Allahabad High Court
Kuber Narain vs State Bank Of India Through Its Chirman ... on 19 September, 2019
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 17 Case :- SERVICE SINGLE No. - 4808 of 2004 Petitioner :- Kuber Narain Respondent :- State Bank Of India Through Its Chairman and others Counsel for Petitioner :- K.K.Gautam, Pankaj Nath Counsel for Respondent :- N.K.Seth, D.K. Dwivedi, Durga Prasad Dwivedi, Sharad Dwivedi Hon'ble Chandra Dhari Singh,J.
1. Heard learned Counsel for the petitioner and learned Counsel appearing for the Bank.
2. The petitioner has approached this Court challenging the order dated 16.09.2002, whereby the Chairman, State Bank of India (opposite party no.1) has removed the petitioner from services. The petitioner, inter alia, has also challenged the order dated 20.02.2003 passed by the Appellate Authority as well as the order dated 28.04.2004 passed by the Reviewing Authority.
3. Brief facts of the case are that the petitioner was appointed to the post of Clerk-cum-Cashier in the State Bank of India on 29.04.1970 and after competition of six months probation period, he was confirmed on the said post on 29.10.1970. After successfully competing written test and interview, he was promoted to the post of Junior Management, Grade Scale-I and thereafter again to the next higher Grade Scale-II.
4. On 31.08.2000, a charge-sheet was served upon the petitioner with a direction to submit written statements within 15 days. The petitioner was again served with another charge-sheet on 18.11.2000 with the same direction. In order to initiate preliminary inquiry, the Deputy General Manager/ Disciplinary Authority had appointed one Mr. Ashok Baijal as Inquiry Officer. The Inquiry Officer after concluding the inquiry submitted his report on 27.08.2001 holding therein that the charged officer while posted as Branch Manager at Mishra Bazar (Ghazipur) during the period of January, 1997 to August, 1998 failed to discharge his duties with utmost devotion and diligence and acted in a manner unbecoming of a Bank Officer and highly prejudicial to the Bank's interest in violation of Rule 50(4) of State Bank of India Officers Service Rules. However, it was observed by the Inquiry Officer that failure to discharge duties with honesty and integrity is however found not proved.
5. Against the inquiry report, the petitioner was asked to submit reply. The petitioner submitted his reply on 21.09.2001 denying the allegations levelled against him. Vide order dated 16.09.2002, the General Manager (Commercial Banking/ Appointing Authority)/ opposite party no.4 has removed the petitioner from services on the ground that the petitioner was failed to discharge his duties with utmost devotion and diligence and acted in a manner unbecoming of a Bank Official in violation of Rule 50(4) of the State Bank of India Officers' Service Rules and it highly detrimental to the Bank's interest. Aggrieved by the order dated 16.09.2002, the petitioner filed an appeal, which was also dismissed vide order dated 20.02.2008 by the Chief General Manager/ Appellate Authority (opposite party no.3) with the observation that the gravity of the misconduct committed and the lapses held proved on the part of the appellant/ petitioner are grave and the penalty imposed on him is justified. The review petition filed against the appellate order is also met the same fate vide order dated 28.04.2004. Thereafter, the petitioner has approached this Court by means of instant writ petition.
6. Learned Counsel for the petitioner has submitted that two charge-sheets have been served upon the petitioner with the same allegations. He further submits that the inquiry was entrusted to a person who has lack of experience in discharging of quasi-judicial duties. It was the first departmental proceedings entrusted to him in his entire service career and has failed to keep either the settled procedure or law on departmental inquiries or the principles of natural justice and consequently, the findings recorded by him are against law and the action of removal from service could not have been taken on such findings.
7. It has again been submitted by learned Counsel for the petitioner that the General Manager-respondent no.4 while passing the impugned order has failed to consider the fact that there is no finding of the Disciplinary Authority on the findings of the Inquiry Authority. The Deputy General Manager/ Disciplinary Authority has no role in taking a decision on the allegations after the conclusion of the inquiry. In normal course, the Disciplinary Authority shall examine the findings of the Inquiry Officers and thereafter sent his recommendations to the Appointing Authority for taking final decision but in the instant case, this aspect is completely missing in the inquiry proceedings, therefore, the inquiry proceedings is defective.
8. Learned Counsel for the petitioner has contended that the impugned order has been passed without application of mind in a mechanical and biased manner as there is no evidence on record to prove any of the allegations and there is no recommendation of the disciplinary authority. The impugned order as well as the appellate order has also been passed without affording of any opportunity to the petitioner which is gross violation of law laid down by Hon'ble Apex Court in the case of Kshitish Chandra Kirtania vs. Union of India and others; 1991 (3) SLR 271-279.
9. Learned Counsel for the petitioner next contended that the respondents have failed to produce any evidence which shows that the loans under SCP/ IRDP were sanctioned beyond the targets fixed and only on the basis of presumption, it has been held that in the subsequent years only 35 or 31 loans having been sanctioned and in the preceding years, the higher targets must not have been fixed which is based on no evidence. The respondents have also failed to adduce any evidence that either the subsidy had been misutilized or that the petitioner facilitated the misutilization of the subsidy. The liquidation of loan liability is the sole prerogative of the borrower and if they intend to liquidate the same in shorter period by tendering the money across the country of the Bank, the Branch Manager, in the instant case the petitioner, had no authority to deny the acceptance.
10. Learned Counsel for the petitioner has again submitted that in view of above, the impugned orders were passed in violation of principles of natural justice as well as in violation of settled law and also the impugned order is not proportionate to the offence committed by the petitioner, therefore, it deserves to be quashed and the writ petition is liable to allowed.
11. Per contra, learned Counsel appearing for the Bank has vehemently opposed the prayer of learned Counsel for the petitioner and submitted that the disciplinary proceedings were initiated against the petitioner in accordance with the Rules. The charges levelled against the petitioner were serious in nature and, therefore, the petitioner has been removed from service taking into consideration the inquiry report and the recommendation of the disciplinary authority. The petitioner has failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts are prejudicial to the interest of the Bank.
12. It has also been submitted by learned Counsel appearing for the Bank that the second charge-sheet dated 18.11.2000 is an amended charge-sheet to the earlier charge-sheet dated 31.05.2000, therefore, it cannot be said that both the charge-sheets contains same allegations. The impugned order has been passed after considering the entire record and there is no provision in the State Bank of India Officer's Service Rules to provide opportunity against the findings/ recommendation of the disciplinary authority to the appointing authority. The principles of natural justice has strictly been followed.
13. Learned Counsel for the Bank has further submitted that the appeal has been decided as per the prescribed procedure. During disciplinary proceedings adequate opportunity was given to the petitioner, therefore, it cannot be said that the principles of natural justice in this case have been violated in any manner. He again submitted that furnishing of inquiry report to the petitioner was not necessary in this case as the inquiry report has not been considered by the disciplinary authority, who rather has given his own finding based on the evidence available on record of the disciplinary proceedings.
14. Learned Counsel for the Bank has contended that jurisdiction of this Court under Article 226 of the Constitution of India encompasses in its folds judicial review of only the decision making process and not that of the decision itself. The scope of interference by this Court in writ jurisdiction in disciplinary matter is very limited. It has also been argued on behalf of the respondent-bank that during the course of inquiry the petitioner was given appropriate time to file reply and that the Disciplinary Authority has not disagreed with the Enquiry Officer while passing the punishment order, though he has given his own finding which is a healthy procedure adopted by the Disciplinary Authority and thus the order of punishment cannot be faulted with.
15. Learned Counsel for the Bank has again submitted that the impugned orders have been passed in accordance with law after after considering the submissions made by the petitioner. There is no merit in the instant writ petition and, therefore, the writ petition is liable to be dismissed.
16. I have heard learned Counsel for the parties and perused the record.
17. In accordance with the provisions of State Bank of India Officers Service Rules, major penalty can be imposed by the Appointing Authority or an Authority higher than him on the recommendations of the Disciplinary Authority. It is also settled law that no penalty could have been imposed by the Appellate Authority in the absence of the recommendations of the Disciplinary Authority. After perusal of the material on record, I am of the view that the Appointing Authority had passed the order annexed as Annexure-1, without giving the reasons for his agreeing/ disagreeing with the different recommendations of the Disciplinary Authority.
18. In this case, the Disciplinary Authority ever considered the findings of the Inquiring Authority, the proceedings or the submissions of the petitioner against the said findings or that he ever made any recommendations to the Appointing Authority for imposing major penalty on the petitioner is denied. In the instant case, neither the copy of the alleged recommendations has ever been served upon the petitioner nor there is any mention in the order of the Appointing Authority. The Disciplinary Authority ought to have served a copy of his finding and recommendations upon the petitioner so as to enable him to make his comments thereon.
19. Charge No.2 against the petitioner is that most of the loans sanctioned by the petitioner under SCP were closed within 2-3 months from the date of sanction and thereby he had facilitated the misutilisation of subsidy and further the said action of the petitioner had exposed the Bank to a likely financial loss. The Charge No.3 against the petitioner was also to the effect that he facilitated in misutilisation of the subsidy by permitting the loan Account Nos.SCP-97/ 120, 121 and 122 to be closed within short period. Thus, the loan disbursed under Swakshar Mukti Yojna were closed by the petitioner by making debit to the borrower's saving Bank Accounts and he also failed to obtain bills/ quotations/ receipts evidencing creation of the assets. The Enquiry Officer while submitting the inquiry report has held as under:
"The charge of failure to discharge duties with honesty and integrity is however found not proved. I therefore, find the article of charge against Sri Kuber Narain as partly proved."
20. In view of above facts, the charge against the petitioner of his failure to discharge his duties with honesty and integrity is not proved. In such a situation, there is no misconduct on his part. In the case of Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others; 1993 (4) SCC 727 which is a Constitution Bench judgment and in para 30 of the said judgment, the Apex Court has held as under:
"30. Hence the incidental questions raised above may be answered as follows:
[i] Since the denial of the report of the Enquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
ii] The relevant portion of Article 311(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the Enquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Enquiry Officer's report notwithstanding the nature of the punishment.
[iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.
[iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Enquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
[v] The next question to be answered is what is the effect on the order of punishment when the report of the Enquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
21. In the case of Managing Director, ECIL, Hyderabad (Supra), the Apex Court had considered the case of Union of India and others Vs. Mohd. Ramzan Khan; 1991 (1) SCC 588 and clearly laid down that denial of report of Enquiry Officer will amount to denial of of reasonable opportunity and breach of principles of natural justice. Hon'ble Supreme Court has further observed that statutory rules which deny the report to the employee are against the principles of natural justice and, therefore, invalid.
22. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the petitioner is entitled for appropriate opportunity of hearing before passing any final or punishment order. As regards, the charges, what I observed is that the alleged lapses against the petitioner are procedural in nature. The charges do not make any mention with regard to any ill motive on the part of the petitioner, neither any such motive is found proved during the course of departmental proceedings conducted against him. Therefore, the charges of failure to discharge duties with honesty and integrity was found not proved against the petitioner. In this case, the petitioner who was punished with a major penalty was not properly heard.
23. The order dated 16.09.2002 whereby the opposite party no.1 has removed the petitioner from services is hereby quashed. The order dated 20.02.2003 passed by the Appellate Authority and the order dated 28.04.2004 passed by the Reviewing Authority are also quashed.
24. The opposite parties are directed to give all consequential benefits, including the post retirement benefit to which he would have been entitled had he not been dismissed from service of the Bank, for the reason that he has since attained the age of superannuation. I also direct that so far as the back wages, including the wages to be determined by giving notional promotions to the petitioner, if any, are concerned, he shall be entitled only to 50% of total back wages. The consequential benefits arising out of this judgment and order shall be made available to the petitioner within a period of two months from the date a certified copy of this order is furnished to be competent authority.
25. Accordingly, the writ petition is allowed.
Order Date :- 19.09.2019 akverma