AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20270 of 2012 CNR No. ODHC010216712012 Purna Chandra Kanungo …. Petitioner Mr. Sidheswar Mallik, Advocate -Versus- Bank of India and others …. Opposite Parties Mr. Laxmikanta Tripathy, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING:14.05.2026 DATE OF JUDGMENT:01.09.2026 1. Instant writ petition is filed by the petitioner assailing the impugned orders as at Annexure-16,17 and 23 and to quash the same and to treat his service as regular till superannuation with retrospective effect and to direct the opposite parties to release consequential service and financial benefits in his favour upon such regularization of service on the grounds stated therein. 2. In fact, the petitioner challenges the order of his dismissal from service pursuant to a departmental proceeding initiated on the charge of misconduct and dereliction in duty in violation of the norms of the Bank and its confirmation with dismissal of the appeal by the Authority concerned as illegal and also unreasonable having been achieved in complete deviation of the procedure laid down for conducting domestic enquiry and outcome based on extraneous consideration and also in not considering the review in proper perspective filed by him for orders by opposite party No.1. WP(C)/20270/2012 ODHC010216712012 2026:OHC:107 3. The brief facts of the case are stated herein below. The petitioner was appointed in the Bank as a Probationary Officer with the appointment letter issued as per Annexure-1 series and joined at the Zonal Office of Bank of India at Patna in the State of Bihar on 30th December, 1981 and after completion of the probation, he was confirmed as an Officer in the Junior Management Grade Scale-I and thereafter, was promoted as the Middle Manager in Grade Scale-II w.e.f. 1st April, 1991 and then to the post of the Middle Manager Grade Scale-III on 28th December, 1996 and finally, as the Senior Management Grade Scale-IV on1st April, 2002. 3.1. Since the date of birth of the petitioner in the official record is shown as 16th October, 1952 and he was scheduled to retire from service on 31st October, 2012, but he opted for pension scheme upon his superannuation. It is further pleaded that the petitioner had been assigned managership of different branches of the Bank for continuous period of 19 years between August, 1988 till his transfer from Secunderabad, Hyderabad trading over four States and five Administrative Zones out of active service period of twenty five years and three months and for his sincere duty and dedication and unblemished track record, he was awarded of a medallion (Annexure-2 series) in recognition of the contribution by him to the growth of the Bank and furthermore, as the Branch Manager of the Bank at Bhawanipatna, Kalahandi, was awarded a Certificate of Appreciation (Annexure-3) by the State Government on 26th January, 1997 for outstanding performance in the field of Integrated Rural Development Programme (IRDP). According to the petitioner, while he was at Secunderabad Branch, Hyderabad, he bagged an award on all India basis by the Head Office for mobilization of Institutional deposits during the year 2005-06 under the Bank Employee Motivation Scheme and while claiming so, Annexures-4 & 5 are referred to. 3.2. While the matter stood thus, the petitioner was transferred from Secunderabad Branch to the Zonal Office, Hyderabad on 25th July, 2007 and in the meantime, he was placed under suspension (vide Annexure-6) with the allegation of misconduct and misappropriation of funds by a middleman amounting to Rs. 10.15 crore in deposit accounts of the State Government organizations, namely, Andhra Pradesh State Disaster Mitigation Society (APSDMS), Andhra Pradesh Vulnerable Reduction Fund Trust and Public University, Acharya NG Ranga Agri University (ANGRAU) Agricultural University. No explanation was called for from the petitioner for the serious lapses as made to reveal from Annexure-6 and even the Authority undertaking the enquiry denied production of the official correspondences from the Zonal Bank Manager, Bank of India, Hyderabad Zone to the Administrative Head of the Bank to whom the petitioner had initially reported the facts upon fraud being unearthed. It is alleged that the Enquiring Authority disallowed the presence of the Zonal Manager as a witness in the enquiry in the departmental hearing. Finally, the Article of Charges dated 1st March, 2008 as per Annexure-8 was served on the petitioner on 1st April, 2008 through the Zonal Office, Hyderabad, whereafter, the Disciplinary Authority by order dated 29th April, 2008 at Annexure-10 directed initiation of the departmental enquiry against him. A copy of the written statement of allegations is at Annexure-9. According to the petitioner, the Enquiring Authority hurriedly commenced and concluded the proceeding on 31st May, 2008 at a breakneck speed and on conclusion of the enquiry, the report dated 24th June, 2008 was forwarded to him by letter dated 14th June, 2008 i.e. Annexure-11 received through the Zonal Office, Hyderabad. It is stated that after conclusion of the departmental investigation in May, 2007, a complaint was lodged with the CBI by the Zonal Manager, Bank of India, Hyderabad Zone mentioning therein that the petitioner enlisted support of a middleman for mobilizing deposits from the named organizations but nowhere there is allegation of conspiracy by him to commit the fraud and misappropriate the Government money. 3.3. A copy of the F.I.R. dated 31st July, 2007 and the CBI report dated 2nd August, 2007 are at Annexures-13 & 14 respectively. It is further stated that the petitioner was named as an accused by the CBI when he was in service, but was under suspension and was arrested on 23rd October, 2008 and thereafter, released on bail on 15th November, 2008 and on such release, he was served with the order of dismissal dated 19th November, 2008 on 27th November, 2008 and was not given any opportunity to submit response to the penalty proposed before such order of dismissal in terms of Regulation 11 of the Bank of India Officer Employees’ (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as ‘the Regulations’) by the Disciplinary Authority. It is alleged that the petitioner was not even allowed a personal hearing before passing of the major penalty order. Against the order of dismissal, the petitioner preferred an appeal dated 6th January, 2009 to the Executive Director, Bank of India. In the meanwhile, the CBI filed the chargesheet dated 21st January, 2009 against the petitioner citing that no prior approval for prosecution was necessary as he had already been dismissed from the service, whereas, the appeal filed by him was pending before the Authority concerned but the Appellate Authority confirmed the order of dismissal on 7th May, 2009 and conveyed the decision vide Annexure-17. The petitioner then preferred a mercy petition dated 12th September, 2009 for review by opposite party No.1, but no decision was taken thereon despite repeated requests submitted with reminders vide Annexures-18 to 21. 3.4. On the grounds pleaded on record, the petitioner claims that the departmental enquiry was not conducted in the manner contemplated under the Regulations and that apart, the order of dismissal is shockingly disproportionate, inasmuch as, the doctrine of proportionality has been given a go by when others similarly proceeded with have been let off with lesser punishments. The plea of the petitioner is that the impugned decision on penalty and confirmation of the same by the Appellate Authority is per se illegal, highly disproportionate and an act of flagrant misuse of power and in the meanwhile, the review was disposed of by opposite party No.1 outrightly rejected on 29th September, 2012 vide Annexure-23 without assigning any reasons. Being aggrieved by the decision and dismissal of order confirmed in appeal and review by the Authorities concerned, the petitioner invoked the writ jurisdiction of this Court and with the facts pleaded on record, questioned the impugned orders at Annexures-16,17 & 23 demanding a direction to the opposite parties to treat his service as regular and to grant him the service and financial benefits. 4. The Bank filed the counter affidavit through opposite party No.1 and justified the action against the petitioner and the order of his dismissal from his service rightly confirmed in appeal and also in review by the Authorities concerned. It is pleaded therein that in view of the serious irregularities committed by the petitioner during his tenure as the Chief Manager, Secunderabad Branch, Bank of India, Hyderabad, he was placed under suspension and subsequently, the proceeding was initiated with the charges levelled for having violated Regulation 3(1) of the Bank of India Officer Employees’ (Conduct) Regulations punishable thereunder and at the end, found it to have been proved and established. It is also pleaded that the petitioner participated in the enquiry and the Enquiring Authority submitted the report with findings dated 24th June, 2008 with a conclusion that the balance after closing the account was sent by issuing a pay slip in favour of the Comptroller, Sri Venkateswara University, Tirupati (SVU) and Acharya NG Ranga Agri University (ANGRAU). Accordingly, to opposite party No.1, the Disciplinary Authority found no merit in the defence of the petitioner and finally concurred the findings of the Enquiring Authority and looking at the gravity of the misconduct, imposed a penalty of dismissal from Bank service in terms of regulation 4(j) of Regulations and the appeal preferred by him was also dismissed and later confirmed by the Reviewing Authority by order dated 29th September, 2012 rejecting the contentions of the petitioner. It is pleaded finally that the acts of misconduct are related to his gross negligence and dereliction of duties violating the Bank norms leading to a fraud involving an amount of Rs.10 crores by a middleman, who was engaged for mobilizing the Government deposits thereby causing financial loss to the Bank. With the above stand, it is pleaded that the writ petition deserves to be dismissed. 5. Perused the affidavits on record. 6. Heard Mr. Mallik, learned counsel for the petitioner and Mr. Tripathy, learned counsel for the Bank. 7. Gone through the written notes filed by the parties. 8. Mr. Mallik, learned counsel for the petitioner submits that there is no lapse on the part of the petitioner and any conspiracy proved and established and therefore, the order of dismissal is not justified. Referring to the facts of the case, Mr. Mallik, learned counsel would submit that the charges against the petitioner are not established and hence, the order of dismissal is bad in law and thus, liable to be interfered with and set aside with a direction to opposite parties to regularize the services rendered by him till superannuation and to disburse the consequential financial benefits in his favour. It is also contended that the petitioner was not provided a reasonable opportunity of hearing in the departmental proceeding and it was hastily concluded followed by the order of dismissal. Mr. Mallik, learned counsel submits that the Disciplinary Authority could not have accepted the findings of the enquiry and also the Appellate Authority while dealing with the appeal preferred by the petitioner. The further contention is that the Reviewing Authority failed to properly exercise the jurisdiction instead dismissed the plea and thereafter, intimated the petitioner about the outcome with inordinate delay. While advancing the above argument, Mr. Mallik, learned counsel cited case laws and submitted that the doctrine of proportionality has not been observed in case of the petitioner, who is discriminated against especially while considering the quantum of punishment in comparison to others awarded compulsory retirement and when one of them, namely, Ex-Chief Manager, Bank of India, SSI, Branch, Visakhapatnam had allegedly purged loss to the Bank to the tune of Rs. 110 crores. It is finally contended that not only the departmental proceeding was concluded in a haste without reasonable opportunity of hearing being provided to the petitioner, but also the Disciplinary Authority fell into gross error in imposing a punishment of dismissal from service without adhering to the doctrine of proportionality and hence, the impugned dismissal order confirmed in appeal and review vide Annexures-16, 17 & 23 deserve to be set at naught directing his service to be treated as regular till 31st October, 2012 that being the date of superannuation. 9. On the contrary, Mr. Tripathy, learned counsel for the Bank submits that the charges have been proved against the petitioner and the Authorities of the Bank imposed the punishment of dismissal from service, which is in accordance with law and hence, not to be tampered with. It is contended that the disciplinary enquiry was conducted as per the Regulations and there has been participation of the petitioner with opportunity provided to him to defend and therefore, the plea that the proceeding was hurriedly concluded is liable to be rejected. The further contention is that the charges have been proved and it is regarding misappropriation of proceeds of the cheques therefore, it was followed by departmental action and ultimately was removed from service by a dismissal order. Mr. Tripathy, learned counsel would submit that the petitioner was charged with breach of Regulation 3(1) of the Regulations and the enquiry and disciplinary proceedings were conducted complying the rules and adhering to the principles of natural justice and therefore, there is no illegality in the order of dismissal. In response to the plea regarding non-supply of documents and other employees receiving lesser penalties besides non- examination of some of the witnesses, it is submitted by Mr. Tripathy, learned counsel that it cannot be agitated at present since never raised earlier and hence, barred by constructive res judicata in view of Explanation-IV to Section 11 of the Code of Civil Procedure, 1908. It is contended that the petitioner cannot take assistance of such pleas before this Court while not raising anytime during the disciplinary proceeding and subsequently in appeal and review. The contention of Mr. Tripathy, learned counsel is that the scope of judicial review is limited and is not to be exercised venturing into reappreciation of evidence in view of the settled position of law. It is lastly contended that the charges levelled against the petitioner having been proved and established with a departmental proceeding initiated and when it related to serious negligence and dereliction in duty causing huge loss to the Bank, the order of dismissal vide Annexure-16 confirmed in Annexures-17 & 23 in appeal and review by the Authorities concerned is perfectly justified and according to law and thus, calls for no interference. 10. From the record, this Court finds that the maintainability of the writ petition was questioned by the opposite party on the premise of territorial jurisdiction and it was disposed of by order dated 19th January, 2016 challenged in W.A. No.152 of 2016, wherein, by order dated 5th February, 2019, it was remitted back for a reconsideration on such preliminary objection vis-a-vis jurisdiction but no argument is advanced from either side, rather, it was entirely confined to the legality of the order of dismissal dated 19th November, 2008 and decisions of the Authorities in appeal and review. Mr. Tripathy, learned counsel for the Bank has responded to the plea of the petitioner as to the order of the dismissal directed against him by the Disciplinary Authority and also with reference to the order dated 7th May, 2009 in appeal and the order by the Reviewing Authority vide Annexure-23. Since such a question on jurisdiction is no more raised, rather, held this Court to be possessed of with a decision after remand, nothing survives for determination, rather, proceeds on the premise that it has territorial jurisdiction to deal with the matter. 11. Before considering the grounds pleaded by the petitioner vis-à-vis departmental proceedings and whether the order of dismissal by the Disciplinary Authority is justified, this Court is inclined to remind itself of the limited jurisdiction to exercise in a case of judicial review. In fact, Mr. Tripathy, learned counsel for the Bank submits that this Court cannot sit in appeal over the decision of the Authorities and is only required to record whether the findings of fact in the departmental enquiry is perverse and based on evidence and that the decision is justified. The contention is that only when there is perversity in the decision-making process in a departmental proceeding, this Court is to intervene and not otherwise. At this Juncture, the decisions cited by Mr. Tripathy, learned counsel deserve an attention. In State Bank of Bikaner and Jaipur Vrs. Nemi Chand Nalwaya (2011) 4 SCC 584, the Apex Court observed in the following words: “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. 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 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 conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.” 12. In Union of India and Others Vrs. Ex-Constable Ram Karan (2022) 1 SCC 373 and similarly in Union of India and others Vrs. P. Gunasekaran (2015)2 SCC 610, the Apex Court laid down the guidelines as to in what manner the powers under Articles 226 & 227 of the Constitution of India are to be exercised and the relevant extract therein is reproduced hereinbelow: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate Authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the Disciplinary Authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. Page 14 of 39 “13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 13. Having discussed the case laws cited hereinabove, this Court is of the view that whether the enquiry has been held according to the procedure prescribed and if at all principles of natural justice have been followed are to be examined while exercising the power of judicial review but not to reappreciate the evidence interfering with the decision reached at in the enquiry being alive to the proposition of law that an error of fact howsoever grave cannot be a ground to correct it and on proportionality of punishment, any interference should only be if the same shocks its conscience. 14. With regard to the quantum of punishment, law is well settled that the Disciplinary Authority should be directed to reconsider the same even when the Court finds the same to be disproportionate. In fact, Mr. Tripathy, learned counsel referring to the decision of the Apex Court in Ex-Constable Ram Karan (supra) submits that the scope of judicial review even on the quantum of punishment is limited and can only be interfered with if it appears to be shockingly disproportionate to the nature of the misconduct. The other decisions cited by Mr. Tripathy, learned counsel on limited jurisdiction of the writ court vis-à-vis quantum of punishment are, namely, Union of India & others Vrs. Subrata Nath (2024) 20 SCC 402; Union of India and others Vrs. Managobinda Samantaray 2022 SCC OnLine SC 284; Lucknow Kshetriya Gramin Bank and another Vrs. Rajendra Singh (2013) 12 SCC 37; Chairman & Managing Director, Vishakhapatnam Steel Plant and others Vrs. Goparaju Sri Prabhakara Hari Babu (2008) 5 SCC 569; and Union of India and others Vrs. Dwarka Prasad Tiwari (2006) 10 SCC 388. On a reading of the case laws referred to hereinabove, this Court is in agreement with the contention of Mr. Tripathy, learned counsel that the scope of judicial review is narrow and limited exercisable only if there is perversity in the decision of the Disciplinary Authority either in conducting the enquiry or with regard to the quantum of punishment. 15. Briefly stated, the challenge to the order of penalty directed by the Disciplinary Authority is on the ground that the same is highly improbable and not legally tenable and that the Authorities concerned have acted in a manner prejudicial to the interest of the petitioner thereby causing irreparable loss to his service career and also right to life guaranteed under Article 21 Constitution of India. It is alleged that the enquiry was conducted at a breakneck speed and concluded within five days’ time in a case of serious allegations and that apart, the enquiry has not been conducted in a manner contemplated under law. The allegation is that the photocopies of the relevant documents without authentication were received as evidence and marked as exhibits despite objection of the petitioner. Inasmuch as, in an enquiry the original documents ought to have been presented and admitted from the side of the Bank and therefore, the Disciplinary Authority acted upon extraneous consideration. It is alleged that the petitioner was made the scapegoat when he is not directly involved in the alleged fraud actually perpetuated by outsiders. It is also claimed that the petitioner is also not entirely responsible for any such negligence as he was not handling deposits of the Bank but was the Chief Manager at the relevant point of time. The further claim is that usually in a departmental enquiry the branch head is held responsible but in certain situations the second line functionary and other officials are said to be involved and there are no clear guidelines of the Bank as to who should ultimately be held accountable for any such fraud when transactions have been dealt with and cleared with the involvement of many officials. Nevertheless, the enquiry was held quickly completed in five days’ time without adequate opportunity provided to the petitioner and considering his objections during its continuance and no show-cause was demanded from him before imposing penalty of dismissal from service and all such actions of the Disciplinary Authority and also on account of confirmation of the order of removal by the Appellate Authority and Review Authority are in violation of Articles 14, 19 & 21 of the Constitution. 16. The other limb of argument is that dismissal order is not a just punishment inflicted upon the petitioner considering his track record while in service and for absence of his direct involvement in the alleged fraud, which, at best be a case of negligence or lack of due diligence and for having not received any personal gain on account of such fraud and that he himself after having realized that the fraud has been perpetuated by the middleman, who was involved in procuring Government deposits for the Bank in the past as well and even had given intimation about the same to the higher-ups, it was not justified on the part of the Disciplinary Authority to impose a punishment of dismissal from service. The claim is that in identical cases of fraud, the employees of the Bank were compulsorily retired instead of removal from service but the petitioner has been treated indifferently, inasmuch as, dismissal from service is a harsh punishment without entitlement to pension and other retiral benefits foreclosing opportunity in future employment and therefore, it is totally unjust and grossly proportionate to the alleged misconduct. Furthermore, according to Mr. Mallik, learned counsel for the petitioner, the departmental proceeding could not have been finalized pending criminal proceeding on self- same charges. The investigation was taken up by the CBI and in connection therewith, the petitioner was arrested and was in judicial custody for about a month and shortly thereafter, was handed over the order of dismissal from service. It is contended that the Disciplinary Authority ought to have deferred the enquiry as the criminal investigation was in progress. But Mr. Tripathy, learned counsel for the Bank would contend that there is no bar in initiating the departmental action pending criminal investigation. Law is well settled that there is no absolute bar to defer the departmental enquiry till the criminal trial is concluded. According to this Court, the actions with a disciplinary proceeding and criminal trial are distinct and separate. As a matter of fact, the standard of proof in a disciplinary action is preponderance of probabilities unlike establishment of guilt beyond all reasonable doubt in criminal trials. A departmental enquiry is governed by a standard of proof based on whether the misconduct is probable, rather, than certain. In criminal cases, where the prosecution shall have to establish guilt beyond reasonable doubt, a Disciplinary Authority can impose a penalty based on a finding of preponderance of probability. The strict standards of criminal law do not apply with the same rigour in department proceedings. For the fraud alleged by the Bank and in contemplation of action, the petitioner was placed under suspension and at the same time, the criminal investigation was commenced, hence, it cannot be said that the departmental enquiry was to be deferred indefinitely when both are independent proceedings and no substantial prejudice would have been caused thereby. Considering the plea of the petitioner that the departmental proceeding should not have been finalized pending criminal investigation by the CBI is liable to be rejected. Nothing is demonstrated to allege that any such continuation of the departmental proceeding was more likely to prejudice the defence of the petitioner. The foundation upon which an action is initiated departmentally and the standard of proof necessary to establish misconduct, as earlier stated, is quite distinct from a criminal trial, where, for such misconduct being an offence under law, the delinquent is penalized only if the guilt is established beyond reasonable doubt. This Court is, therefore, of the view that the petitioner cannot challenge the action of the Bank to departmentally proceed against him on any such ground for pendency of criminal investigation on the same charge of fraud. 17. Further contention of Mr. Mallik, learned counsel for the petitioner is that the copies of the documents were marked as exhibits without its comparison with the originals. On the contrary, Mr. Tripathy, learned counsel submits that the relevant documents related to the alleged transactions have been marked as exhibits and the said objection of the petitioner cannot withstand. On perusal of the enquiry report, it is made to understand that at no point of time, any such objection was received from the side of the petitioner. No such ground was even taken before the Appellate Authority challenging receipt of evidence without referring to the originals. If any such documents were admitted as evidence from the side of the Bank and it has been alleged that there was no authentication or any attestation to the effect that they were the copies of the originals, it was for the petitioner to raise objection then and there but nothing is revealed from the record in that regard. The enquiry report does not reveal any such oral objection from the side of the petitioner at the time of receiving the documents as evidence and marked as exhibits for the reason that they have not been compared with the originals. Even before the Appellate Authority, no any objection was raised. In absence of any objection of the petitioner at the time when the evidence was received from the side of the Management of the Bank, it would be difficult to accept the fact that there was any such prejudice caused to him as a result. By not having raised objection at the time when the evidence was received during enquiry, this Court is of the view that it cannot be challenged later alleging that the originals were not produced or for that matter, the copies of the documents marked as exhibits were not compared with the originals. Having said that, this Court is of the considered view that such a ground pleaded by the petitioner cannot be accepted while challenging the enquiry and findings thereof. 18. Another ground of challenge is that some of the witnesses, who are material, have not been examined. The petitioner named such officials, who were required to be examined in order to elicit the truth but allegedly withheld by the Bank and it has caused prejudice to him. In the considered view of the Court, it was for the Bank to take a call as to who are the witnesses to be examined during the enquiry and cannot act upon the request of the petitioner. The witnesses named by the petitioner in the defence, as according to him, should have been examined during the enquiry. If the Bank did not examine any such witnesses during enquiry, it was for the petitioner to lead evidence in defence by examining them with proper applications moved. In the case at hand, the petitioner has not led evidence in defence with the examination of any such witnesses named by him. Even in a criminal trial, such a right may be exercised by the defence when it is alleged that material witnesses have been withheld from examination by the prosecution. In other words, the petitioner did have a right to examine any such official witness during enquiry but has not avail the same. Under the above circumstances, for non- examination of named witnesses by the Management, according to the Court, the petitioner cannot allege prejudice. 19. It has been alleged that the Disciplinary Authority has not afforded the petitioner an opportunity of hearing before proceeding to impose a major penalty like dismissal from service. After receiving the enquiry report, the petitioner was served with a copy of the same for a reply and response as made to reveal from the record. In fact, a show cause reply was called for from the petitioner on the Articles of Charge and thereafter, on closure of enquiry, upon receiving the report with the findings thereon. Mr. Mallik, learned counsel for the petitioner would submit that imposition of a penalty is preceded by an opportunity to the delinquent to respond, especially when a major penalty is contemplated. The plea of the petitioner is not borne out of record, rather, opportunity was afforded to the petitioner to respond to the imposition of a major penalty. The details of the procedure from the inception till such time penalty is imposed by Disciplinary Authority are prescribed under the Regulations. According to the Regulations, the Enquiring Authority shall forward the records of enquiry along with the report in accordance with Regulation 6(21)(ii) of the Regulations and it is followed by an action on such report by the Disciplinary Authority as per Regulations 7 thereof. On a further reading of Regulations 7(3) of the Regulations, it is made to understand that the Disciplinary Authority having regard to the findings on the Articles of Charge if of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty. This Court finds that there is no such provision of a hearing of the petitioner by the Disciplinary Authority before imposition of one of the penalties specified in Regulation 4 of the Regulations. The petitioner was allowed to respond to the Articles of Charge and thereafter, on the enquiry report, after being received by the Disciplinary Authority, it was followed by imposition of penalty in terms of Regulation 7(3) of the Regulations and therefore, it shall have to be held that due procedure has been followed. 20. According to Mr. Mallik, learned counsel the enquiry was conducted in five days’ time and it has severely prejudiced the petitioner. It is contended that the petitioner was placed under suspension on 26th April, 2007 as per Annexure-6 and thereafter, on a complaint lodged by the Zonal Manager, Bank of India, Hyderabad Zone dated 3rd May, 2007 with CBI Banking Service Fraud Cell, Bangalore, investigation was commenced into the allegations that the petitioner enlisted the support of a middleman for mobilizing Government deposits of State of Andhra Pradesh. It is claimed that the CBI made search of Bank locker, scrutinized the accounts of the petitioner and his family members but no incriminating materials were found and it was held on 2nd August, 2007, whereafter, an explanation was called for from him for the alleged fraud during his incumbency as the Chief Manager, Secunderabad Branch between 17th May, 2004 to 25th April, 2007 to which a detail reply was submitted on 27th August, 2007. It is further informed that the disciplinary proceeding was initiated on 1st March, 2008 with the Memo of Charges communicated to the petitioner on 1st April, 2008 vide Annexure-8, to which, written statement of defence was received from him on 10th April, 2008 as per Annexure-9 and later thereto, the Enquiring Officer was appointed on 29th April, 2008 vide Annexure-10. The contention is that the preliminary hearing on enquiry was conducted on 15th May, 2008 and thereafter, the hearing was commenced on 27th May, 2008 and concluded on 31st May, 2008. A reference is made to Regulation 6(9) and also Sub-Regulation 10 of the Regulations to claim that prescribed procedure has not been followed by the Disciplinary Authority as it mandates that if the officer employee does not plead guilty, the Enquiring Authority shall adjourn the case to a later date not exceeding thirty days or within such extended time as may be granted and while adjourning the enquiry in terms thereof, shall also record by an order that such an officer may for the purpose of preparing defence, inspection of the documents submit a list of documents and witnesses and to give a notice within ten days of the order or within such further time not exceeding ten days for discovery or production of the documents from among the list furnished. It is alleged that within no time, the enquiry was concluded and the timeline prescribed as per the regulations has not been adhered to by the Disciplinary Authority. The record does not reveal anywhere that the petitioner ever claimed prejudice on account of a speedy enquiry conducted. It is not that the petitioner was declined for inspection of the documents to the lists handed over to him or that discovery or production of documents out of the lists furnished was denied. Merely for the reason that the enquiry was concluded within five days cannot be a ground to challenge alleging prejudice to the petitioner. No specific instance of any such prejudice is shown by the petitioner and again borne out of the record. Nothing is revealed from record to substantiate the plea that the petitioner received unfair treatment during the enquiry for the timeline prescribed under the Regulations having not been adhered to so as to render the entire exercise including the findings of the enquiry susceptible to judicial review. When no such ground was raised the petitioner before the Appellate Authority alleging prejudice for non-compliance of the provisions of the Regulations, this Court is not inclined to entertain the same questioning the procedure followed during the enquiry. Page 25 of 39 21. It is alleged that no witnesses proved the documents during the enquiry and its mere production is not sufficient. It is contended by Mr. Mallik, learned counsel that the documents marked as exhibits ought to have been proved with the examination of the official witnesses during enquiry. It is alleged that the Management simply tendered the documents and did not prove the contents thereof examining witnesses in course of enquiry. On a perusal of the enquiry report and the record, it is made to reveal that the Management examined witnesses and at the same time, proved the documents as exhibits. With the examination of the witnesses by the Bank and upon receiving the documents related to the transactions in order to prove the fraud, the Enquiring Officer reached at a subjective satisfaction about the misconduct on part of the petitioner. In other words, on an analysis of the evidence received from the side of the Management, oral and documentary, the enquiry was concluded with findings on each of the charges levelled against the petitioner. Such an exercise is unlike a criminal trial and therefore, to insist upon that the contents of each of the documents are to be proved by the authors of the same cannot be acceded to and furthermore when, the petitioner had not offered any objection either. That apart, if there was any such need for inspection of the documents, on account of default of the Enquiring Authority, the petitioner could have demanded the same including discovery of such documents out of the lists submitted by him but at no point of time, any such demand was received from him and therefore, in absence of prejudice caused on such ground duly demonstrated, it has to be held that the procedure followed during enquiry cannot be questioned alleging non- compliance of the Regulations. 22. Mr. Tripathy, learned counsel for the Bank would submit that there has been no any such illegality committed during enquiry and at the end of such enquiry, the misconduct of the petitioner was established as he facilitated perpetuation of fraud to the tune of Rs.10,05,03,788/- (rupees ten crore five lacs three thousand seven hundred eighty-eight) with the engagement of a middleman for mobilization of Government deposits. The details of the fraud are brought to the notice of the Court by Mr. Tripathy, learned counsel to submit that by 26th March, 2007, the petitioner allowed the entire funds to be siphoned off out of which Rs.2 crores could only be recovered and therefore, he was charged for breach of Regulation 3(1) of the Regulations punishable thereunder and as a result, the enquiry and disciplinary proceeding was followed adhering to the principles of natural justice. It is contended that the Disciplinary Authority did not find any merits in the defence of the petitioner and concurred with the decision of the Enquiring Authority that the charges levelled against him have been proved and looking at the gravity of the misconduct, penalty of dismissal from service was imposed, which ordinarily a disqualification for future employment in view of Regulation 4(i) of the Regulations. As to the non-supply of documents, some of the witnesses not examined during enquiry etc., on such claim of the petitioner, Mr. Tripathy, learned counsel submits that he is debarred from challenging the enquiry on any such ground having not raised before in the written statement of defence, or appeal or at the time of review and as such by operation of principles of constructive res judicata is estopped to do so. The submission is that the petitioner cannot take aid of any such plea before this Court when he had never raised it for a decision by the Disciplinary Authority or for that matter, before the other Authorities in appeal and review. As earlier concluded, this Court is in agreement with Mr. Tripathy, learned counsel that the petitioner failed to raise all such grounds at the right point of time when the enquiry was in continuation. From the decision of the Appellate Authority, it is revealed that no any ground regarding non-supply of documents etc. was raised by the petitioner for consideration. As it is also concluded, the Management could not have been forced to examine a particular witness and if not so examined, the petitioner could have made an attempt to examine them in defence. At least, the relevant documents proving defence or any such evidence claiming innocence should have been adduced from the side of the petitioner, if the named officials of the Bank were not examined. In an enquiry, all such mitigating circumstances are to be placed on record in defence by a delinquent and for that, the Management cannot be compelled to examine witnesses short-listed by him. At the cost of repetition, it is concluded that the petitioner having not raised any such grounds before the Appellate Authority or for having not taken necessary steps during enquiry with regard to receiving evidence for the purpose of inspection, discovery etc., subsequent to the closure of enquiry, he cannot be permitted to question the procedure followed by the Management especially when no such grounds had been advanced in appeal and review before the Authorities concerned. 23. Finally, Mr. Mallik, learned counsel submits that the order of dismissal is hit by doctrine of proportionality and hence, violative of Article 14 of the Constitution of India. It is contended that the penalty of dismissal from service of the petitioner is not proportionate to the alleged misconduct. It is submitted that in identical cases, some Bank officials have been compulsorily retired, whereas, for no apparent reasons, the petitioner has been removed from service, hence, the punishment is legally not tenable. The contention is that parity should have been extended to the petitioner with a lesser penalty at least a compulsory retirement instead of dismissal from service. Mr. Tripathy, learned counsel for the Bank submits that the petitioner cannot claim parity as it depends on each particular case. It is submitted that in exercise of the writ jurisdiction, a Court is not to disturb the penalty imposed by the Disciplinary Authority when confirmed in appeal and also in review. The contention is that a writ court does not sit in appeal over the decision of a Disciplinary Authority and scope of judicial review is narrow and restricted. Without doubt, the rule of parity and right to equality is guaranteed under Article 14 of the Constitution and it has been consistently held by the Apex Court that the Disciplinary Authority must maintain uniformity while imposing punishment. But referring to unrelated cases of fraud with departmental actions, penalty of compulsory retirement cannot be challenged pleading parity. It is well settled law that rule of parity is applied in respect of co- delinquents. Even then also, such rule is not applied mechanically as the Courts are to evaluate whether the cases are genuinely identical vis-vis role played by the delinquents with reference to the official responsibilities assigned. 24. At this juncture, it is profitable to quote the decision of the Apex Court in Lucknow Kshetriya Gramin Bank& Another Vrs. Rajendra Singh (2013) 12 SCC 372 and the same is extracted herein below: “19. The principles discussed above can be summed up and summarized as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of chargesheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” 25. Mr. Tripathy, learned counsel for the Bank submits that in service law and disciplinary proceedings, the principle of equality of the Article 14 of the Constitution does not strictly apply to the quantum of punishment and refers to the decision of the Apex Court in Chairman & Managing Director, Vishakhapatnam Steel Plant and Others Vrs. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569 and the observations therein are reproduced below: “21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved (See Sangfroid Remedies Ltd. v. Union of India [(1999) 1 SCC 259]” 26. Further referring to Union of India Vrs. Dwarka Prasad Tiwari; (2006) 10 SCC 388, Mr. Tripathy, learned counsel submits that punishment imposed by the Disciplinary Authority unless shocks the conscience of the Court, there is no scope for intervention and in the case at hand, the petitioner is guilty of misconduct causing substantial loss to the Bank to the tune of Rs.11 crore, hence, the penalty of dismissal from service is justified. Page 32 of 39 27. This Court is of the view that rule of parity is applicable when co-delinquents are proceeded departmentally and different punishments are imposed. In such a situation any such delinquent received major penalty in contrast to a minor one for another and when both are similarly situated, rule of parity is a ground to question the punishment but to the misconduct arises from an entirely different incident, time or set of facts, it constitutes a separate cause of action and in that case, parity cannot be applied. A disciplinary proceeding evaluates specific facts of each case. Even if charges seen similar on surface, the underlying gravity, the employees past service record and the post held by him and the actual loss caused can differ significantly. It is settled law that the Courts generally do not interfere with quantum of punishment chosen by the Disciplinary Authority unless it is perverse or shocks the conscience of the Court. The fact that a different Authority or the same Authority in a different and unrelated case chose a softer approach does not inherently make a harsher punishment illegal. The only challenge could possibly be on the ground that the punishment of dismissal from service under the doctrine of proportionality would be shockingly disproportionate relating to the misconduct itself, independent of how, the other cases have been handled; or in case where the Disciplinary Authority acted out of bias, or malice; or a clear case of victimization; or where distinction between two separate cases is arbitrary; or the misconduct is identical in every aspect except for the punishment. Page 33 of 39 28. In Coimbatore District Central Cooperative Bank Vrs. Coimbatore District Central Cooperative Bank Employees Association & Another (2007) 4 SCC 669, the Apex Court held as under: “17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the doctrine of proportionality. 18. ‘Proportionality’ is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in to focus true nature of exercise-the elaboration of a rule of permissible priorities. Page 34 of 39 19. De Smith states that “proportionality” involves “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995). 20. In Halsbury's Laws of England (4th Edn), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated: “The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness. Page 35 of 39 21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no ‘pick and choose’, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a ‘sledgehammer to crack a nut’. As has been said many a time; “where paring knife suffices, battle axe is precluded.” 29. Considering the case laws cited and discussed hereinabove, this Court is of the view that the doctrine of proportionality may be invoked when the punishment is disproportionate to the mischief proved and established against a delinquent. This Court is aware of the law that in exercise of writ jurisdiction, it should be slow in interfering with the decision of the Disciplinary Authority on the quantum of penalty. Similarly judicial review is not permissible where principles of natural justice have been followed which means enquiry has been conducted in the manner contemplated under law without any prejudice delinquent. If no proper and reasonable opportunity was provided to a delinquent departmentally proceeded with, under such circumstances, it shall have to be corrected by judicial intervention. Having taken judicial notice of the principles enunciated by the Apex Court in the decisions (supra), this Court shall have to examine whether the punishment of dismissal from service as against the petitioner needs a revisit. This Court is inclined to consider the mitigating circumstances in favour of the petitioner while reaching at a decision whether removal from service by dismissal is a punishment proportionate to the misconduct alleged and established against him. 30. Having regard to the materials on record, it is not in denial that the petitioner has had a spotless track record. Rather the record reveals that there has been appreciation as a token of recognition received by the petitioner at different times of his service career. It is not brought on record from the side of Bank that the petitioner was subjected to any other disciplinary action alleging misconduct except the solitary case which ended in his dismissal from service. But while imposing such penalty, as it is made to appear, the Authorities concerned have given no importance to the untarnished track record of the petitioner. It is not that the petitioner was having a blemished career and therefore, the higher-ups lost confidence in him, hence, had to take such a decision of removal from service. This Court is aware of the fact that the Bank suffered a huge loss and it has been on account of negligence or due to lack of diligence or for being casual or over-confident, which is, of course, unbecoming on the part of a Bank official occupying a responsible position. No doubt, for the professional negligence or oversight, it created an opportunity and a gap for the fraud to manifest and is considered a breach of institutional trust. As a Bank employee, one must discharge duties with utmost diligence. At times acting without care or outside prescribed guidelines collapses the institutional discipline. This Court aware of the above aspects of the case but as is understood, in the jest of reaching a set professional target or raising the deposits of the Bank utilizing the outside manpower has led to the fraud, to which, the petitioner became a soft target. In a position of trust, higher standard of integrity and devotion is attached, which is more expected in a commercial institution like Bank. However, there appears to be absence of any malafide or direct connivance in the fraud though for the carelessness or want of diligence of the petitioner, the fraud has taken place, hence, a case of serious misconduct and cannot escape action for the breach and therefore, he has been shown the doors but in the humble view of the Court, for him having a spotless career till the very end, removal from service with dismissal appears to be disproportionate as it has disentitled him to pension and other retiral benefits even snatching away the opportunity of future employment. Keeping in view the aforesaid facts, this Court considers the dismissal order against the petitioner is a harsher penalty. 31. The petitioner served the Bank for nearly 25 years without any administrative action against him. Never ever any financial irregularities were alleged against the petitioner during his entire service period. Not only that, the fraud was reported by him immediately after it was learnt by him. No any material is on record to suggest that there has been any pecuniary gain by the petitioner on account of the fraud. No doubt, gross negligence or failure to exercise due diligence is a serious financial risk and for that, the petitioner is liable to action and cannot be fully absolved but for the isolated or solitary wrong committed by him, dismissal from service is definitely disproportionate to the misconduct attributed. That apart, no one else was roped in and chargesheeted except the petitioner when he was not directly looking after the deposits. One of the officials received a lesser punishment and another was made a prosecution witness but the petitioner being the head of the Bank has been held responsible, which is perfectly alright but for a spotless and successful career all through, imposition of a punishment of dismissal is on the higher side. 32. The Apex Couty in Union of India and others Vrs. Sankar prasad Ghosh and another 2008 5 SLR 170 has held and observed that livelihood is recognized as a fundamental aspect of the right to life and being dismissed from service, not only deprives one of his livelihood but also renders him unemployable resulting in what is described as a civil death as the ability to support oneself at a stage when capacity to find alternative employment is greatly diminished. After having rendered service for more than two decades and spent primetime of life with unabated contributions and unblemished career, for the kind of allegations on record and established with an enquiry conducted, even though, this Court is in favour of a major penalty but unable to subscribe to the view of the Authorities concerned for a dismissal order against the petitioner, who deserves a lesser one and therefore, the need for a revisit on the quantum of punishment. This Court is also alive to the fact that normally on the nature of punishment in departmental enquiries, it lies within the domain of the Disciplinary Authority but considering the past service record with no any financial irregularities ever reported rather the petitioner had a good performance appraisals, in the humble of the Court, it would be too harsh a punishment of dismissal from service, which should instead be substituted by compulsory retirement. At this distant point of time, to remand the matter back to the redetermine the punishment, an exercise which is normally undertaken by the Disciplinary Authority, according to the Court, is to further drag and delay the process, when the petitioner has crossed his prime of life. 33. Accordingly, it is ordered. 34. In the result, the writ petition stands partly allowed. As a necessary corollary, the impugned orders at Annexure-16,17 and 23 are hereby modified to the extent indicated hereinabove with reduction in punishment awarded to the petitioner from removal of service by dismissal to his compulsory retirement for the reasons stated. 35. In the circumstances, there is no order as to the costs. (R.K. Pattanaik) Judge Kabita