of past record in the writ petition.

Such consideration of past record in the matter of imposing penalty without giving the appellant any opportunity to offer explanation and without caring to see that past punishments have not reached finality, surely offends the principles of natural justice. The facts and circumstances of the case reported in Deokinandan Sharma Vs. Union of India and Others, are not similar to the facts and circumstances of the present case. So the said case does not help the learned Counsel for the respondent.

On consideration of the materials on record and facts and circumstances of the case the irresistible conclusion is that the order of disciplinary authority dismissing the appellant from service on acceptance of the enquiry report which was vitiated with caprice, consideration of matters extraneous to the evidence and merit of the case and perverse, cannot stand in law and the same should be interfered by exercising the power of judicial review. Learned Single Judge failed to consider the case in its true perspective and dismissed the writ application. The writ petition should thus be allowed setting aside the impugned judgment and order of the Learned Trial Judge. The appeal is, therefore, allowed. Judgment and order of the learned Single Judge are hereby set aside. The order of dismissal of the appellant from service is hereby quashed. The appellant is deemed to be in service. The respondents are directed to allow the appellant to resume his service and to pay all financial benefits admissible to the appellant as per rules.

The respondents are also directed to calculate and disburse the arrear admissible dues of the appellant at an early date but positively within a period of four weeks from the date of communication of this order.

We make no order as to costs.

Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.

Tapan Mukherjee, J.

I agree.