I Rajasthan and others v. Bhupendra Singht to lrolster the submission that scope of judicial review in case

for the Respondent No'1: SRI G'VIDYASAGAR -." -STVTT. K.UDAYA SRI, SC FOR CENTRAL GOW. The Court made the following: JUDGMENT THE HONOURABLE THE ACTTNG CHIEF JUSTICE SUJOY PAUL AND THE HONOURABLE SMT. JUSTICE RENUKA YARA WRIT APPEAI, No.2O8 of 2O11 JUDGMENT: (Per Hon'ble tLE Acting Chief Justice Sujog Paul) Sri A.Krishnam Raju, learned counsel for the appellant and Sri Sai Prasen Gundavaram, learned counsel representing Smt. K.Udaya Sri, learned counsel for the respondent'

2. This intra Court appeal takes exception to the order of the Iearned Single Judge passed in W'P No'1108 of 2OO4 decided on

20.01.2011. Facts:- respondent was appointed as a clerk in the appellant 3. The Bank on 11.08.1990. From 26'12'199l to 20'06'199a' the respondent vl'orked in Alwal Branch of the Bank' The respondent \^/as translerred on 20 06' 1998 to S'D'Road Branch' In for the misconduct contemplation of a disciptinary proceeding allegedly committed by the respondent' she suspension on 29-06'1998' A charge sheet dated 13'1O'1998 was issued to the respondent ln turn' the respondent submitted detailed explanation to charge sheet on 02'12'lgg8 and denied the of the delinquent Dissatisfied s'ith the resPonse c_harges in toto. was placed under ) Ii \c.r (sP.J) & RY,J \\iA 208 201 I empioyee, the Bank appointed an enquiry officer on lr:.12.Iggg. In the departmental enquiry, delinquent employee participated. The enquiry office;: recorded the evidence of parties a'rd s rbmitted his report datecl I S.07.1999 before the disciplinary authority. The disciplinary authority provided copy of enquiry recort to the delinquent employee on 16.O7.1999. The delinquent t.mployee, in turn submitte'd her response on 04.09.1999. The disciplinary authority issued notice dated 20 .Og .lggg proposing the punishment of dismissal from service After o btetir-r ing written submission of r.hr: delinquent emplovee dated 29.og.1gg9, and after giving a persorral hearing to her, rhc discipiinar). auilrr ritv passed the punishment order dated 08. lO. I gg9, whereb-1, thr: lrunlshmsnl of dismissal from service was inflicted on the delinquen employee. Aggrieved, the dr:linquent emplo!,ce pre lerred ar.r a11prs3l, l,vhi6tr came to be disr'issed by the appelrate autho.tv on o3 orl.2o0o. 4- The derinclur:nt employee raised an industriar dispute, which was ultimately referred for adjudication belore tl,r e Central Government Inctr-rstrial Tribunal (Tribunal) and r.r,as re!,.istered as i.D.No.89 of 2OCrO. The Labour Court after completion of pleadings and recording of r:vidence, passed its Aq,ard on 04.0g 2003 and ansrvered the terms of reference in favour of the Managernent. This J HACJ (SP,J) & RY,J wA 208 2011 Award dated 04.08.2003 became the subject matter of challenge in W.P.No.lloSof2oo4.ThelearnedSingleJudgepassedthe impugned order and set aside the order of the Tribunal and directed reinstatement of respondent with 5o% backwages and attendant benefits. This order of the learned Single Judge is assailed in this writ aPPeal' Contentio ns of the appellant/Bank:-

5. Sri A.Krishnam Raju, learned counsel for the appellant/Bank submits that the hrst reason for interference in the departmental enquiry by the learned Single Judge was that the oflicer who has conducted preliminary enquiry/investigation became management representative / presenting officer' The departmental enquiry was initiated on the report ol such management representative and therefore, domestic enquIry became defective. Criticizing this the aPPellant submits that the finding, learned counsel for investigation was conducted by one Sri G'srinivasan' Deputy Chief Manager (Vigilance), whereas the presenting officer was one Sri S.sridhara Rao. Thus, finding of learned Single Judge on the rrrst count is factuallY incorrect' ) l I I],C.I (SP.J I& RY,J wA 208 201 I 6. SecondlJ,, the learned Single Judge lound that r_he Tribunal has not assigrrerl adequate reasons in support of its co,rclusion. 81, taking this Coru-t to the hndings of the Tribu,al, it is submitted that this ba.d finding of the learned Single ,JuCge is not sustainable. More so, when the learned Single Judge hirs not taken pains to mentlon as to which conclusion o[ Tnbrrnal is not supporled b.v an1 reasoning.

7. The interfe.r ence by the learned Single Judge on the ground that the report of handwriting expert (Mw.2) was not fur nishecl and identified specilied signatures were not there is factuall.r_ irrcorrect. MW.2 u'as an ir-rdependent government official and an ei:pert in the fieid of handwriting examination. He entereri the u,jtness box, deposed his statr:ment and respondent rvas pern-ritteci ro cross- examine him. Dr,u-ing the enquiry, no objection of an-r rrarure lvas raised b_v the delinquent employee regarding an-v sl_ror coming in his deposition or in other words regarding non suppk. of handwriting exper-r- report prepared bv MW.2.

8. Furthermorr:. it is submitted that the learned Sirgle.Iudge has erred in holcling that before introducing the haldu,riting expert as management .,r.itness, the prosecution r,r.as requirecl to *sqqk permission from enquiry officer. Neither there exists rnv such ) ITACJ (SP,J) & RY,J wA 208 20t I requirement under the rules nor is it spelt out by the learned Single Judge. Secondly, there was no comparison of signatures in absence of any specimen signature available with the Bank. 9 . The hnding of learned Single Judge is further assailed by contending that if there was no complaint from concerned account holders, the Bank on its own could not have conducted enquiry. If there is misappropriation, procedural infirmity and lack of purity, Bank can always take action against its erring employees whether or not there exists a complaint by account holder. The learned Single Judge further erred in holding that it was not alleged that the petitioner has misappropriated any amount or has diverted funds to her account. [n absence of any such allegation, punishment could not have been imposed. Learned counsel for the appellant placed heavy reliance on charge sheet dated 13.10.1998 and apprised the Court that specihc allegations of dishonest intention, fraudulent act and misappropriation were made against the respondent

10. Sri A.Krishnam Raju, learned counsel for the Bank placed reliance on the recent judgment ol the Supreme Court in State of .a 6 II \C J (SP J) & RY.J \I,A 208 201 I Rajasthan and others vs. Bhupendra Singht to lrolster the submission that scope of judicial review in case of de partmental enquiry is 1imit,:d. If decision making process is in conscnance with principies of natural justice and no prejudice is caused 1o the other side, no interference is warranted. The Ccurt is not oblig.ed to sit as an appellate (l.rurt to re-weigh/re-appreciatc the evidence. Interference car-l be made only in cases of 'no eviclence'. The punishment cra rr be interfered with if is shockingly disproportionate It is prerogative of the employer to tal<( | a decision on quantum of punishment. In the instant case, if lea_r ned Singie Judge lr,as of tlre opinion that the departmental er rquiry was vitiated, the onl_i' course open to the learned Single ,Judge was to remit the rnatter back for conducting further enqurir,, irom the stage error ha d crept in. The learned Single .Juclg e has not considered the aforesaid aspect and interfered t,ith the punishment. The present case was not a case of 'no evirlence'. lt is a matter ol comrnon knowledge that Bank handles hug,: rnsnsl' .1 customers. Thus its employees must work u,ith int egritv and devotion. In a ,:ase of this nature, where m isap pr-o priation is established, no irrterference should have been made. r1024 scc onLinc sc lq( 8 7 IIACJ (SP,J) & RY,J wA 208 201I

11. The Balk lost confidence on the respondent and therefore, in view of the judgments of the Supreme Court in Suresh Pathrella vs Oriental Bank of Commerce2, State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwayaa and Karnataka SRTC vs M.G.Vittal Raoa, interference should not have been made

12. Furthermore, it is submitted that even assuming that preliminary enquiry report was not supplied to the delinquent employee, it will not cause any dent to the main enquiry ald punishment. More so, when in the maln departmental enquiry and its enquiry report, no reliance is placed on the preliminary report. Reliance is placed on the judgments of the Supreme Court in Pandit D.Aher vs. State of Maharashtras, Manoj Kurnar vs. State of Uttar Pradesh6 and P.S.Malik vs. High Court of DelhiT' Lastly, it is submitted that even hearsay evidence is admissible in departmental enquiry by taking assistance from the judgments of the Supreme Court in J.D.Jain vs. Management of State Bank of India8 and State of Haryana vs. Rattan Singhe. 1u ooo) ro scc szz '(2o l l) 4 scc 584 '(20 r2) I scc 442 1200?) r scc 445 u(zo tg) r; scc t6t ' 2020) 19 scc 714 t(rgs:) t scc rq: 8 F1,\( .J (Sl'.J) & RY,J \\,A 208 201 I

13. By placin8: h ear,,rr' reliance on the judgment of the Supreme Court in State Bank of India vs. Tarun Kumar Banerjeero, it is submitted lltz t in ca-ses of departmental enquirl. of bank employees, it is not necessary to call the customers t,l enter the witness box. If r:ogent evidence is led by the department to prove the charges. tha. is sufficient. Contentions olt he respondent:

14. Learned colrnsel for the respondent supported th<: impugned order passed bl. the learned Single Judge and urged that the g,hole case of prosecuLtron is based on the opinion of handu,rir_ing cxpert. The preliminar\' onquiry, the charge sheet and finding of enquin, officer are four: d erd upon such opinion of the handu'rir ing expert. By placing reliance on the judgments of the Supreme Co rrt in Smt. Bhagwan Kaur vs. Shri Maharaj Krishnan Sharmarl, Magan Bihari Lal vs. State of Punjabl2 and S.p.S.nathore vs. Central Bureau of Investigationl3, it is argued that in view of Section 45 of the Evidence r\ct and principles of law laid down rn the said '1r 9rt1 z scc ao I 't:ooo) s scc r: " ilot31,t scc lr, ''1197;):scc2to ''12olzi-s56631- I HACJ (SP,J) & RY,J wA_208 201 I judgments, in the absence of arry corroboration, the conviction/guilt cannot be recorded on the basis of opinion of handwriting expert. The said opinion has no substantive value and at best, it can be used as supportive evidence.

15. lrarned counsel further submits that there is no eye witness who entered the witness box in the domestic enquiry and deposed that he had seen the delinquent employee forging signature or commltting misconduct. Thus, learned Single Judge has not committed arry error of fact and law while passing the impugned order. Reioinder Submissions:

16. Learned counsel for the Bank submits that MWs.4 and 5 entered the witness box on beha-lf of the management and these cashiers deposed that the money was given to the present respondent. Thus, substantive evidence was led by the cashiers which got support from the statement of handwriting expert. Thus, there exists some evidence and it is not a case of 'no evidence''

17. No other point is pressed by learned counsel lor the parties

18. We have heard the parties at length and perused the record r0 I {.\I ]J (SP,J) & R\'.J \\rA 208 201 l Findings:

19. As rightll :ointed out by the learned counsel for rhe Bank, it is trite that the scope of judicia,l review in departmental enquiry is limited. If depzLrtmental enquiry is conducted in flagraat violation of principles o1- ratural justice and such vioration caurled serious prejudice to the ,:mployee, interference carl be made. Ilowever, in such cases also as rightly argued, if enquiry is fc,und to be defective, belorc I ndustrial Tribunai, employer gets an opportunity to lead evidencr: afresh to prove the misconduct. In r,vrit petitions, if interlerence rs rrade on technical ground, namely ,.,io1ation of principles of na.,rral justice, the matter is remitted track to the employer to ccn(luct further enquiry from the stage defect was found. Interferr:tr:e irr the enquiry can be made if findings are perverse or it is a case of ,no evidence,. The principle of 'preponderance c,l probabilitv, is the principle which governs domestic enqulrrr:s and not the principle that ,charges must be proved bel,ond reasonable doubt,. The latter principle deals with criminal cases. Thus, degree of proof required in domestic enquiry is different thar the proof required in criminal cases. In case of no evidence, inLerf,:rtrnce can be made. If punishment is shockingly disproportionat r: ,lnd is not commensur.ate to the rrisconduct, \ HACJ (SP,J) & RY,J wA 206 201 I interference can be rnade' Under Section 11A of Industrial Disputes Lct, 1947, the Labour Court/Tribunal has statutory power to interfere with quantum of punishment and carl even substitute the punishment. However, in writ jurisdiction' ordinarily' if punishment is found to be excessive/ disproportionate' the course open is to record such finding and remit the matter back to the disciplinary authority to pass a fresh order imposing substituted punishment (see Apparel Export Promotion Council vs' A.K.Choprala). 2C.. Coming to the lnstant case' the first reason for interference by the learned Single Judge was that the ofircer of the Bank w'ho conducted the preliminary enquiry/ investigation acted as presenting officer in the enquiry' This finding of learned Single Judge is factually incorrect and tegally improper' The record shows tLrat the investigation was done by Sri G'srinivasan' Deputy Chiel Manager (Vigilance), whereas Sri S'sridhara Rao acted as presenting ofhcer' Even otherwise' no authority/law is cited by the conducting learned Single Judge to hold that the person preliminary enquiry/investigation cannot officer. Thus, this finding needs to be axed' become Presenting 'o (tggg) t scc lsq .4 1 H {C J (SP,J) & RY.J wA 208 20rr 27' *arned Siingle Judge has given a finding that the Tribunal has not gir.en r.easons in support of conclusions. Crrriously, the learned Single Judge has not recorded any such conclrsion, which is not supporlecl by any reasons/findings by the Tribunal. For this reason, \ve are unable to countenance the order of the learned Single Jr-rdge or this aspeci.

22. The hanrluriting expert (Mw.2) entered the witness box and deposed his stalr:ment in thc presence of the delinquer:t employee. The delinquent t-.rnpl6yse got full and reasonable opl.rortunity to cross-examine lr im . The case of prosecution \lras su pported by statement of cashiers (MWs.4 and 5). They werc also subjected to cross-examinatictr. Thus, there is no procedural infirrnity in the departmental enquiry_ The delinquent employee did no: raise any cross-examination of MW_2 and did not objection durirLg the demand any do<.r rrrenr .

23. The eyebrorvs are raised by the Bank on arother finding of learned Single Judge, *'herein it nas held that berore ir rtrohucing the handwriting e xpcrt as management witness, the permission ought to have br_.en taken from the enquiry officer. We r:lo not see any m_erit in th is finc_ling because it is not supporte,:l by a:iv t3 HACJ (SP,J) & RY,J wA 208 20ll authority. The only requirement as per principles of natural justice was that if such witness has entered the witness box and deposed his statement against delinquent employee, the delinquent employee must get an effective opportunity to cross-examine him. Thus, this finding of learned Single Judge also cannot be upheld.

24. The learned Single Judge in the impugned order opined that the customers of the Bank did not complain to the Bank about arry shortcoming and did not enter the witness box. The Bank could have proceeded against the delinquent employee only when such a complaint is preferred by the customers. The Supreme Court in Tarun Kumar Banerjee (supra) held as under "6. A custorner of the Bank need not be involved in a domestic enq uiry conducted as such a course would not be conducive to Droper banker-customer relationship and, therefore would not be in the interest ofthe Bank. Further when money was secured a prudent banker would deposit the same in the account of the customer complaining of loss of money and, therefore, non-production of money also would not be of much materialiry. When in the course of the domestic enquiry no reliance was placed on the so-called confessional statement made by the first respondent, then non-production of the same is also of no signilicance. Thus, in our opinion, these circumstances are irrelevant and the Tribuna-l could not have placecl reliance on the same to reach the conclusion it did and, thercfore, the learned Single Judge was justified in interfering with the samc. In the w'rit appeal the learned Judges on the Division Bench reiterated the view expressed by the Tribunal which we have found to be fallacious." (emPhasis suPPlied) l1 r r .\( rJ (sP.J) & RY.J \\ i\ 208 201 I

25. In vieu, of the above judgment, we find that if ,lepartment itself noticed the shortcoming or misconduct, it u,'ii1 nrt preclude the Bank from r nitiating domestic enquiry. Every emp oyer has a riSht to assess the working of its cmployees and if any rrrisconduct is committed b'r its employee, proceed against him/her. Whether or not complaint is preferred bt, any person, it is prcrogative of employer to initrate disciplinary action. It is a mattcr of common knowledge that rhe Bank needs to function u,ith transparency and integrity. It is not only public mone),, but it is laith of pe.ople on the strglglfu of w'hic]r a Banking institution runs. [n orcler to ensure its purity, employer must be given complete right to irlentify the misconduct ald proceed against erring employees. The learned Single Judge, in our judgment, erred in holding that llank could not have taken action on the delinquent employcc in absence of m5z complaint b1' account holder. 26 - In view ol' t1-re foregoing analysis, it is clear that ._here is no Procedural infirmity in the departmentai enquiry, whicir vitiates the enquiry. After ;ie<:ording the evidence, enquiry officer 1;repared a detailed report and considered each and every er.;dence. No Perversity in the llndings could be pointed out. It is nct a case of 'no evidence'. So far reliance on three judgments of th,: errRreme .-,C\ t5 HACJ (SP,J) & RY,J wA 208 201 I Evidence Act are concerned' Court based on Section 45 of the are relating to criminal cases' suffice it to say that said judgments Act are not aPPlicable in The strict PrinciPles of Evidence departmental enquiry' Apart from this' the case of prosecution rs not wholly based on expert opinion' Instead' it is based on other evidence as well including the evidence of cashiers'

27. The learned Single Judge has further erred' in holding that there was no allegation of misappropriatlon of moneY. This frnding runs contrary to record' which can be seen from following allegations of the charge sheet "l ) "The above circumstances go to indicate that you with benefit a dishonest intention oi Jtt*itig undue -pecuniary resortecl to dubious rn;;;t- t'ia *itt'attw Rs'15'ooo/- i-.,-, tt''" sl-ut"o"'t of a customer' rravinq il;iitt";;" misappropriated tne arloot't Vo" suppressed the said act bv causing destructlon/ ['pt:'ri"g of Bank records' xxx xxx xxx The above clrcumstances go to indicate that you with Jtltlig undyg R3cuniary beneht a dishonest intention for self fraudulenttv wr;drlw es +.'o991--rrom sB account of a custom.. uy t""*iGg to dubious means and to ""' vou falsihed/caused :i;..* destruction/ tamperlng oiih" tt<;otd" of the branch'" .- '";;;' -i'"'ai'i'"i (emPhasis suPPlied) ""f I l6 I], \CJ (SP,J) & RY.J wA 208 20 ]l

28. In nutsl.reil, 1n a case of this nature u.h ere a llegations of misappropriatio, are proved, it cannot be said that the punishment was disproportionate or shocks conscience of the Court, 29. As anaiysed above, the order of the learned Singie Judge cannot sustain sorutlny

30. Resultanth,. the order of the learned Single .J Lrdge dated 2O.O1.2O11 passed in W.p.No. 11OB of 2OO4 is scl asirle and the writ appeal is allowed. There shall be no order as to cosl s. Miscellanerous applications, if any, pending shall stand closed. //TRUE COPY// SD/.K.SRINIVASA RAO JOINT REGISTRAR \'--: - .t SECTION OFFICER 0' To J i t

1. The Presiding officer, centrar Government rndustriar rribunar-cum-Labour Court, Government of lndia, Ministry of Labour., V-Z Bloc.L., Vfrnorrn;rn-- Complex, M.J. Road, Hyderabad. Telangana, at Hyderabad.

2. fhe Section Officer, Writ Service Section, High Court for the Strte of 3. One CC to SRI G.VIDYASAGAR. Advocate IOpUCt 1. 9ne CC to SRt A.KRISHNAM RAJU, Advocite tOpUCl 5. One CC to SRt K.UDAYA SRt, sc FoR CENTdAL GO',VT. [Opuc] 6. Two CD Copies \u' PSK. HIGH COURT DATED:1 110412025 JUDGMENT WA.No.208 of 2011 ALLOWING THE WRIT APPEAL WITHOUT COSTS "0c \ r, /( z' /-) h ,J, Io f, 1 t1'.: S 14 3 o k I 0 I'iA) t o;: )r, \r | ,( .\\ 'ei;,.\.. i\\ 202s i j -n | //' u".,7 --? 4'.//