Vs. Canara Bank & Ors  Insc 99 (18 February 2003)
V. Patil & Arijit Pasayat. Arijit Pasayat J.
of dismissal from service having been restored by Division Bench of Delhi High
Court setting aside judgment of the learned Single Judge, this appeal has been
background filtering out unnecessary details is as follows:
(hereinafter referred to as 'the employee') joined services of The Lakshmi
Commercial Bank in 1976 as a Clerk. The said bank was merged with Canara Bank
(hereinafter referred to as 'the employer') in October, 1985. As a consequence,
services of the employee stood transferred to the employer-Bank. He was posted
as a Clerk in Deen Dayal Upadhyay Marg, New Delhi Branch and was deputed to
work at AIWC extension of the said branch.
customer of the Bank i.e. S.V. Deshpande, advocate lodged a complaint with the
police stating that there has been unauthorized withdrawal of Rs.1.07 lakhs
from his account in the Bank. An internal investigation was also undertaken by
the employer in respect of the complaint.
of the preliminary investigation was submitted and the employee was served with
charge sheet along with imputations of misconduct to the effect that the
employee was responsible for the unauthorized withdrawal from the customer's
Officer was appointed to hold the enquiry and along with other witnesses the
evidence of Handwriting expert Shri V.K. Sakhuja was tendered. The proceedings
in the enquiry were concluded on 29.4.1993. Both the parties were asked to
submit their written submissions. At this stage, the employee filed an
application for further cross- examination of an Handwriting expert. Said
prayer was rejected on 10th
May, 1993. The Enquiry
Officer submitted his report and the employee was also furnished with a copy to
make his submissions as regards the findings. The written submissions were
submitted on 24th June,
1995. Findings of the
Enquiry Officer were recorded. Thereafter order of dismissal was passed.
Disciplinary Authority concurred with findings of the Enquiry Officer after
taking into account the submissions made by the employee. The charge-sheet
contained the following allegations:
the 11th of May, 1992, a charge- sheet was issued to the petitioner in the
following terms:- Whereas, there are prima facie grounds for believing that you
have committed gross misconduct, the particulars whereof are given below, this
charge sheet has been drawn up against you and you are required to submit me
within 15 days of receipt of this charge sheet a statement in writing setting
forth your defence, if any and showing cause as to why suitable action should
not be taken against you.
have been working at Canara Bank, DDU Marg, New Delhi Branch since 7.3.1986.
S.V. Deshpande, Advocate, Supreme Court of India is maintaining his SB a/c
No.4272 with AIWC Extn. counter of DDU Marg, New Delhi Branch. On 23.12.1991 a cheque
book authorized to be issued in S.B. a/c no.4272 to one Sri Mohinder kumar on
the strength of a purported letter in violation of the laid down procedure of
a total of Rs.1,07,000/- was withdrawn from his account by utilizing 5 cheques
out of the above said cheque book, details which are given below:
No. Amount 26.12.91 460827 Rs.15,000/- 28.12.91 460823 Rs.15,000/- 31.12.91
460821 Rs.15,000/- 31.12.91 460822 Rs.14,000/- 31.12.91 460826 Rs.50,000/- The
account holder as complained/disputed the above said withdrawals as well as
issuance of the cheque book no.460821 to 460830. The purported letter on the
basis of which the above said cheque book had been issued had also not been
found on records. The handwriting expert has confirmed that the signatures
appearing on the above said cheque are not that of Shri S.V. Deshpande, the
account holder and they are forged.
No.460826 for Rs.50,000/- was posted by you in the relative ledger on 31.12.91
though there was fictitious endorsement on the reverse of the cheque to give
creditability to the transaction.
expert has opined after examining your handwriting with that of the disputed
instruments in question that the signatures of the account holder appearing on
the above said 5 cheques and the endorsement on the back of the cheque No. 460826
for Rs.50,000/- is in your handwriting.
the above, it is evident that you by misusing your official position, in
collusion with someone else, got the above said cheque book issued in S.B. A/c
no.4272, utilised the cheque leaves in question by forging the signature of the
account holder and got the same presented to encash the cheques fraudulently.
your above said fraudulent acts you have caused damage to the property of the
bank thereby committed a gross misconduct within the meaning of Chapter-XI,
Regulation 3 Clause (j) of Canara Bank Service Code.
above said acts are also prejudicial to the interests of the bank thereby you
have committed a gross misconduct within the meaning of Chapter-XI, Regulation
3 Clause (j) of Canara Bank Service Code.
above said acts are also prejudicial to the interests of the bank thereby you
have committed a gross misconduct within the meaning of the Chapter-XI,
Regulation 3 Clause (m) of Canara Bank Service Code".
appeal was preferred by the employee before the prescribed appellate authority
who rejected the appeal. The employee challenged the findings culminating in
his order of dismissal by filing a writ petition before the High Court.
main plea which was advanced before the learned Single Judge was that the
Enquiry Officer should not have rested his decision on the opinion of the
Handwriting Expert. The entire case rested on suspicion and there was no
material to connect him with the alleged misconduct. Learned Single Judge
referring to the evidence recorded during the enquiry proceedings came to hold
that the conclusions arrived at by the Enquiry Officer were erroneous and no
credence should have been attached to the evidence of V.K. Sakhuja and his
evidence is no evidence at all. It was also held that the charges framed by the
Bank do not have sustainability in law. These observations came to be made by
learned Single Judge because of some adverse remarks made against V.K. Sakhuja
in three cases. The conclusions of learned Single Judge in paragraph 17 so far
as relevant read as follows:
fact that the Courts had made very strong stricture against the handwriting
expert is not disputed. In my view, Mr. Sakhuja is not a person who is
competent to speak about the handwriting or finger prints.
evidence is no evidence at all.
the charge issued by the bank is not sustainable in law. The findings by the
inquiry officer against the petitioner are not based on any evidence and, thus,
the order passed by the disciplinary authority cannot be sustained. In law
there is, no evidence against the petitioner. Thus, the order of the
disciplinary authority is wholly illegal and it cannot be sustained." In
appeal, the Division Bench observed that the High Court in exercise of the
power under Article 226 of the Constitution of India, 1950 (in short 'the
Constitution') does not act as an appellate authority and, therefore, the
learned Single Judge was not justified in interfering with the conclusions
arrived at by the disciplinary authority.
judgment of the High Court is under challenge.
counsel appearing for the appellant-employee submitted that there has been
denial of fair play. There is no material to connect the appellant with alleged
forgery which was the foundation for the disciplinary action. Report of the
Handwriting expert about whose credibility serious remarks were made has no
evidentiary value, and he is not a competent witness and his report which forms
the foundation for disciplinary action has to be ignored and if that is kept
out of consideration, there is no other material on which the allegations of
misconduct could be substantiated.
pointed out that when investigation was done initially, a report was submitted
by the Forensic Science Laboratory which did not find any material against the
employee and others. The employee was also denied an adequate opportunity to
submit his reply as regards the enquiry report. The charges related to two
transactions. One was posting of the cheque and the other related to forgery.
of the Handwriting expert is full of inconsistencies and the conclusion about
similarity in hand-writing in the disputed document and the admitted signatures
has been drawn erroneously. To prove his innocence the employee had requested the
authorities to hand over the enquiry to the Central Bureau of Investigation.
This request was made as the employee was convinced that the authorities were
bent upon removing him from service for union activities.
request was made for being represented by an advocate which was turned down.
The employee had requested for supply of certain documents which were not
acceded to causing thereby prejudice.
counsel for the respondents on the other hand submitted that the Division Bench
rightly considered the scope and ambit of judicial review in the matter of
disciplinary proceedings. The stand that the Handwriting expert's report cannot
be accepted without further corroboration is not the correct proposition in
law. Denial of the representation by an advocate was also justified because the
presenting officer was not an advocate or a person with law background. The
only area of dispute related to acceptability of the Handwriting expert's
employee who claimed to be a trade union activist is well versed with various
aspects relating to service jurisprudence, has cross-examined at length and
quite effectively the management witnesses. Therefore, there is no substance in
the plea that there was prejudice by refusal of permission to be represented by
an advocate. It was further submitted that no argument was advanced before the
High Court (either before learned Single Judge or the Division Bench) regarding
prejudice. It is also pointed out that the employee himself had accepted that
he committed careless mistakes, but took the plea that there was no criminal
intent. The authorities have analysed the job requirements of the post which
the employee held and discussed at great length as to how the requisite care
and caution were not exercised. A bare look at the endorsement on the back side
of the cheque would have aroused suspicion. The plea that many transactions
took place that day is clearly without substance because an employee of the
bank is required to be vigilant and any abnormality should have been noticed.
The customer was an advocate and he could not have mis-spelt the word
'signature' as appears on the reverse side of the cheque in question in the
endorsement. There was an unusual endorsement and withdrawal of Rs.50,000/- by
a bearer cheque. The unusual features should have aroused suspicion.
being so, the authorities were justified in drawing adverse remarks. The report
of the Handwriting expert is clear and cogent and has clearly spelt out the
areas of similarities in the disputed document and the admitted writings to
highlight as to how employee was the author of forgery.
start with the approach of the learned Single Judge as regards evidence of V.K.
Sakhuja is clearly erroneous.
if there were adverse remarks (which we find related to 1958-59) that did not
affect the credibility of his evidence to treat it as totally irrelevant and to
be no evidence in the eye of law. What was required was a careful analysis of
evidence, if it was brought to the notice of the authorities that his evidence
has been doubted in the past. Nothing could be shown to us as to how the report
in this particular case suffers from any infirmity. There is no finding
recorded by learned Single Judge to that effect. On that score alone the
Division Bench was justified in upsetting the learned Single Judge's decision.
45 and 73 of the Indian Evidence Act, 1872(in short 'the Evidence Act') deal
with opinion of experts and comparison of signature, writing or seal with
others admitted or proved. Section 45 itself provides that the opinions are
relevant facts. It is a general rule that the opinion of witnesses possessing
peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja.
He deposed to have testified in about ten thousand cases relating to disputed
documents. Though the employee highlighted certain adverse remarks, it cannot
be lost sight of that they were about four decades back. But we need not go
into that aspect in detail as no infirmity in the report acted upon by the
authority in the present case was noticed or could be pointed out.
to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to
take a view on the opinion of others, whereas under Section 73 of the said Act,
the Court by its own comparison of writings can form its opinion.
of the identity of handwriting is dealt with in three Sections of the Evidence
Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the
evidence is an opinion. In the former case it is by a scientific comparison and
in the latter on the basis of familiarity resulting from frequent observations
and experiences. In both the cases, the Court is required to satisfy itself by
such means as are open to conclude that the opinion may be acted upon.
of an opinion of the Handwriting Expert, the Court can compare the admitted
writing with disputed writing and come to its own independent conclusion. Such
exercise of comparison is permissible under Section 73 of the Evidence Act.
Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of
Handwriting Expert need not be invariably corroborated. It is for the Court to
decide whether to accept such an uncorroborated evidence or not.
clear that even when experts' evidence is not there, Court has power to compare
the writings and decide the matter. [See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC 704] In the instant
case, the Enquiry Officer and the Disciplinary Authority took pains to
carefully consider the Handwriting expert's report and also looked at the
documents to arrive at their own conclusions.
emphasis was laid on the Forensic Science Laboratory's report to say that the
Handwriting Expert's report is not worthy of acceptance. We have looked at the
report of the Forensic Science Laboratory. It only says that no definite
opinion can be formed. That itself is an indication that a clean chit was not
given as claimed by the employee.
fairly well settled that the approach and objective in criminal proceedings and
the disciplinary proceedings are altogether distinct and different. In the
disciplinary proceedings the preliminary question is whether the employee is
guilty of such conduct as would merit action against him; whereas in criminal proceedings
the question is whether the offences registered against him are established and
if established what sentence should be imposed upon him.
standard of proof, the mode of enquiry and the rules governing the enquiry and
trial are conceptually different.
State of Rajasthan v. B.K. Meena and Ors. (1996) 6 SCC 417)]. In case of
disciplinary enquiry the technical rules of evidence have no application. The
doctrine of "proof beyond doubt" has no application. Preponderance of
probabilities and some material on record are necessary to arrive at the
conclusion whether or not the delinquent has committed misconduct.
exercising jurisdiction under Article 226 of the Constitution the High Court
does not act as an appellate authority. Its jurisdiction is circumscribed by
limits of judicial review to correct errors of law or procedural errors leading
to manifest injustice or violation of principles of natural justice. Judicial
review is not akin to adjudication of the case on merits as an Appellate Authority
In B.C. Chaturvedi v. Union of India and Ors. (1995 (6) SCC 749) the scope of
judicial review was indicated by stating that review by the Court is of
decision making process and where the findings of the disciplinary authority
are based on some evidence, the Court or the Tribunal cannot re-appreciate the
evidence and substitute its own finding.
observed in R.S.Saini v. State of Punjab and Ors. (1999 (8) SCC 90) in
paragraphs 16 and 17 the scope of interference is rather limited and has to be
exercised within the circumscribed limits. It was noted as follows:
Before adverting to the first contention of the appellant regarding want of
material to establish the charge, and of non- application of mind, we will have
to bear in mind the rule that the court while exercising writ jurisdiction will
not reverse a finding of the inquiring authority on the ground that the
evidence adduced before it is insufficient. If there is some evidence to
reasonably support the conclusion of the inquiring authority, it is not the
function of the court to review the evidence and to arrive at its own
independent finding. The inquiring authority is the sole judge of the fact so
long as there is some legal evidence to substantiate the finding and the
adequacy or reliability of the evidence is not a matter which can be permitted
to be canvassed before the court in writ proceedings.
narration of the charges and the reasons of the inquiring authority for
accepting the charges, as seen from the records, shows that the inquiring has
based its conclusions on materials available on record after considering the defence
put forth by the appellant and these decisions, in our opinion, have been taken
in a reasonable manner and objectively. The conclusion arrived at by the inquiring
authority cannot be termed as either being perverse or not based on any
material nor is it a case where there has been any non- application of mind on
the part of the inquiring authority. Likewise the High Court has looked into
the material based on which the enquiry officer has come to the conclusion,
within the limited scope available to it under Article 226 of the Constitution
and we do not find any fault with the findings of the High Court in this
regard." As noted above, the employee accepted that there was some lapse
on his part but he pleaded lack of criminal intent. A bank employee deals with
public money. The nature of his work demands vigilance with the inbuilt
requirement to act carefully. Any carelessness invites action.
been rightly submitted by learned counsel for the respondents-Bank, even to the
naked eye the mistakes in spelling of "signature" are visible and
should not have escaped the eyes of a bank employee who is supposed to be
trained and equipped to notice such glaring mistakes. The Enquiry Officer has
noticed the similarities highlighted by the Handwriting expert in the disputed
document and the admitted signatures of the employee to show how the similarity
is visible and even any layman can notice the similarity. These were factual
the limited scope of judicial review, the Division Bench was right in upholding
the order of dismissal by setting aside the learned Single Judge's order by
which interference was made with it. We find no reason to differ from the
conclusions of the Division Bench. The appeal is without merit and is dismissed