High Court of Punjab and HaryanaCWP/17215/2013disposed of

Sukhlal Singh v. Indian Overseas Bank And ORS.

2015-07-07Mr. Justice Jitendra Chauhan16 pages

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= "Article of Charge 1.

On 13.07.2010 you had fraudulently withdrawn Rs. 30,000/& from the SB A/c NO. 15688 of Mr. Ved Prakash through a withdrawal slip which had been obtained by you earlier with the customer's signature and misappropriated the amount for your undue pecuniary gains.

You had hidden the paid withdrawal slip in order to conceal the fraud and when the matter was raised about the missing instrument, you had produced the same as if found from a waster paper basket.

When the issue of fraudulent withdrawal came to light, you had accepted the misappropriation of the amount

and you made good the loss to the customer on 29.07.2010.

Thus ,it is charged that by your above acts.

a) You had attempted to cause damage to the property of Bank's customer and there by committed Gross misconduct within the meaning of Clause 5 (d) of Memorandum of Settlement dated 10.04.2002 between the Bank and its workmen.

b) You had acted prejudicial to the interest of the Bank within the meaning of Gross misconduct as defined in Clause 5(j) of Memorandum of Settlement dated 10.04.2002 between the Bank and its workmen."" The relevant portions of the Memorandum of Settlement are extracted below:

5(d) Willful damage or attempt to cause damage to the property of the Bank or any of its customers. 5(j) doing any act prejudicial to the interest of the Bank or Gross negligence or negligence involving or likely to involve the Bank in serious loss."

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- - %+ =% "Statement of Mr. Ved Prakash's B A/C No. 15688 taken on 13.08.2010 in the presence of Mr. G.S. Gupta, 15151, Manager,&Fraudulent withdrawal of Rs. 30,000/& on 13.07.2010 from SB 15688&Mr. Ved Prakash.

IO&When did you come to know that Rs. 30,000/& had been fraudulently withdrawn from hour SB A/C No. 15688? VP&I came to know that Rs. 30,000/& was fraudulently withdrawn from my SB A/C No. 15688 on 14.07.2010 when I had come to the Bank to withdrawn money. IO& Have you opted for SMS facility from the Bank? VP& I do not have a mobile phone.

IO& Have you signed on the disputed withdrawal slip of Rs. 30,000/& VP& Yes the signatures on the disputed withdrawal slip is my signature.

IO& Then how the payment of disputed withdrawal slip has been taken by someone else?

VP& It is difficult to say as to how the disputed withdrawal slip has fallen into wrong hands.

IO& Have you received the payment of Rs. 30,000/&

when and who has given you the payment?

VP& Yes. I have received the payment of Rs. 30,000/& on 29.07.2010.

Sd/& Sd/& Sd/& (Ved Prakash) (G.S. Gupta) (Jerry D'souja) SB A/C 15688 Manager Investigating Officer@

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$ 8 The Court must keep in mind that judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Thus, the court is devoid of the power to reappreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide High Court of Judicature of Bombay v. Udaysingh, State of A.P. v. Mohd. Nasrullah Khan and Union of India v. Manab Kumar Guha.)

The question of interference on the quantum of punishment has been considered by this Court in a 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. In Ranjit Thakur v. Union of India, this Court observed as under: (SCC pp. 620&21, paras 25 & 27) "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

sentence would not be immune from correction.

27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."

(See also Union of India v. G. Ganayutham, State of U.P. v. J.P. Saraswat, Chandra Kumar Chopra v. Union of India and High Court of Patna v. Pandey Gajendra Prasad.) In B.C. Chaturvedi v. Union of India, this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof.

While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority.

In V. Ramana v. A.P. SRTC, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof.

In State of Meghalaya v. Mecken Singh N. Marak this

Court observed that: (SCC p. 584, paras 13&14) "13. F A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it felt that the punishment is not commensurate with the proved charges.

14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. F The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review."

(See also A.P. SRTC v. P. Jayaram Reddy.) The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide Union of India v.

Bodupalli Gopalaswami and Sanjay Kumar Singh v. Union of India.) In Union of India v. R.K. Sharma, this Court explained the observations made in Ranjit Thakur observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds."

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