R.B. Misra, J.@mdashHeard Sri K.N. Mishra, learned Counsel for the petitioner and Sri Yashwant Varma, learned Counsel for the respondents.
2. In this petition the prayer has been made to quash the order of removal dated 8.8.1990 (Annexure-2 to the writ petition) and order dated
15.10.1993/30.11.1993 (Anncrxure-1 to the writ petition) whereby the appeal of the petitioner has been rejected. Further prayer has been made
for commanding the respondents to reinstate the petitioner in service with retrospective affect along with full baekwages.
3. The facts necessary for adjudication of the case arc that the petitioner joined the services of the Bank as a Clerk in the year 1962. He has been
promoted to Officer Gradc-II (Now J.M. G.S.I.) in the year 1970 and has been posted as Branch Manager, Mirza Murad Branch in the year
1980. He has been transferred from Mirza Murad Branch to D.L.W. Branch on 24.5.1984 and handed over the charge on 30.5.1984.
4. According to the petitioner vide order dated 8/10.1.1985, petitioner was suspended for alleged irregularities to have been committed by the
petitioner while posted as Branch Manager, Mirza Murad Branch, Varanasi.
5. According to the petitioner, the petitioner was served with a charge-sheet on 4.10.1988 i.e., after a period of 3 years 10 months, by the
Disciplinary Authority which was duly replied by the petitioner on 14:10.1988, however, no charge of any embezzlement or misappropriation of
bank''s money has been alleged against the petitioner, rather charges are very vague in nature that the petitioner failed to discharge his duties with
honesty, devotion and diligence between 1980 to May, 1984 while posted in Bank at Mirza Murad Branch. In brief, petitioner was charged for:
I. (a) For granting various credit facilities to Shri C.B. Singh and his family members.
I. (b) For granting loans to aforesaid persons, four carpet firms and one general store being located in the same compound and complex.
I. (c) The petitioner has been charged for his failure to ensure the contribution of required margin money by the borrowers and for failure to obtain
valuation report at the time of disbursement of loan.
II. For allowing to drawn C.C. beyond sanctioned limit without proper ensuring that stock placed and hypothecated to the bank were sufficient to
cover the outstandings.
III. For illegal granting of loan to one Rajmani Yadav Rs. 10,000/- under IRDP scheme though he was not entitled for grant of loan.
IV. For granting agricultural loan for purchase of tractors to some borrowers without obtaining the stipulated margin money.
6. According to the petitioner all the charges were replied by the petitioner stating that Sri C.B. Singh, Sri A.B. Singh and Sri R.P. Singh, in whose
matter the allegations I(a) and I(b) have been made, have inherited the property after death of their father and are engaged in individual business
and no favour has been made to them, needless to say that their business is situated in joint complex. The credit of all the borrowers were duly
verified before grant of loan. The petitioner also denied to have done any action apart from prevailing practice in the bank or granted any loan
without ensuring the proper return of the same.
7. According to the petitioner being posted at Mirza Murad Branch i.e., in carpet business area, he had assessed the capacity of
persons/organisastions who were already advanced loans, recommended their cases authorities to enhance their cash credit limit vide letter dated
5.4.1984 (Annexure-8 to the writ petition) as also similar recommendations in favour of other business firms giving their position as per encolsure
Annexure-9 to the writ petition and credit limit was finally enhanced after getting positive response from the higher authorities for enhancing the
limit.
8. Even after being transfer the petitioner went to Mirza Murad Branch to cure the incomplete documents, all the loans were made secured, where
parties continued to pay the loan to the bank, dispute this suits were filed in District Varanasi, and petitioner all along participated as witness on the
direction of the bank and all the such cases have been decreed in favour of the bank though petitioner went as witness in the Court during
suspension and even after termination.
9. The matter was kept pending and finally enquiry started on 14.1.1989 i.e., after a period of five years from the suspension and it was concluded
on 30.1.1990. Though enquiry was highly delayed, however, petitioner participated in the enquiry and Inquiry Officer gave the following findings:-
Inquiry Officer Disciplinary Authority
Charge I(a) Proved Proved
Charge I(b) Not proved Proved
Charge I(c) AP Singh not proved, Proved
Kamlesh Singh proved
C.B. Singh proved.
Charge No. II Proved Proved
Charge No. III Not proved Not proved
Charge No. IV Not proved Proved
10. Out of 6 charges so levelled against the petitioner, 4 were not proved, one was partly proved to the extent that proper margin money was not
ensured though there is not charge of embezzlement and one was proved that cash credit limit was enhanced beyond sanctioned limit without
obtaining permission and without proper pledge/hypothecation in the bank. According to the petitioner he has been made victim of only technical
circumstances and technical charges but there is no charge of any embezzlement/misappropriation of money against petitioner rather his records
were all along very clean.
11. According to the petitioner the time limit for completion of disciplinary proceedings in case where major punishment is awarded, as provided
for non-C.V.C. cases is 11 months, whereas it took 5 years and eight months in the matter of the petitioner.
12. According to the petitioner the Supreme Court State of Andhra Pradesh Vs. N. Radhakishan, that delay in enquiry has caused prejudice to the
respondents and even if there would have been report against the petitioner, such enquiry was vitiated. However, in the present case, Inquiry
Officer submitted report in favour of the petitioner and majority of charges were not proved, except one partly and one proved which arc basically
of technical nature and are not so serious that punishment of dismissal or removal from service is to be awarded.
13. According to the petitioner without any further proceeding into the matter, the appointing authority vide order dated 8.8.1990 imposed order
of removal from service on the petitioner from the bank, though the said order has been passed without any opportunity of hearing or show cause
notice to the petitioner. From the order dated 8.8.1990, it is apparent that appointing authority on him own without any opportunity of hearing
disagreed with the finding of the Inquiry Officer and passed order of punishment showing that all the charges stand proved against the petitioner
which is absolutely illegal and against the settled principle of law since appointing authority cannot defer with the finding of Inquiry Officer unless a
fresh opportunity of hearing is given to the petitioner and his finding to the effect that report of Inquiry Officer was against the record before the
Inquiry Officer. Similar controversy has been decided by the Supreme Court in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra,
where it has been clearly held by the Supreme Court that Disciplinary Authority must afford an opportunity of hearing before passing final order
and giving the contrary finding other that given by the Inquiry Office and while reversing the finding in favour of the employee, and any order
passed without affording opportunity of being heard is against the principle of natural justice. The aforesaid Kunj Bihari Mishra''s case has further
been considered by the Supreme Court in Yoginath D. Bagde Vs. State of Maharashtra and Another, and the Supreme Court further in Yogi
Nath''s case held that when inquiring authority held the charges against the appellant, as not proved, and Disciplinary Authority disagreeing with the
Enquiry Officer held that charges arc proved, as such order suffers from infirmities and punishment order imposed on appellant was set aside.
14. In Kunj Bihari Mishra''s case deciding the case of SBI and Ors. v. Arvind Kumar Shukla 2001 (2) AWC 1441, the Supreme Court held that
Disciplinary Authority is bound to record its tentative reasons for such disagreement and is bound to give reasons to the delinquent employee that
opportunity to represent before passing the final order.
15. The petitioner further places the reliance on the judgment of the Rajasthan High Court in the case of Bagwan Singh v. State of Rajasthan 2000
(2) ESC 949, on the question of quantum of punishment.
16. According to the petitioner, the quantum of punishment is too harsh looking into the charges alleged against the petitioner and termination from
service, seriously effecting the petitioner and his family members.
17. The appeal filed against the order of punishment dated 8.1.1990 was also dismissed by ,the Appellate Authority by order dated
15.10.1993/30.11.1993 without any opportunity of hearing, It is necessary to note that proposal enhance the cash credit limit to Girijesh General
Store by letter dated 5.4.1984 (Annexure No. 8 to the writ petition) of the petitioner along with other recommendation was accepted and
enhanced by Regional Office vide order dated 10.7.1985, as such action of petitioner that he did not take care and exceeded the C.C. limit
without proper sanction and without securing the property of the bank has become redundant in itself since recommendation of the petitioner has
been accepted by the Regional Office and C.C. Limit was subsequently enhanced.
18. It is also noted that a F.I.R. lodged against the petitioner being Criminal Case No. RC 40-85 has been decided by the Hon''ble Court and
petitioner has been acquitted and an another F.I.R. lodges on similar circumstances where enquiry was concluded, and nothing was found against
the petitioner and no adverse finding during enquiry was revealed against the petitioner.
19. The petitioner was 53 years in 1994 when he filed the present writ petition and was to attain the age of 60 years in 2001, if he was allowed to
continue in, service the petitioner was illegally kept under suspension since 1985 i.e., was victimised for more than 18 years, there it was in the
interest of justice to quash the order of punishment including appellant order with direction to the respondents to release the salary including
bakwages with all the consequential benefits.
20. According to Para 10 of the counter affidavit, the State Bank of India (Supervising Staff) Service Rules nowhere contemplates the submission
of a ""second show cause notice"" before passing of an order of punishment. The relevant provisions of the aforesaid Rules are being quoted as
below:-
Clause 50 (2) (XXI) (a). On the conclusion of the inquiry, the Inquiring Authority shall prepare a report which shall contain the following :-
(a) a gist of the articles of charge and the statement of the imputations of misconduct;
(b) a gist of the defence of the employee in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge;
(d) the findings on each article of charge and the reasons therefor.
Explanation.- If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original
article of charge, it may record its findings on each article of charge :
Provided that the findings on such article of charge shall not be recorded unless the employees has either admitted specifically and not by
interference the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of
charge.
(b) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which
shall include :
(I) the report of the inquiry prepared by it under (a) above;
(II) the written statement of defence, if any, submitted by the employee referred to in clause (xv);
(III) the oral and documentary evidence produced in the course of the inquiry;
(IV) written briefs referred to in clause (xviii), if any; and
(V) the orders, if any, made by the Disciplinary Authority and the Inquiry Authority in regard to the inquiry.
(3) (i) The Disciplinary Authority, if it is not itself the Inquiry Authority, may, for reasons to be recorded by it in writing, remit the case to the
Inquiring Authority-whether the Inquiring Authority is the same or different-for fresh or further inquiry and report and the Inquiring Authority shall
thereupon proceed to hold inquiry according to the provisions of sub-Rule (2) as far as may be.
(ii) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such
disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(iii) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties
specified in Rule 49 should be imposed on the employee, it shall, notwithstanding anything contained in sub-Rule (4), make an order imposing such
penalty :
Provided that where the Disciplinary Authority is of the opinion that the penalty to be imposed is any of the major penalties specified in clauses (c),
(f), (g) and (h) of Rule 49 and if it is lower in rank to the Appointing Authority in respect of the category of employees to which the employee
belongs, it shall submit to the Appointing Authority the records of the enquiry. specified in clause (xxi) (b) of sub-Rule (2), together with its
recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it
considers in its opinion appropriate.
21. The two main arguments raised by the Counsel for the petitioner were :
(a) It was incumbent upon the Disciplinary Authority to give an opportunity of hearing to the petitioner at the time when he did not concur with the
findings returned by the Inquiry officer. Having failed to provide such as opportunity to the petitioner, the order of removal deserves to be set
aside, and
(b) The punishment imposed upon the petitioner was disproportionate to the charges levelled against him.
22. In support of his contentions reliance was placed by the petitioner on the following three decisions of the Supreme Court:
(I) Punjab National Bank and Others Vs. Sh. Kunj Behari Misra,
(II) Yoginath D. Bagde Vs. State of Maharashtra and Another, and
(III) SBI v. Arvind K. Shukla 2001 (2) AWC 1441.
23. According to the respondents, to establish this contention it was incumbent upon the petitioner to plead and prove what prejudice has been
caused to him, and the petitioner has neither pleaded nor has he in the writ petition laid any foundation to establish as to what material prejudice
has been caused to him. In order to succeed on this score it was incumbent upon the petitioner to establish before this Court what he could have
said which might have impressed the Disciplinary Authority to concur with the findings of the Inquiry Officer. According to the respondent bank no
interference is warranted and the matter need not be remanded to the Disciplinary Authority. According to the chart in respect of both charges No.
I (a), I (c) and charge No. 2, both the Inquiry Officer as well as the Disciplinary Authority have concurred and recorded categorical findings that
the said charges stood proved against the petitioner. The charges on which both the Inquiry Officer and the Disciplinary Authority concurred were
sufficient for imposition of the penalty of removal upon the petitioner. The misconduct committed by the petitioner, who was a Branch Manager,
were sufficient to maintain the charge of gross misconduct and, therefore, the order of removal on the basis of these charges which stood proved,
as held by both the Inquiry Officer as well as the Disciplinary Authority, were sufficient for the imposition of penalty of removal upon the petitioner.
24. In support of the aforesaid contentions, the respondent bank relies upon the following decisions of the Supreme Court :
I. Zora Singh,
II. State of Orissa Vs. Bidyabhushan Mohapatra, and
III. Pyare Lal Sharma Vs. Managing Director and Others,
In Zora Singh (supra), the Supreme Court has observed as below :
The principle, that the decision of a Tribunal would be vitiated if some of the reasons relied on by it for its conclusions turn out to be extraneous or
otherwise unsustanable, applies to cases in which the conclusion is arrived at on subjective satisfaction. For, in such cases it would be difficult for
superior Court to final out which of the reasons brought about such satisfaction, But in a case where the conclusion is based on objective facts and
evidence, if it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a Superior Court would not interfere if
the finding can be sustained on the rest of the evidence. The reason is that in writ petition for certiorari the Superior Court does not sit in appeal,
but exercises only supervisory jurisdiction and therefore, does not enter into question of sufficiency of evidence.
25. In State of Orissa and Ors. v. Bidyahhushan Mohaptra (supra), the Constitution Bench of the Supreme Court has observed that the Court has
no jurisdiction if the findings of the Enquiry Officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to
reconsider that order because in respect of some of the findings but not all, it appears that there had been violation of the Rules of natural justice.
The Supreme Court in Bidhyabhushan Mohapatra (supra) has also observed that if the order can be supported on one ground, for which
punishment can lawfully be imposed, it is not for the Court to consider whether the ground alone would have weighed with the authority in
punishing the public servant.
26. In Pyare Lal Sharma (supra), the Supreme Court has held that the alleged act must constitute misconduct and penal under the law prevailing at
the time of its commission and the punishment cannot be inflicted if the act became penal subsequently. In Pyare Lal Sharma (supra), the Supreme
Court following the judgments in State of Orissa v. Vidhyabhushan Mohapatra and Railway Board v. Niranjan Singh (1969) 1 SCR 548, has held
that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the Courts to consider whether that
ground alone would have weighed with the authority punishing the public servant.
27. In respect of the quantum of punishment the attention of this Court is invited to the contents of Paragraph No. 14 of the counter affidavit in
which it has been averted that because of the negligence and lack of diligence committed by the petitioner the Bank was not only prejudiced but
was also put to loss. It has been stated in the said paragraph that even though the suits filed by the Bank were decreed in its favour, no execution
proceedings could be instituted as the advances made by the petitioner were without proper security and without any mortgage of properties from
which the amount due to the Bank may have been recovered and dues of the Bank satisfied, The attention of the Court is also invited to Annexure
CA-2 and Annexure CA-3 which are charges filed in evidence and in support of the averments made in Paragraph 14 of the counter affidavit. The
petitioner in his reply has not disputed these averments and facts brought on record.
28. Regard may also be had to the judgment of the Supreme Court rendered in the case of Disciplinary Authority-cum-Regional Manager and
Others Vs. Nikunja Bihari Patnaik, in which the Supreme Court has clearly held that where it is established that a Bank Officer has made advances
and allowed withdrawals without taking security or beyond his authority no further proof of loss is really necessary. The Supreme Court has further
held that an Organisation like the Bank can function properly and effectively only if its Officer/s and Employees observe the prescribed norms of
discipline and such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous
considerations.
29. According to the respondent-bank the punishment of removal imposed upon the petitioner was commensurate with the act of misconduct
levelled against him and found proved. The punishment imposed upon the petitioner in any view of the matter cannot be said to be of such a nature
that it shocks the conscience. In the case of Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, the
Supreme Court has taken note of all earlier cases decided on the question of punishment and has held that the Administrator''s decision can be
interfered with only if that were illogical or suffered from procedural impropriety or was shocking to the conscience of the Court in the sense that it
was ""in defiance of logic or moral standards"". The Supreme Court has observed that ""to put differently unless the punishment imposed by the
Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal there is no scope for interference.
30.I have heard learned Counsel for the parties, I find that out of six charges, the Disciplinary Authority had differed from the Inquiry Officer only
in respect of Charge No. l(b) and in respect of Charge No. 4 and the ratio of the decision of Kunj Bihari Mishra (supra) and Yogi Nath D. Bagde
(supra) is squarely applicable so far the assertion of the petitioner that the opportunity was not proved to the petitioner by the Disciplinary
Authority while differing with the findings of the Inquiry Officer.
31. However, it is also well settled that this Court is not to sit over the finding of the Disciplinary Authority. The absence of the petitioner in the
compelling circumstances and out of necessity that should not be termed so grievous to award such a major punishment of dismissal of the
petitioner from service and the punishment inflicted over the petitioner is disproportionate to the charges made against him. In G. Ganayutham the
Supreme Court has observed that the matter of penalty imposed in disciplinary case, unless the Court/Tribunal opines in its secondary role that the
administrator was, on the material before him, irrational according to Wednesbury (a) or CCSU (b) norms, the punishment cannot be quashed.
Even then, the matter has to remitted back to the appropriate authority for reconsideration. It is only in very rare case that the Court might to
shorten litigation think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority.
(a) Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) I KB 223 : (1947) 2 AER 680.
(b) Council of Civil Service Union v. Minister for Civil Service 1985 AC 374 : (1984) 3 AER 935.
In U.P. S.R.T.C. and Others Vs. Har Narain Singh and Others, in the scope of judicial review under Article 226 of the Constitution in the matter
of dismissal of an employee from service pursuant to the departmental inquiry, quashing of such order of dismissal after reappreciating the evidence
was held beyond the jurisdiction of High Court as it was not sitting in appeal over the findings of the Disciplinary Authority as held by the Supreme
Court. In State of Punjab and others Vs. Bakhshish Singh, the Supreme Court in exercise of its power of judicial review in the matter of
departmental inquiry and penalty has held that the Court is not entitled to determine that a particular act was a ""gravest act of misconduct
warranting dismissal It was also held that it is for the Disciplinary Authority to pass appropriate punishment. The Civil Court cannot substitute its
own view to that of the disciplinary as well as the Appellate Authority on the nature of punishment to be imposed upon the delinquent officer,
grave, ought not have interfered with the decree of trial Court.
32. In the present facts and circumstances it is necessary to relegate the mater to the Disciplinary Authority, who may issue a fresh show cause to
the petitioner and after providing opportunity of hearing to the petitioner and after obtaining the reply by the petitioner shall record its own finding
and while doing so the Disciplinary Authority shall also look into the matter whether the punishment is commensurate to the allegations and
seriousness of the charges against the petitioner. At this stage, it is not necessary to assess the disproprotionality of the punishment as the same may
effect the merits and the findings to be arrived at by the Disciplinary Authority and in this point of view the decision of the Supreme Court in
Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, is not being taken into consideration. Therefore it is not
indicate that the punishment awarded by the Disciplinary Authority is shockingly disproportionate or not, it is left to the Disciplinary Authority to
record such funding in that respect.
33. In view of the above observations, the matter is relegated back to the Disciplinary Authority to decide the matter afresh within six months from
the date of production of the certified copy of this order in consonance to the principle of natural justice and in accordance to the law. The
petitioner shall keep in touch with the Diyciplinary Authority and shall not take unnecessary adjournments and shall ensure all possible co-operation
and even if written submission is filed by the petitioner before the Disciplinary Authority in response to the show cause notice that would be treated
10 be sufficient in respect of hearing and reply of the parties concerned.
34. In view of the above observations writ petition is disposed of.