UNITED BANK OF INDIAversusBISWANATH BHATTACHARJEE

988            SUPREME COURT
                         [2022]REPORTS
                                3 S.C.R. 988                 [2022] 3 S.C.R.


A                         UNITED BANK OF INDIA
                                         v.
                       BISWANATH BHATTACHARJEE
                         (Civil Appeal No. 8258 of 2009)
B                              JANUARY 31, 2022
              [K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
              Service law – Reinstatement – Respondent-Bank employee was
      appointed by the bank, he served as a manager of a bank’s branch
      – Disciplinary proceedings were initiated against him alleging his
C
      complicity in five major charges during his posting as manager –
      Charges related to the non-recording of subsidy amount in subsidy
      register; deposit of subsidy in the account of twelve fictitious persons
      in connection with the Project of Central Government;
      misappropriation of loan and subsidy amount; removal of the
D     relevant documents to conceal the misappropriation and that the
      respondent in connivance with others transferred amounts through
      three demand draft bank – Enquiry was conducted – Enquiry officer
      found that respondent was guilty of the charges – Disciplinary
      Authority accepted the report and terminated his employment –
      Appellate Authority dismissed the appeal – Respondent approached
E
      High Court – Writ petition was dismissed by the Single Bench of the
      High Court – The Division Bench allowed the appeal and set aside
      the orders of the Appellate and disciplinary authorities – On appeal,
      held: In view of evidence of MW 1 and in absence of any
      documentary evidence showing that the respondent was having the
F     primary responsibility to maintain the subsidy register charge of
      non-recording of subsidy amount in subsidy register, not proved –
      Charge that respondent deposited subsidy in the account of twelve
      fictitious persons, Bank had relied on disposition of 7 persons, they
      were identified by MW 2 but neither his identity nor the identity of
      the 7 persons was proved, additionally there was no material linking
G
      the respondent with the applications of introducing the borrowers,
      etc. – No evidence of involvement of the respondent – Charge of
      misappropriation of entire loan and subsidy amount was based on
      confessional statement, the said documentwas not exhibited and
      undeniably it was not signed – Document can bound authors but
H     not the third parties like respondent – As far as the charge of
                                        988
    UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                    989


removing the documents is concerned, there is no evidence to show      A
that the respondent has removed them – Charge of transferring
amounts through three demand draft was concerned, there was no
material evidence to suggest the same – Judgment of the Division
Bench of the High Court upheld – Respondent reinstated.
      Dismissing the appeal, the Court                                 B
      HELD:1. It was seen that MW 1, the management witness,
who deposed about the procedure in the bank, for recording
entries in the subsidy register, clearly stated that at the relevant
time, some entries were made by the respondent, and some by
MMS, who “used to maintain the subsidy register on most                C
occasions.” He also deposed that it was MMS’s duty as the cashier
to maintain the subsidy register. MMS failed to discharge that
duty. In view of this evidence, and no contrary documentary
evidence casting the primary responsibility to maintain the subsidy
register on the respondent, the impugned judgment, in this court’s
opinion, cannot be faulted with in concluding that there was no        D
material to prove the first charge against the employee. As
regards the second charge of misappropriation of subsidy amount
from twelve individuals, whose names were fraudulently
introduced, the bank relied on the depositions of seven persons.
They were identified by MW2, himself at the time Pradhan,              E
Chandabila Gram Panchayat. MW 2’s identity was challenged at
the outset by the respondent; he did not produce any identity
proof. The enquiry officer did not rule on this. The impugned
judgment concluded that in the absence of proof of HB’s identity,
and any independent material, with respect to the seven alleged
beneficiaries, their identity was not independently proved.            F
Additionally, there had to be some material, linking the employee
(respondent) with the applications, introducing the borrowers,
etc. MW-1, the subsequent manager, clearly deposed in reply to
a query (question no. 8) as to who used to “identify the borrowers”
before sanction and disbursement of IRDP loans, that the               G
“Pradhan/Member of Gram Panchayat” used to identify the
beneficiaries. Such being the case, the involvement of the
respondent employee had to be shown by more definitive


                                                                       H
990           SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A     evidence. It is again a matter of record, that the then Pradhan of
      the Gram Panchayat, identified the borrowers. In these
      circumstances, even in departmental proceedings, there had to
      be some overt evidence, and not mere suspicion, to support a
      valid finding of complicity of the respondent. In these
      circumstances, the impugned judgment cannot be faulted with in
B
      its findings on the second charge. [Para 21][1003-E-H; 1004-A-
      D]
            2. The third charge of misappropriation of the entire loan
      and subsidy amount in connivance with SKD and MMS was based
      on a confessional statement (document ‘X’). In the present case,
C     however, the confessional statement was not by the respondent.
      Those who authored the confession, did not depose in the enquiry.
      Furthermore, no witness who heard the authors of the confession,
      deposed to it. At best then, that document bound the authors,
      not third parties, like the respondent. The enquiry officer clearly
D     erred by relying on such extraneous matters, as the respondent
      could not be made a scapegoat for the confession of others,
      especially with regard to his role. The bank’s charge about his
      complicity had to be proved by evidence. This document,
      containing others’ confession, could not have been used against
      him. [Paras 22, 23][1004-D-E; 1006-C-E]
E
            3. As far as the other two charges go, the division bench
      correctly held that there was no evidence to show that the
      respondent had removed the documents, from the bank.
      Importantly, he was charged seven years after the alleged
      incident; by that time other managers had taken over the branch.
F     As regards the last charge of transferring amounts through three
      demand drafts from the account of MMS to Joint S.S. Account of
      HB on 28.06.94 was concerned, the enquiry officer noted that,
      “Sri HB in his evidence avoided the matter for some reasons best
      known to him.” In the absence of any other material, the finding
G     that the amounts had been misappropriated by the respondent,
      who in connivance with MMS, and SKD, ensured that the loan
      component was returned to the bank, cannot be said to have been
      established. [Para 24][1006-E-G]


H
   UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE             991


     Union of India v. H.C. Goel [1964] 4 SCR 718 ; T.N.C.S.   A
     Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255; B.C.
     Chaturvedi v. Union of India (1995) 6 SCC 749 : [1995]
     4 Suppl. SCR 644; Bank of India v. Degala
     Suryanarayana (1999) 5 SCC 762 : [1999] 3 SCR 824;
     Punjab & Sind Bank v. Daya Singh (2010) 11 SCC
                                                               B
     233 : [2010] 9 SCR 71; Moni Shankar v. Union of India
     (2008) 3 SCC 484 : [2008] 3 SCR 871; State Bank of
     Bikaner and Jaipur v. Nemi Chand Nalwaya (2011) 4
     SCC 584 : [2011] 3 SCR 589; Roop Singh Negi v.
     Punjab National Bank (2009) 2 SCC 570 : [2008] 17
     SCR 1476; J.D. Jain v Management of State Bank of         C
     India 1982 (1) SCC 143 : [1982] 2 SCR 227; State
     Bank of India v Hemant Kumar 2011 (2) SCC 22 :
     [2011] 4 SCR 280, In Administrative Law, 2nd edn., p.
     584 – relied on.
     UP State Road Transport Corporation v Har Narain          D
     Singh (1998) 9 SCC 220; State Bank of India v Ram
     Dinkar Punde (2006) 7 SCC 212: [2006] 4 Suppl. SCR
     511; Government of A.P & Ors. v Mohd. Narsulla Khan
     (2006) 2 SCC 373: [2006] 1 SCR 911; Sher Bahadurv.
     Union of India & Ors (2002) 7 SCC 141 : [2002] 1
     Suppl. SCR 568; Narinder Mohan Arya v United India        E
     Insurance Co. Ltd (2006) 4 SCC 713: [2006] 3 SCR
     932 – referred to.
                     Case Law Reference
(1998) (9) SCC 220           referred to             Para 6
                                                               F
[2006] 4 Suppl. SCR 511      referred to             Para 6
[2006] 1 SCR 911             referred to             Para 6
[2002] 1 Suppl. SCR 568      referred to             Para 14
[2006] 3 SCR 932             referred to             Para 14
                                                               G
[1964] 4 SCR 718             relied on               Para 16
(2006) 2 SCC 255             relied on               Para 17
[1995] 4 Suppl. SCR 644      relied on               Para 17
[1999] 3 SCR 824             relied on               Para 18
                                                               H
992               SUPREME COURT REPORTS                       [2022] 3 S.C.R.


A     [2010] 9 SCR 71                      relied on              Para 18
      [2008] 3 SCR 871                     relied on              Para 18
      [2011] 3 SCR 589                     relied on              Para 19
      [2008] 17 SCR 147                    relied on              Para 23
B     [1982] 2 SCR 227                     relied on              Para 23
      [2011] 4 SCR 280                     relied on              Para 23
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8258
      of 2009.
C           From the Judgment and Order dated 16.12.2008 of the High Court
      of Calcutta at Calcutta in FMA No.2696 of 2007.
           Rajesh Kumar Gautam, Anant Gautam, Nipun Sharma, Madhur
      Tewatia for M/s Mitter & Mitter Co., Advs. for the Appellant.
            Biswaroop Bhattacharya, Kunal Chatterji, Ms. Maitrayee
D     Banerjee, Partha Sil, Advs. for the Respondent.
               The Judgment of the Court was delivered by
               S. RAVINDRA BHAT, J.
             1. The appellant (hereafter called “the bank”) is aggrieved by a
E     judgment of the Calcutta High Court1. By the impugned judgment, the
      division bench set aside the decision of a learned single judge of the
      High Court; the single judge had dismissed the challenge by the respondent
      (writ petitioner- hereafter called “the employee”) to his dismissal from
      the bank’s service.
F            2. The employee was initially appointed as a cashier-cum-clerk
      by the bank, on 18.01.1971. Later, he was promoted to Junior
      Management Officer Grade Scale-1. He served as branch manager of
      the bank’s Chandabila branch from 14.12.1988 to 30.05.1990. Disciplinary
      proceedings were initiated against him when a charge sheet on 23.10.1997
      alleging his complicity in five major charges (stated in paragraph 15
G
      below) was issued by the bank. The charge sheet was issued seven
      years after he was transferred from the Chandabila branch. During this
      time several audits were condcted in terms of the norms stipulated by
      the Reserve Bank of India.

      1
H         Dated 16.12.2008 in FMA 2696/2007.
    UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                          993
                 [S. RAVINDRA BHAT, J.]

       3. The allegations against the employee pertained to the period       A
when he was posted as Manager in the said Chandabila branch. The
charge sheet alleged that he disbursed loan in favour of twelve fictitious
persons in connection with the Integrated Rural Development Project
(hereafter called “IRDP”) introduced by the Central Government. The
loan had two components wherein 50% i.e., 5,000/- was repayable
                                                                             B
term and the remaining 50% i.e., 5,000/- was subsidy. In terms of the
scheme, 93 applications were received which were to be examined and
the applicants identified on the basis of joint inspection by the bank and
the Gram Panchayat concerned. Once the identified applications were
forwarded to the District Rural Development Agency (hereafter called
“DRDA”) the latter had to submit the subsidy amount. The bank alleged        C
that the applications were forwarded to DRDA which in turn released
  4,68,833/- towards subsidy. However, the bank’s subsidy register
reflected only 4,08,833/-, and did not reflect the remainder of 60,000/
- along with the names of the twelve beneficiaries who purportedly
received the said amount. The bank also alleged that the loan register
                                                                             D
showed that the loan and the subsidy was given to twelve beneficiaries
against SSI account nos. 45/90 - 56/90. The employee / respondent denied
the allegations. Other charges were that the employee, in connivance
with another employee, deliberately ensured that the relevant papers
were missing; more seriously it was alleged that the amount of 60,000/
- forming the subsidy component, (of the total 1,20,000/- disbursed to       E
the beneficiaries) was misappropriated. The employee denied these
allegations. The bank proceeded to conduct an enquiry.
       4. The enquiry officer submitted his report on 05.05.2001. The
report, inter alia, held that Sri Haradhan Bera, Pradhan of Chandabila
Gram Panchyat, identified those persons claiming to be beneficiaries, in     F
the enquiry. The enquiry officer relied on the evidence of seven
beneficiaries, who deposed that no loan amount was disbursed, and that
they had not received any reminder or letter from the bank, regarding
return of loan amount and had not affixed their thumb impressions on
the forms. The report also indicted the employee / respondent for
transferring the amounts to Sri Madan Mohan Saha, another employee           G
(CCG) of the bank. Furthermore, the report placed strong reliance on a
confessional statement made by others charged, including Sri Subhendu
Dash, Ex-Pradhan of Chandabila at the time of the incident (document
X, photocopy of the alleged confession dated 03.03.1994). The enquiry
officer therefore, found that the employee was guilty of the charges.        H
994             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     The report noted, interestingly, that the loan amount (i.e., 60,000/- out
      of 1,20,000/-) was deposited in the account of the bank, and that the
      balance was misappropriated.
            5. By an order dated 07.10.2002, the Disciplinary Authority,
      accepted the report, and, relying on the past conduct of the respondent,
B     terminated his employment. The employee appealed this order; the
      appellate authority however, dismissed the appeal by order dated
      28.04.2003. The aggrieved employee approached the Calcutta High Court,
      under Article 226 of the Constitution.2 By a judgment and order3 that
      writ petition was rejected. The employee then filed an appeal. By the
      impugned order, the division bench allowed that appeal, and set aside the
C     orders of the appellate and disciplinary authorities.
             Contentions of the bank
             6. It is argued on behalf of the bank that the High Court re-
      appreciated the evidence and altered the finding on facts of the disciplinary
      authority on the ground of insufficiency of evidence. This was contrary
D
      to settled proposition that courts, in judicial review, cannot weigh the
      evidence appreciated by a domestic tribunal. It was urged that the High
      Court erred in acting as an appellate authority and such action is in the
      teeth of law laid down by this court in several decisions, such as UP
      State Road Transport Corporation v Har Narain Singh 4; State Bank
E     of India v Ram Dinkar Punde5 and Government of A.P & Ors. v
      Mohd. Narsulla Khan6. Counsel further argued that the impugned
      judgment was in error in holding that the enquiry officer’s finding of guilt,
      leading to the employee’s dismissal, was not based on any evidence. It
      was argued that the High Court proceeded to appreciate evidence, premised
      on which its conclusion about the enquiry report not being based on evidence,
F     was recorded. This approach was unsustainable.
             7. It was next urged that the High Court failed to appreciate that
      as far as charge no. 1 was concerned, the employee had authenticated
      the entries made by Sri Madan Mohan Saha, ex-CCG and, therefore, his
      plea that he could not be faulted with for not maintaining the subsidy
G     register, could not be sustained or accepted.

      2
        W.P. No. 1391 (W)/ 2004.
      3
        Dated 15.05.2007.
      4
        1998 (9) SCC 220.
      5
        2006 (7) SCC 212.
H     6
        2006 (2) SCC 373.
    UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                              995
                 [S. RAVINDRA BHAT, J.]

       8. It was argued on behalf of the bank that the impugned judgment         A
could not be sustained, because its conclusion of inadequate evidence to
prove that loan and subsidy had been disbursed to twelve fictitious persons
was erroneous. This conclusion was in spite of the fact that seven
individuals deposed that they had not received any loan and subsidy
amount nor did they affix their thumb impression on the applications.
                                                                                 B
Likewise, the court could not have gone into the question of whether the
confession statement of Sri Madan Mohan Saha and Sri Subhendu Kumar
Das dated 03.03.1994 was not admitted into evidence. This, it was
submitted, was contrary to the record. Counsel highlighted that the
contents of that confession were not denied by the employee.
       9. Learned counsel argued that the impugned judgment was                  C
erroneous as it held that the respondent employee had been prejudiced
in the enquiry due to non- production of certain documents claimed by
him. Those documents were not produced as they were untraceable in
the branch or regional office. In fact, charge no.4 against the delinquent
officer dealt with unauthorised removal of those very documents.
                                                                                 D
       10. It was lastly urged that the impugned judgment, if allowed to
stand, would undermine discipline in banks. Elaborating on this aspect,
learned counsel submitted that this court has repeatedly held that public
servants such as bank officials and managers are expected to display a
degree of integrity of a higher standard than other employees, given that
they have to deal with others’ monies. In the present case, the disciplinary     E
and appellate authorities acted within their rights in considering the record,
appreciating the evidence and concluding that there was sufficient
material to impose the penalty of dismissal. The High Court set at naught
this fact appreciation, and based on its re-appreciation of the evidence,
set aside the penalty. This, it was urged, would be prejudicial to the           F
interests of the bank.
       Contentions of the employee
       11. Learned counsel for the respondent employee, Mr. Kunal
Chatterji, urged this court not to interfere with the impugned judgment.
He contended that the employee was found guilty in the enquiry
                                                                                 G
proceedings. Those findings were not based on any evidence and were
purely conjectural. The findings were clearly perverse and therefore,
the penalty imposed was not justified or legal. It was urged that though
seven borrowers deposed favorably as far as the employee was
concerned, only the Ex-Pradhan deposed against the respondent.
However, he was held guilty without independent verification of identity         H
996               SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     of persons. It was underlined that no evidence was adduced about who
      liquidated the loan. The entire conclusions in the enquiry report were
      based on surmises.
             12. Mr. Chatterji urged that the respondent left the branch in June
      1990. The chargesheet was issued much later, and the enquiry was
B     conducted seven years later. Counsel urged that the management
      withheld documents which were directed to be produced in the enquiry.
      This caused serious prejudice to the respondent as their production would
      have vindicated his position. It was submitted that the enquiry officer
      was swayed by photostat copy of a document which claimed to be the
      admission of guilt of misappropriation of funds signed, by the Ex-Pradhan
C     and ex-cashier Sri Madan Mohan Saha in presence of manager of the
      bank on 03.03.1994. Those documents were not produced; a photocopy
      was adduced in the enquiry. Moreover, the respondent employee had
      neither signed on it, nor admitted it. Therefore, the consideration of that
      document to nail the respondent’s guilt was clearly an unreasonable and
      perverse reason, and thus the respondent could not be bound by the
D
      contents of that document.
             13. Mr. Chatterji argued that though the scope of judicial review
      in departmental proceedings is restricted, clearly where it is shown that
      the outcome of the enquiry is either procedurally unfair or illegal, or its
      outcomes are based on findings that are based on irrelevant facts, without
E     taking into consideration relevant facts, or are manifestly unreasonable,
      the court in exercise of its jurisdiction under Article 226 of the Constitution,
      can (and does) interfere with the punishment imposed.
             14. Learned counsel submitted that two persons whose confession
      was allegedly recorded in the document (i.e., Sri Madan Mohan Saha
F     and Sri Subhendu Kumar Das) were not examined as witnesses to verify
      it. Despite these glaring infirmities with respect to the evidence recorded
      which did not point to the respondent’s complicity, he was held guilty.
      This finding was perverse and not based on sufficient evidence. Counsel
      submitted that sufficiency of evidence means existence of some evidence
      which links the charged officer with the misconduct alleged against him.
G     He relied on Sher Bahadur v. Union of India & Ors7 and Narinder
      Mohan Arya v United India Insurance Co. Ltd8 to urge that the High
      Court could interfere with findings of an enquiry which were not based
      on any evidence.
      7
          (2002) 7 SCC 141.
H     8
          (2006) 4 SCC 713.
    UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                          997
                 [S. RAVINDRA BHAT, J.]

       15. The division bench, in the impugned order, after considering      A
the entire record, noticed the following:
       (a) MW 1, Sri Satikinkar Deb, Deputy Manager, Sepai Bazar
Branch stated that on the basis of the handwriting of the subsidy register
and also from his own experience that Sri Madan Mohan Saha used to
maintain the register on most occasions. There was no evidence that the      B
appellant ever maintained the said register. During enquiry MW 1 stated
that there was authentication of the respondent in some cases and by
himself in many cases in the subsidy register when the amount was
debited. It was Sri Madan Mohan Saha’s duty as the cashier to maintain
the subsidy register, and he failed to discharge his duty. The said amount
                                                                             C
was credited to marginal deposit account. The matter of non-recording
of the said subsidy amount in the subsidy register was due to Sri Madan
Mohan Saha’s omission. For that irregularity the respondent could not
be held responsible; he did not deliberately conceal the fact with any
malafide intention.
                                                                             D
       (b) With respect to the charge of depositing subsidy in the account
of twelve fictitious beneficiaries, findings were based on the evidence of
seven of those beneficiaries, whose names were actually shown in the
record. These witnesses denied having received or returned the loans.
They were identified by Sri Haradhan Bera (MW2), subsequent Pradhan,
Chandabila Gram Panchayat. MW2’s identity was challenged at the              E
outset by the respondent; he did not produce any identity proof. This
was not dealt with by the enquiry officer; and the identity of the seven
borrowers/ beneficiaries was not independently proved.
       (c) The third charge of misappropriation of the entire loan and
subsidy amount in connivance with Sri Subhendu Kumar Das and Sri             F
Madan Mohan Saha was based on the confessional statement document
marked ‘X’. That document was not exhibited. The employee was neither
its author, nor signatory. Therefore, the document could not be used
against him to fasten him with liability for alleged misappropriation. The
finding based on a document not even admitted into evidence and not
                                                                             G
signed and accepted by the appellant was perverse.
       (d) The finding on charge relating to removal of documents was
not proved, since it was based on no evidence. The respondent was
transferred out of the branch in 1990 and the proceedings were initiated
in 1997. Sri Madan Mohan Saha was working in the branch after the
                                                                             H
998                 SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A     respondent’s transfer. So, it could not conclusively be established that
      the respondent removed those documents to conceal the misappropriation
      and to destroy them.
            (e) The division bench also observed that with respect to the last
      charge the enquiry officer recorded that:
B
                  “The Management side could not establish the reason for
                  crediting of Rs. 34,000.00 on 28.06.94 to different 28 loan
                  accounts out of the fund transferred from S.S. Account of Sri
                  Madan Mohan Saha to Joint S.S. Account of Sri Haradhan
                  Bera on 28.06.94. Moreover, Sri Haradhan Bera in his
C                 evidence avoided the matter for some reasons best known to
                  him. But for the above, there is no effect on the charge No.5
                  which states only that C.S.O. sent a Demand Draft of Rs.
                  25,000.00 dated 22,04, 1994 and for Rs. 10,000.0 dated
                  30.05.1994 to Shri Madan Mohan Saha and Shri Saha
D                 deposited the amounts of drafts in his own and joint S.S.
                  Accounts. Thereafter transfer of Rs. 25,000.00 was made from
                  S.S. Account No. 1110 of Sri Haradhan Bera and Shri
                  Prafullah Mahata on 30.03.1994…”
                  Discussion and conclusions
E            16. In one of the earliest decisions of Union of India v. H.C.
              9
      Goel relating to departmental proceedings, this court observed that
      where a public servant is punished for misconduct after a departmental
      enquiry is conducted, a clear case where interference under Article 226
      of the Constitution is warranted is when there is no evidence to establish
F     the official’s guilt.
                  “22.… The two infirmities are separate and distinct though,
                  conceivably, in some cases both may be present. There may
                  be cases of no evidence even where the Government is acting
                  bona fide; the said infirmity may also exist where the
G                 Government is acting mala fide and in that case, the
                  conclusion of the Government not supported by any evidence
                  may be the result of mala fides but that does not mean that if
                  it is proved that there is no evidence to support the conclusion

      9
H         (1964) 4 SCR 718.
UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                      999
             [S. RAVINDRA BHAT, J.]

 of the Government, a writ of certiorari will not issue without      A
 further proof of mala fides. That is why we are not prepared
 to accept the learned Attorney General’s argument that since
 no mala fides are alleged against the appellant in the present
 case, no writ of certiorari can be issued in favour of the
 respondent.
                                                                     B
 23. That takes us to the merits of the respondent’s contention
 that the conclusion of the appellant that the third charge
 framed against the respondent had been proved, is based on
 no evidence. The learned Attorney General has stressed before
 us that in dealing with this question, we ought to bear in mind
 the fact that the appellant is acting with the determination to     C
 root out corruption, and so, if it is shown that the view taken
 by the appellant is a reasonably possible view this Court
 should not sit in appeal over that decision and seek to decide
 whether this Court would have taken the same view or not.
 This contention is no doubt absolutely sound. The only test         D
 which we can legitimately apply in dealing with this part of
 the respondent’s case is, is there any evidence on which a
 finding can be made against the respondent that Charge 3
 was proved against him? In exercising its jurisdiction under
 Article 226 on such a plea, the High Court cannot consider
 the question about the sufficiency or adequacy of evidence          E
 in support of a particular conclusion. That is a matter which
 is within the competence of the authority which deals with the
 question; but the High Court can and must enquire whether
 there is any evidence at all in support of the impugned
 conclusion. In other words, if the whole of the evidence led        F
 in the enquiry is accepted as true, does the conclusion follow
 that the charge in question is proved against the respondent?
 This approach will avoid weighing the evidence. It will take
 the evidence as it stands and only examine whether on that
 evidence legally the impugned conclusion follows or not.
 Applying this test, we are inclined to hold that the respondent’s   G
 grievance is well founded, because, in our opinion, the finding
 which is implicit in the appellant’s order dismissing the
 respondent that Charge 3 is proved against him is based on
 no evidence.”
                                                                     H
1000                SUPREME COURT REPORTS                            [2022] 3 S.C.R.


 A            17. Apart from cases of “no evidence”, this court has also indicated
       that judicial review can be resorted to. However, the scope of judicial
       review in such cases is limited10. In B.C. Chaturvedi v. Union of India11
       a three-judge bench of this court ruled that judicial review is not an
       appeal from a decision but a review of the manner in which the decision
       is made. It is meant to ensure that the individual receives fair treatment
 B
       and not to ensure that the conclusion which the authority reaches is
       necessarily correct in the eyes of the court. The court/tribunal in its
       power of judicial review does not act as an appellate authority; it does
       not re-appreciate the evidence. The court held that:
                 “12. Judicial review is not an appeal from a decision but a
 C               review of the manner in which the decision is made. Power of
                 judicial review is meant to ensure that the individual receives
                 fair treatment and not to ensure that the conclusion which the
                 authority reaches is necessarily correct in the eye of the court.
                 When an enquiry is conducted on charges of misconduct by
 D               a public servant, the Court/Tribunal is concerned to determine
                 whether the enquiry was held by a competent officer or
                 whether rules of natural justice are complied with. Whether
                 the findings or conclusions are based on some evidence, the
                 authority entrusted with the power to hold enquiry has
                 jurisdiction, power and authority to reach a finding of fact
 E               or conclusion. But that finding must be based on some
                 evidence. Neither the technical rules of the Evidence Act nor
                 of proof of fact or evidence as defined therein, apply to
                 disciplinary proceeding. When the authority accepts that
                 evidence and conclusion receives support therefrom, the
 F               disciplinary authority is entitled to hold that the delinquent
                 officer is guilty of the charge. The Court/Tribunal in its power
                 of judicial review does not act as appellate authority to
                 reappreciate the evidence and to arrive at its own independent
                 findings on the evidence. The Court/Tribunal may interfere
                 where the authority held the proceedings against the
 G               delinquent officer in a manner inconsistent with the rules of
                 natural justice or in violation of statutory rules prescribing
                 the mode of enquiry or where the conclusion or finding

       10
            T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255.
       11
 H          (1995) 6 SCC 749.
     UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                          1001
                  [S. RAVINDRA BHAT, J.]

       reached by the disciplinary authority is based on no evidence.         A
       If the conclusion or finding be such as no reasonable person
       would have ever reached, the Court/Tribunal may interfere
       with the conclusion or the finding, and mould the relief so as
       to make it appropriate to the facts of each case.
       13. The disciplinary authority is the sole judge of facts. Where       B
       appeal is presented, the appellate authority has co-extensive
       power to reappreciate the evidence or the nature of
       punishment. In a disciplinary enquiry, the strict proof of legal
       evidence and findings on that evidence are not relevant.
       Adequacy of evidence or reliability of evidence cannot be
       permitted to be canvassed before the Court/Tribunal. In Union          C
       of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4
       SCR 718], this Court held at p. 728 that if the conclusion,
       upon consideration of the evidence reached by the
       disciplinary authority, is perverse or suffers from patent error
       on the face of the record or based on no evidence at all, a            D
       writ of certiorari could be issued.”
       18. Other decisions have ruled that being a proceeding before a
domestic tribunal, strict rules of evidence, or adherence to the provisions
of the Evidence Act, 1872 are inessential. However, the procedure has
to be fair and reasonable, and the charged employee has to be given           E
reasonable opportunity to defend himself (ref: Bank of India v. Degala
Suryanarayana12 a decision followed later in Punjab & Sind Bank v.
Daya Singh13). In Moni Shankar v. Union of India14 this court outlined
what judicial review entails in respect of orders made by disciplinary
authorities:
                                                                              F
       “17. The departmental proceeding is a quasi-judicial one.
       Although the provisions of the Evidence Act are not applicable
       in the said proceeding, principles of natural justice are
       required to be complied with. The courts exercising power of
       judicial review are entitled to consider as to whether while
       inferring commission of misconduct on the part of a delinquent         G
       officer relevant piece of evidence has been taken into

12
   (1999) 5 SCC 762.
13
   (2010) 11 SCC 233.
14
   (2008) 3 SCC 484.                                                          H
1002                SUPREME COURT REPORTS                      [2022] 3 S.C.R.


 A              consideration and irrelevant facts have been excluded
                therefrom. Inference on facts must be based on evidence which
                meet the requirements of legal principles. The Tribunal was,
                thus, entitled to arrive at its own conclusion on the premise
                that the evidence adduced by the Department, even if it is
                taken on its face value to be correct in its entirety, meet the
 B
                requirements of burden of proof, namely, preponderance of
                probability. If on such evidence, the test of the doctrine of
                proportionality has not been satisfied, the Tribunal was within
                its domain to interfere.”
             This court struck a similar note, in State Bank of Bikaner and
 C     Jaipur v. Nemi Chand Nalwaya15, where it was observed that:
                “If the enquiry has been fairly and properly held and the
                findings are based on evidence, the question of adequacy of
                the evidence or the reliable nature of the evidence will not be
                grounds for interfering with the findings in departmental
 D              enquiries. Therefore, courts will not interfere with findings of
                fact recorded in departmental enquiries, except where such
                findings are based on no evidence or where they are clearly
                perverse. The test to find out perversity is to see whether a
                tribunal acting reasonably could have arrived at such
 E              conclusion or finding, on the material on record”.
              19. The bank is correct, when it contends that an appellate review
       of the materials and findings cannot ordinarily be undertaken, in
       proceedings under Article 226 of the Constitution. Yet, from H.C. Goel
       onwards, this court has consistently ruled that where the findings of the
 F     disciplinary authority are not based on evidence, or based on a
       consideration of irrelevant material, or ignoring relevant material, are
       mala fide, or where the findings are perverse or such that they could
       not have been rendered by any reasonable person placed in like
       circumstances, the remedies under Article 226 of the Constitution are
       available, and intervention, warranted. For any court to ascertain if any
 G     findings were beyond the record (i.e., no evidence) or based on any
       irrelevant or extraneous factors, or by ignoring material evidence,
       necessarily some amount of scrutiny is necessary. A finding of “no
       evidence” or perversity, cannot be rendered sans such basic scrutiny of

       15
            (2011) 4 SCC 584
 H
        UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                          1003
                     [S. RAVINDRA BHAT, J.]

the materials, and the findings of the disciplinary authority. However, the      A
margin of appreciation of the court under Article 226 of the Constitution
would be different; it is not appellate in character.
       20. In the present case, the impugned judgment discloses scrutiny
of the record. The same level of scrutiny is absent in the decision of the
learned single judge. That the division bench conducted the kind of              B
scrutiny that it did, cannot be a factor to hold its decision erroneous. In
this context, it would be worth recollecting Bernard Schwartz16 that
judicial review- of administrative decisions: warrants a minimum level of
scrutiny:
          “If the scope of review is too broad, agencies are turned into         C
          little more than media for the transmission of cases to the
          courts. That would destroy the values of agencies created to
          secure the benefit of special knowledge acquired through
          continuous administration in complicated fields. At the same
          time, the scope of judicial enquiry must not be so restricted
          that it prevents full enquiry into the question of legality. If        D
          that question cannot be properly explored by the judge, the
          right to review becomes meaningless. It makes judicial review
          of administrative orders a hopeless formality for the litigant.
          It reduces the judicial process in such cases to a mere feint.’’
       21. Coming now to the charges, it can be seen that MW 1, the              E
management witness, who deposed about the procedure in the bank, for
recording entries in the subsidy register, clearly stated that at the relevant
time, some entries were made by the respondent, and some by Sri Madan
Mohan Saha, who “used to maintain the subsidy register on most
occasions.” He also deposed that it was Sri Madan Mohan Saha’s duty
as the cashier to maintain the subsidy register. Saha failed to discharge        F
that duty. In view of this evidence, and no contrary documentary evidence
casting the primary responsibility to maintain the subsidy register on the
respondent, the impugned judgment, in this court’s opinion, cannot be
faulted with in concluding that there was no material to prove the first
charge against the employee. As regards the second charge of                     G
misappropriation of subsidy amount from twelve individuals, whose names
were fraudulently introduced, the bank relied on the depositions of seven
persons. They were identified by Sri Haradhan Bera (MW2), himself at
the time Pradhan, Chandabila Gram Panchayat. MW 2’s identity was
16
     In Administrative Law, 2 nd edn., p. 584.                                   H
1004            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


 A     challenged at the outset by the respondent; he did not produce any identity
       proof. The enquiry officer did not rule on this. The impugned judgment
       concluded that in the absence of proof of Sri Haradhan Bera’s identity,
       and any independent material, with respect to the seven alleged
       beneficiaries, their identity was not independently proved. Additionally,
       there had to be some material, linking the employee (respondent) with
 B
       the applications, introducing the borrowers, etc. MW-1, the subsequent
       manager, clearly deposed in reply to a query (question no. 8) as to who
       used to “identify the borrowers” before sanction and disbursement of
       IRDP loans, that the “Pradhan/Member of Gram Panchayat” used
       to identify the beneficiaries. Such being the case, the involvement of the
 C     respondent employee had to be shown by more definitive evidence. It is
       again a matter of record, that the then Pradhan of the Gram Panchayat,
       Sri Subhendu Kumar Das, identified the borrowers. In these
       circumstances, even in departmental proceedings, there had to be some
       overt evidence, and not mere suspicion, to support a valid finding of
       complicity of the respondent. In these circumstances, the impugned
 D
       judgment cannot be faulted with in its findings on the second charge.
             22. The third charge of misappropriation of the entire loan and
       subsidy amount in connivance with Sri Subhendu Kumar Das and Sri
       Madan Mohan Saha was based on a confessional statement (document
       ‘X’). A copy of that document is on record. The relevant part reads as
 E     follows:
             “Today on dated 3.3.94, in the presence of Manager babu of
             UBI, Chandabila Branch the statement of Cashier babu
             (Madan Mohan Saha) has been recorded in the presence of
             following persons.
 F
             The loan amount in respect of 1 O IRDP loan from A/c. No.
             SSl- 45/90 to 54/90 were equally shared by we four of us,
             namely (1) Sri Subhendu Das, (2) Sri Biswanath
             Bhattacharyya, (Manager)
             (3) Sri Madan Mohan Saha (Cashier), (4) Basudeb Roy
 G
             (Peon). The above loan amount were liquidated by we the
             four persons and subsidy amount were also received by four
             of us.
                                      Sd/- Sri Subhendu Kumar Das, 3/3/94
 H                                         Sd/- Madan Mohan Saha, 3/3/94
       UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                       1005
                    [S. RAVINDRA BHAT, J.]

          The above mentioned discussion and confession were held            A
          today at 12.30 P.M. in my presence. The discussions were
          completed peacefully.
                                                 Sd/- Manager - 3/3/9 4
                                            With Manager’s Office Seal.
                                                               Attested      B
                                                  By Manager with seal
                                                              15.3.94"
       The document was witnessed by six persons (Sri S.K Sukhjan
Ali, Sri Santosh Kumar Saha, Sri Trilochan Singh, Sri Suresh Chandra         C
Das, Sri Nabin Suri and Sri S.K. Washef Hussain). The document was
not exhibited. Undeniably:
          (a) The respondent did not sign the confession.
       (b) The confessional statement dated 03.03.1994 was made by
Sri Subhendu Kumar Das and Sri Madan Mohan Saha, which was                   D
attested by an officer of the bank.
      (c) The confession was an admission as far as its makers were
concerned. The impugned judgment held that this document could not
be used against the employee respondent to fasten him with liability for
alleged misappropriation. The finding based on a document not even           E
admitted into evidence and not signed and accepted, by the appellant
was held to be perverse.
      23. This court previously had an occasion to deal with a
departmental proceeding that culminated in a penalty, where the enquiry
was based on the confessional statements made to the police and no           F
other material. The court, in Roop Singh Negi v. Punjab National
Bank17 held such evidence to be inadequate:
          “15. We have noticed hereinbefore that the only basic
          evidence whereupon reliance has been placed by the enquiry
          officer was the purported confession made by the appellant         G
          before the police. According to the appellant, he was forced
          to sign on the said confession, as he was tortured in the police
          station. The appellant being an employee of the Bank, the
          said confession should have been proved. Some evidence
17
     (2009) 2 SCC 570.                                                       H
1006                SUPREME COURT REPORTS                        [2022] 3 S.C.R.


 A               should have been brought on record to show that he had
                 indulged in stealing the bank draft book. Admittedly, there
                 was no direct evidence. Even there was no indirect evidence.
                 The tenor of the report demonstrates that the enquiry officer
                 had made up his mind to find him guilty as otherwise he would
                 not have proceeded on the basis that the offence was committed
 B
                 in such a manner that no evidence was left.”
              There are decisions of this court (J.D. Jain v Management of
       State Bank of India18 and State Bank of India v Hemant Kumar19)
       where witness depositions which stated that the charged employee had
       previously confessed or admitted his role and guilt, were held to be
 C
       admissible. In the present case, however, the confessional statement
       was not by the respondent. Those who authored the confession, did
       not depose in the enquiry. Furthermore, no witness who heard the authors
       of the confession, deposed to it. At best then, that document bound the
       authors, not third parties, like the respondent. The enquiry officer clearly
 D     erred by relying on such extraneous matters, as the respondent could
       not be made a scapegoat for the confession of others, especially with
       regard to his role. The bank’s charge about his complicity had to be
       proved by evidence. This document, containing others’ confession, could
       not have been used against him.
 E            24. As far as the other two charges go, the division bench correctly
       held that there was no evidence to show that the respondent had removed
       the documents, from the bank. Importantly, he was charged seven years
       after the alleged incident; by that time other managers had taken over
       the branch. As regards the last charge of transferring amounts through
       three demand drafts from the account of Sri Madan Mohan Saha to
 F
       Joint S.S. Account of Sri Haradhan Bera on 28.06.94 was concerned,
       the enquiry officer noted that, “Sri Haradhan Bera in his evidence
       avoided the matter for some reasons best known to him.” In the
       absence of any other material, the finding that the amounts had been
       misappropriated by the respondent, who in connivance with Sri Madan
 G     Mohan Saha, and Sri Subhendu Kumar Das, ensured that the loan
       component was returned to the bank, cannot be said to have been
       established.

       18
            1982 (1) SCC 143.
       19
 H          2011 (2) SCC 22.
     UNITED BANK OF INDIA v. BISWANATH BHATTACHARJEE                             1007
                  [S. RAVINDRA BHAT, J.]

       25. An interesting side is this - Sri Madan Mohan Saha, who               A
confessed to the misconduct, was charged and proceeded with
departmentally. The confession of guilt, which he owned up to,
nevertheless resulted in a mild penalty of withholding of increments.
However, the respondent, who did not admit his guilt, or confess to it,
and in respect of whom there was no credible evidence, even going by
                                                                                 B
the lower standards of acceptable proof in departmental inquires, was
held to be guilty and visited with the penalty of dismissal. A reading of
the disciplinary authority’s order reveals that his past record of minor
misconduct played a major role in determining his guilt, despite lack of
evidence, and the extreme penalty of dismissal.
       26. In view of the foregoing discussion, and having regard to the         C
record, the impugned judgment cannot be faulted with. The appeal is
unmerited. The appellant bank is directed to ensure that the respondent’s
services are deemed to be reinstated, and calculate all his benefits,
including arrears of salary, pay increase (as applicable), increments, and
all consequential benefits, and calculate his terminal benefits, and fix his     D
pension, if admissible to him under the bank’s regulations. The determination
of these benefits shall be undertaken, and the payment of all amounts be
made, within three months from date of this judgment. The appeal is
dismissed without order on costs.
                                                                                 E
Ankit Gyan                                                   Appeal dismissed.
(Assisted by : Aarsh Choudhary, LCRA)




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