Allahabad High Court
Sarthi Raha vs Union Of India And 3 Ors on 13 November, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 28.05.2018 Delivered on 13.11.2018 Court No. - 34 Case :- WRIT - A No. - 49642 of 2014 Petitioner :- Sarthi Raha Respondent :- Union Of India And 3 Ors Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- A.S.G.I.,S.C.,Satish Chaturvedi Hon'ble Sudhir Agarwal,J.
Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This writ petition under Article 226 of the Constitution of India has been filed by Petitioner-Sarthi Raha, an Officer in the Grade of MMGS-III in State Bank Of India assailing punishment order dated 25.05.2009 passed by General Manager (Networking-II), imposing punishment of dismissal and Appellate order dated 29.07.2010 passed by Chief General Manager dismissing appeal.
2. Facts in brief giving rise to present writ petition are that petitioner was initially appointed as 'Clerk' in State Bank of India (hereinafter referred to as 'Bank') on 30.05.1970. He was promoted in management cadre as Officer, Junior Management Grade, Scale-I, in 1979 and further promoted in Middle Management Grade, Scale-II, and then Middle Management Grade, Scale-III. His date of birth is 02.06.1947, after completing 30 years of pensionable service, he was liable to retire on 30.06.2005. Since he was only 58 years of age on 30.06.2005, in terms of Rule 19 (1) of Rules, 1992, his services were extended for a period of two years vide order dated 01.07.2005 issued by Assistant General Manager, Zonal Office, Kanpur from 02.06.2005 to 01.06.2007 i.e. till he attained the age of 60 years. On 10.01.2007 petitioner submitted a letter, addressed to General Manager, seeking voluntary retirement on the ground of health, requesting to relieve him on the close of business on 10.02.2007. Petitioner was communicated with letter dated 10.02.2007 issued by Manager (H.R.) that he will retire from Bank's service at the close of business on 30.06.2007 and may submit requisite documents for preparation of his retiral benefits.
3. Thereafter vide order dated 08.05.2007 issued by General Manager (Networking-II) petitioner was placed under suspension in terms of Rules 68(A)7(i) of State Bank of India Officers Service Rules 1992, (hereinafter referred to as 'Rules 1992'). He was also served with a charge-sheet dated 09.06.2007 containing 9 charges which read as under:-
"Charge No. 1: You have sanctioned a large number of Housing Loans without conducting pre-sanction survey. This has resulted in loans being granted to ineligible borrowers.
Charge No.2: In order to unduly accommodate the borrowers, you have sanctioned housing loans without making proper assessment. You have accepted inflated costs of land, project cost, and unjustified amounts shown as already invested in the project to sanction higher loan limits.
Charge No. 3: You did not submit BMDPs in respect of a number of housing loans to controllers to avoid observation therefrom.
Charge No. 4: You did not conduct post disbursement inspection / follow up. Non-creation of assets or incomplete projects, despite disbursement of entire loan amounts could thus not come to Bank's notice, exposing bank to substantial financial loss.
Charge No. 5: In violation of Bank's instructions, you did not obtain NECs in respect of property offered as security for the loans. NECs were arranged by borrowers/middlemen. You have thus sanctioned Housing Loans against fake NECs exposing the bank to substantial financial loss.
Charge No. 6: You did not send the drafts for the amounts of premium recovered from housing loan borrowers to SBI Life. The Bank drafts are lying with the Branch and rendered stale. Your lapse may make the Bank liable in case of any untoward happening to the life of borrowers.
Charge No. 7: You have manipulated your own loan accounts with the branch.
Charge No. 8: You flouted Bank's Systems and Procedures while sanctioning Personal loans.
Charge No. 9: In order to conceal infirmities allowed by you to extend undue benefit to borrowers, you incorrectly classified loan out-standings in CIS advising lower NPA position than actually existed in the branch." (emphasis added)
4. Since departmental proceedings were commenced by service of charge-sheet dated 09.06.2007 and petitioner was to retire on 30.06.2007, after expiry of the period of extension, vide order dated 16.06.2007, General Manager of Bank informed petitioner that Rule 19(3) of Rules 1992 was being invoked and petitioner would be deemed to be in bank's service only for the limited purpose of continuance and conclusion of disciplinary proceedings, already initiated vide charge sheet dated 09.06.2007.
5. Petitioner submitted reply to the charge-sheet vide letter dated 05.07.2007. During course of oral inquiry, petitioner submitted list of documents required for defence but the documents were neither produced before Inquiry Officer for its consideration nor supplied to petitioner.
6. Inquiry report was submitted on 03.11.2008 recording findings on various charges as under:-
"CHARGE NO. 1Allegation No. (I) Partly Substantiated.
Allegation No. (ii) Partly Substantiated Allegation No. (iii) Substantiated Allegation No. (iv) Substantiated Allegation No. (v) Substantiated Allegation No. (vi) Partly Substantiated Allegation No. (vii) No Substantiated Charge No. 2 Allegation No. (I) Partly Substantiated.
Allegation No. (ii) Substantiated Allegation No. (iii) Substantiated Allegation No. (iv) Substantiated Charge no 2 is proved.CHARGE NO. 3
Allegation No. (I) Substantiated.
Allegation No. (ii) Substantiated Charge no. 3 is proved.
CHARGE NO 4 Allegation No. (I) Substantiated.
Allegation No. (ii) Substantiated Allegation No. (iii) Partly Substantiated Allegation No. (iv) Substantiated Allegation No. (v) Substantiated Allegation No. (vi) Substantiated except that A/C Nos 97820, 97842, 97853 & 97808 were not time barred.
Charge no 4 is proved.CHARGE NO. 5
Allegation No. (I) Substantiated Charge no. 5 is proved.CHARGE NO. 6
Allegation No. (I) Substantiated Charge No. 6 is proved.CHARGE NO. 7
Allegation No. (i) Not Substantiated Allegation No. (ii) Not Substantiated Charge No. 7 is not proved.CHARGE NO. 8
Allegation No. (i) Substantiated to the extant of A/C No 97897
Allegation No. (ii) Not Substantiated
Allegation No. (iii) Substantiated.
Charge No. 8 is partly proved.
CHARGE NO. 9
Allegation No. (i) Substantiated
Charge No. 9 is proved."
7. Copy of inquiry report was supplied to petitioner requiring him to submit his representation. Petitioner submitted representation vide letter dated 10.12.2008 against inquiry report. Appointing Authority i.e. General Manager thereafter passed order of punishment on 25.05.2009. There-against, vide memo of appeal dated 07.07.2009 petitioner preferred appeal which has been rejected by Appellate Authority on 29.07.2010.
8. Learned counsel for petitioner contended that petitioner had already sought voluntary retirement and given a months notice, hence he stood deemed retired on and after 10.02.2007, therefore, entire disciplinary proceedings subsequent to 10.02.2007 are petently illegal. He further submitted that Bank has consulted Chief Vigilance Officer (hereinafter referred to 'CVO') but the opinion submitted by CVO has not been supplied to petitioner and therefore material not supplied to petitioner, has been considered which vitiates entire proceedings and in this regard reliance is placed on Supreme Court's Judgement in State Bank of India and Others vs. D. C. Agarwal and Another (1993) 1 SCC 13.
9. Learned counsel appearing for Bank, on the contrary, argued that opinion of CVO is not a material relied either in recording findings against petitioner or to impose punishment upon petitioner hence, it will not vitiate proceedings. He placed reliance on State Bank of India and Others vs. S. N. Goyal, State Bank India and Others vs. Bidyut Kumar Mitra and Others (2011) 2 SCC 316 and U.P. Jal Nigam and Another vs. Jaswant Singh and Another (2006) 11 SCC 464. He further contended that no such issue was ever raised before appellate Authority and at this stage, this issue for the first time cannot be raised in this writ petition which itself has been filed with a huge delay of almost four years inasmuch as appeal was rejected on 29.07.2010 and order was communicated to petitioner but present writ petition has been filed in September 2014 and there is no satisfactory explanation for the said delay. In this regard reliance is placed on Supreme Court's decision in U.P. Jal Nigam and Another vs. Jaswant Singh and Another (2006) 11 SCC 464.
10. Coming to first aspect about deemed retirement on and after 10.02.2007 we do not find any provision entitling petitioner to seek 'deemed retirement' after giving one month's notice.
11. Rule 20(1) of Rules, 1992, talks of termination of service and reads as under:-
"20(1) An officer shall not leave or discontinue his service in the bank without first giving a notice in writing of his intention to leave or discontinue the service or resign. The period of notice required shall be three months and shall be submitted to the competent authority.
Provided that the competent authority may at its discretion permit an officer to resign without notice or forfeiture of security deposit or payment of three month's emoluments in lieu of notice or reduce the period of notice." (emphasis added)
12. The aforesaid rules contemplates a three months notice and admittedly no such notice was given by the petitioner.
13. Retirement is dealt by Rule 19 of Rules, 1992 and it reads as under:-
"19(1) An officer shall retire from the service of the Bank on attaining the age of sixty years or upon the completion of thirty year's service or thirty year's pensionable service, if he is a member of the Pension Fund, whichever occurs first.
Provided that the competent authority may, for reason to be recorded in writing, extend the period of service of an officer who has completed thirty years' or thirty years' pensionable service, as the case may be, should such extension be deemed desirable in the interest of the Bank.
Provided further that an officer who has attained the age of 60 years shall not be granted any further extension in service.
Provided further that an officer may, for reason to be recorded in writing, be retired from the Bank's service after he has attained 50 years of age or has completed 25 years' service or 25 years' pensionable service, as the case may be, by giving him three month's notice in writing or pay in lieu thereof.
Provided further that an officer who has completed 20 years' service or 20 years' pensionable service, as the case may be, may be permitted by the Competent Authority to retire from the Bank's service subject to his giving three month's notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived by it.
2(2) Notwithstanding anything to the contrary in these rules, no officer who has ceased to be in the Bank's service by the operation of, or by virtue of, any provision shall be deemed to have retired from the Bank's service for the purpose of the Imperial Bank of India Employees' Pension and Guarantee Fund Rules or the State Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said pension fund rules as may be applicable to him.
2(3) In case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank's service by the operation of, or by virtue of, any of the said rules or the provisions of these rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings.
Explanation : An officer shall retire from the service on the afternoon of the last day of the month in which he completes the stipulated service or age of 60 years provided that the officer whose date of birth is first of month, shall retire from the service on the afternoon of the last day of the preceding month." (emphasis added)
14. Language of Rule 19 clearly shows that competent Authority may permit retirement from Bank Service on the request of bank's Officer in certain circumstances. However aforesaid Rule clearly shows that there is no 'deemed retirement' but an order of Competent Authority is required permitting Bank's Officers to retire from service before age of superannuation or extended date of retirement. In a similar case, recently Supreme Court in State of U.P. and others Vs. Achal Singh, 2018(3) ESC 459 has held that there is no question of any deemed retirement and no person can claim as a matter of right retirement after giving notice unless competent authority passed such order. Hence, the contention that petitioner was to 'deemed retire' on 10.02.2007, hence subsequent proceedings are illegal, cannot be accepted and we reject the same.
15. Now coming to second aspect, from the pleadings it does appear that respondent-Bank has consulted Central Vigilance Commission in the case in hand.
16. In this regard Rule 70 of Rules 1992 empowers Bank to consult Central Vigilance Commission (hereinafter referred to 'CVC'). It reads as under:-
"70. The Bank shall consult the Central Vigilance Commission, wherever necessary, in respect of all disciplinary cases having vigilance angle."
17. Copy of opinion received from CVC, admittedly, was not supplied to petitioner by Disciplinary Authority before passing order of punishment impugned in present writ petition. However perusal of punishment order nowhere shows that disciplinary authority has relied or referred to or has acted in terms of opinion expressed by CVC. On the contrary, in respect of each charge or sub-charge, Disciplinary Authority has considered the matter, recorded its own findings and showing his agreement with findings of Inquiry Authority has found the charge/charges proved or partly proved. In the light of findings recorded by Disciplinary Authority, in para 3 of punishment order, it has recorded its view in respect of punishment.
18. It is in these circumstances, we now proceed to examine whether non supply of copy of opinion rendered by CVC would vitiate order of punishment or not.
19. In State Bank of India and Others vs. D. C. Agarwal and Another (1993) 1 SCC 13 an inquiry was conducted by CVC, but on the order of Court it appointed an IAS Officer of Tamil Nadu cadre as Inquiry Officer. Thirteen charges were levelled against Sri D. C. Agarwal. Inquiry Officer found charges I (1) and II (1) proved and rest not proved. He, therefore, recommended exoneration of D. C. Agarwal since charges found proved were minor and of procedural in nature. Bank directed Inquiry Officer to submit report through CVC though there was no such provision shown to the Court which permitted such proceeding. CVC after receiving inquiry report examined the matter on its own and recorded own findings on each charge and submitted its recommendation to Bank which was in 50 pages. CVC disagreed with Inquiry Officer and found charges I, II, III, IV, VIII, XI, XII and XIII proved and also advised for imposition of a major penalty not less than removal from service. Following advice given by CVC, Disciplinary Authority of Bank in the light of findings recorded by CVC, imposed punishment different than what was advised by CVC observing that quantum of punishment advised by CVC was too harsh. Departmental appeal against order of punishment failed, but in the High Court, learned Single Judge allowed writ petition of D. C. Agarwal holding that order of punishment was in violation of principles of natural justice, since report of CVC was not supplied to D. C. Agarwal which was the basis for order of punishment passed by Disciplinary Authority. Learned Single Judge also found punishment disproportionate to charges found proved. Intra Court Appeal preferred by Bank failed and that is how the matter came to Supreme Court. It upheld the view taken by High Court that Disciplinary Authority had relied on report of CVC, but did not supply the said document to employee concerned, therefore, it vitiates the proceedings and order of punishment. Therein also a defence was taken by Bank that Disciplinary Authority has recorded its own findings and therefore non supply of CVC recommendation would not vitiate the proceedings but Court found this factually incorrect. Court said as under:-
"Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the disciplinary authority. May be that the disciplinary authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the respondent without his knowledge or suplying of any copy to him the High Court in our opinion did not commit any error in quashing the order."
20. Supreme Court examined only question of effect of non supply of CVC recommendation and whether it would make order of punishment invalid and void on this ground alone.
21. In our view, aforesaid judgment would not help the petitioner for the reason that here, in the order of punishment, there is no reference to opinion of CVC at all. It is evident that Disciplinary Authority has not taken into consideration opinion of CVC for taking final decision in the matter. It has examined inquiry report and after recording its own views has passed order of punishment. Facts of this case, in our view are, more akin to a subsequent decision involving the same Bank i.e. State Bank of India and Others vs. S. N. Goyal (2008) 8 SCC 92 wherein also, S. N. Goyal, a Branch Manager of the Bank was issued a charge-sheet dated 28.04.1994. After completion of oral inquiry, inquiry report was submitted on 11.11.1994 holding charges proved against Sri S. N. Goyal. Copy of inquiry report was supplied to Sri S. N. Goyal by Disciplinary Authority. After considering inquiry report and representation of employee concerned, order of punishment of removal from service was passed on 03.05.1995. Appeal and revision both failed. These orders were challenged in a Suit. Trial Court found that proceedings were conducted by Disciplinary Authority who recommended punishment of reduction of pay by four stages in the time scale. This note was submitted by Disciplinary Authority on 18.01.1995 which was agreed initially by Appointing Authority. Thereafter Appointing Authority sought advise of CVC of Bank and on getting such advise, changed its earlier decision and imposed a higher punishment of 'Removal' from service on 03.05.1995. Trial Court held that this order was vitiated, since, opinion of CVC was obtained but not communicated to S. N. Goyal, hence it set aside the order of punishment. Bank's appeal failed before Additional District Judge and second appeal also failed in High Court. However while dismissing second appeal High Court observed that punishment of dismissal was imposed on the direction of CVC of Bank. Supreme Court in appeal found observation of High Court erroneous and held that High Court wrongly said that no substantial question of law was involved though in fact there were five substantial questions of law. Supreme Court quoted those questions in para 10 of judgment as under:-
"(i) Whether a direction by the Civil Court to reinstate the respondent, amounted to granting specific performance of a contract of personal service which is barred by section 14 of Specific Relief Act, 1963?
(ii) In the absence of a pleading that the order imposing penalty was invalid because the Appointing Authority acted on the advice or recommendation of the Chief Vigilance Officer, and in the absence of any issue in that behalf, could the Courts below hold that the order imposing punishment was illegal on that ground?
(iii) Whether an order recorded by the Appointing Authority on an office note, to impose the penalty of reduction in pay, which was neither pronounced, published or communicated, is a final decision which could not be reconsidered or altered, by the Appointing Authority?
(iv) Whether the decision of the Appointing Authority imposing penalty can be said to have been influenced by extraneous material, merely because the Chief Vigilance Officer of the Bank requested him to re-examine the proposed penalty ?
(v) Whether the Appointing Authority ought to have communicated the advice/recommendation of the Chief Vigilance Officer to the respondent and given him an opportunity to show cause before imposing punishment? "
22. For our purpose, findings of Supreme Court on question no. 4 and 5 would be relevant. These have been considered together by Supreme Court in the judgment from para 31 to 41 and it has observed that there was a correspondence between Appointing Authority and CVC, but order of punishment is not founded on the opinion of CVC. Findings of guilt recorded by Inquiry Officer were accepted by Disciplinary Authority as well as Appointing Authority. Issue relating to guilt of delinquent employee was neither referred to CVC nor CVC gave any finding on the question of guilt. Court in para 33 of judgment said:-
"............When the Disciplinary Authority and the Appointing Authority accepted the finding of guilt recorded by the Enquiry Officer on examining the facts, even before the matter was informed to Vigilance Department, it cannot be said that the said decision was influenced by any extraneous advice from Vigilance Department. The issue on which the Vigilance Department made its comment was on the limited ground whether any leniency should be shown in imposing punishment. No additional facts or material were placed by the Appointing Authority before the Vigilance Department for this purpose. Further the Vigilance Department merely expressed the view that the gravity of the charge did not warrant leniency and the authority should examine the matter. Therefore the assumption by the High Court that the Appointing Authority had placed some material not put to the respondent, before the Chief Vigilance Officer and that the Chief Vigilance Officer had issued any direction to the Appointing Authority on the basis of such material, is baseless. " (emphasis added)
23. Further with respect to opinion of CVC, Court in para 34 has said:-
"The disciplinary authority made available the enquiry report to the respondent to enable him to make his submissions on the findings of the Inquiry Officer. The respondent made his submissions in regard to the enquiry report. The correspondence between the appointing authority and the Chief Vigilance Officer of the Bank was not "material" on which the finding regarding guilt/misconduct was based. Such correspondence was subsequent to the enquiry report. There was no compulsion or requirement that the appointing authority should consult the Chief Vigilance Officer or act as per his recommendation or directions. Nor was there any direction by the Chief Vigilance Officer to impose any specific direction. Therefore non-furnishing of copies of the correspondence between the appointing authority and the Chief Vigilance Officer to the respondent did not violate the principles of natural justice nor vitiate the order of penalty."
(emphasis added)
24. Judgment in State Bank of India vs. D. C. Agarwal (Supra) was considered in para 37 of the judgment in State Bank of India & Others vs. S. N. Goyal (Supra) and discussing it, Court has said:-
" The next decision relied upon by the respondent is the decision rendered by this Court in SBI v. D.C. Aggarwal. In that case, the inquiry officer recommended exoneration of the employee. Instead of acting on the recommendation, the Bank directed the inquiry officer to submit the report through CVC. CVC disagreed with the finding of the Inquiry Officer and recorded a finding of guilt and recommended the imposition of major penalty of removal. A copy of CVC's recommendation was not furnished to the employee. The disciplinary authority acting on the recommendation of CVC and agreeing with CVC's finding of guilt, passed an order but imposed a punishment lesser than what was directed by CVC. This Court held that the order of the disciplinary authority imposing punishment was vitiated as it violate the principles of natural justice by denying the copy of the recommendation of CVC which was prepared behind his back. The said decision therefore related to CVC examining the facts of the case and arriving at a finding relating to guilt contrary to the finding of the inquiry officer and such finding being accepted by the disciplinary authority without giving opportunity to the employee to comment upon the CVC report finding him guilty. In this case as notice above, the inquiry report relating to guilt ws not referred for the opinion of the Vigilance Department at all. The Vigilance Department neither expressed any view in regard to the finding of guilt recorded by the inquiry officer nor did it reassess the evidence or arrive at a finding different from that of the inquiry officer. It merely opined that the case was not a fit one for showing leniency while imposing punishment and left it to the appointing authority to take its own decision in the matter. Therefore, this decision is also of no assistance." (emphasis added)
25. This judgment in State Bank of India vs. S. N. Goyal (supra) has further been followed in State Bank India and Others vs. Bidyut Kumar Mitra and Others (2011) 2 SCC 316 wherein also Court observed that Bank Authorities have not looked in the advice and recommendation of CVC for taking decision of punishment. Supreme Court also distinguished decision in State Bank of India vs. D. C. Agarwal (supra) in para 35 of the judgment in Bidyut Kumar Mitra (Supra) and said:-
(35)"In our opinion, the Division Bench has erroneously relied on the judgment in D.C. Aggarwal's case (supra). As rightly observed by the learned Single Judge, in that case this Court considered a situation where the Disciplinary Authority passed an elaborate order regarding findings against the Charge Sheet Officer agreeing on each charge on which CVC had found against him. In these circumstances, this Court observed that:-
"The order is vitiated not because of mechanical exercise of powers or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of sub-rule (5). But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry."
These observations would not be applicable in the facts of the present case as the Disciplinary Authority did not take into consideration any recommendations of the CVC. The judgment was, therefore, rightly distinguished by the learned Single Judge.
26. In our view, the exposition of law laid down in the above cases completely attracted in the case in hand also. We find that findings recorded by inquiry officer have been accepted by Disciplinary as well as Appointing Authority and without being influenced by opinion of CVC in any manner, the concerned Authority independently has passed order of punishment, hence, it cannot be said that non supply of opinion of CVC would vitiate the proceedings.
27. No other point has been argued.
28. Writ petition lacks merit. Dismissed. Interim order, stands vacated.
Order Date :- 13.11.2018 Swati