IMPORTANT POINT
While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority.

Headnote:Evidence Act, 1872-Sections 45, 47 and 73 - Handwriting Experts opinion in Domestic enquiry against charge of Bank employee for the unauthorised withdrawal from the customer s account-Employee dismissed -Single Judge in writ petition set aside order of dismissal on re-appreciation of evidence-D.B. reversed-Appeal to Supreme Court-Whether Division Bench was right in its approach? (Yes)-Appeal dismissed scope of judicial review in writ petition highlighted by case law.
       Held : The 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. (Para 6)
       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. This judgment of the High Court is under challenge. (Para 7)
       To start with the approach of the learned Single Judge as regards evidence of V.K. Sakhuja is clearly erroneous. Even 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. Sections 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 other admitted or proved. Section 45 itself provides that the opinion 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. (Paras 10 and 11)
       Held after case law : Considering 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 accordingly. (Para 21)

JUDGMENT

Arijit Pasayat, J.-Order 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 filed.

2. Factual background filtering out unnecessary details is as follows:

Appellant (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.

3. One 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. Report 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 account.

4. Enquiry 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.

5. The 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:

"On 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.

Charge :

You have been working at Canara Bank, DDU Marg, New Delhi Branch since 7-3-1986.

One Shri S.V. Deshpande, Advocate, Supreme Court of India is maintaining his S.B. 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 4272 to one Sri Mohinder Kumar on the strength of a purported letter in violation of the laid down procedure of the bank. Thereafter, 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:

Date Cheque 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.

The cheque No. 46

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2003 Supreme(SC) 202

IMPORTANT POINTWhile exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority.

Cases Referred (4)

IMPORTANT POINT
While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority.