Karnataka High Court
Shivanna D Hulgur vs State Bank Of Mysore on 10 October, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.6677 OF 2010 (S-DE)
BETWEEN:
Shivanna D Hulgur
S/o Late D.S.Hulgur
Aged about 53 years
Earlier working as
Deputy Manager, An officer in
Middle Management Grade Scale-II
At State Bank of Mysuru
SSI Branch, Singasandra
Since illegally compulsorily
Retired from service and
Residing at No.90, 20th Main
2nd Cross, B.T.M. I Stage
Bengaluru - 560 068 ... Petitioner
(By Sri Shivanna D Hulgur, Party-In-Person)
AND:
State Bank of Mysore
A body constituted under
The State Bank of India
(Subsidiary Banks) Act, 1959
Head Office, K.G.Road
Bengaluru - 560 002 by its
Chief General Manager ... Respondent
(By Sri Puttige R Ramesh, Advocate)
2
This writ petition is filed under Article 226 of the
Constitution of India praying to quash the order dated
20.09.2007 (Under Annexure-L to the Writ Petition) passed
by the Disciplinary Authority and order dated 08.02.2008
(Under Annexure-P to the Writ Petition) passed by the
Appellate Authority by issue of a Writ in the nature of
Certiorari and direct the respondent / Bank to reinstate the
petitioner into its services forthwith with all consequential
benefits including grant of arrears of pay and allowance,
seniority, promotion as if he was never under any
disability, etc.
This petition coming on for dictating Orders this day,
the Court made the following
ORDER
The petitioner joined the services of respondent- Bank as a clerk on 15.01.1979 and he got promotion as Officer in Junior Management Grade Scale-I during December 1991 and thereafter as Manager in Middle Management Grade Scale-II in December 1997. He worked as Branch Manager at BTM Layout, Bengaluru for close to three years from 2000 to 2003. He worked as 3 Branch Manager at J.P.Nagar Branch, Bengaluru from 26.06.2003 to 12.06.2004 and thereafter from 16.06.2004 to 28.05.2005 he worked as Branch Manager at Anekal Branch. While he was serving as such, in the year 2005 he developed a Cardiac ailment, for which he was underwent open heart surgery and was not attended duty for nearly two years i.e., from October 2005 to August 2007.
2. The ailment of the petitioner was even suspected by some officers of the Bank, resulting in constitution of Medical Board, consisting of two doctors and the Board gave a certificate on 08.08.2007, certifying that the petitioner was working as officer at State Bank of Mysuru is suffering from severe aortic stenosis and advised to undergo a major open heart surgery for valve replacement. As he was found to be a diabetic hypersensitive, he was advised to undergo valve replacement surgery (Major open heart surgery) at the appropriate time depending on gradient of valve and control of sugar and BP, he has to be monitored evaluation 4 and probable angiogram in addition to regular treatment depending on his health condition. It was further certified that, the petitioner was under the treatment and observation and constant follow up from June 2005.
3. It is also stated that he has taken treatment at Jayadeva Institute of Cardiology had issued a certificate dated 30.09.2006 opined that the petitioner is suffering from Severe Aortic Stenosis and due to be operated (Major open heart surgery) for valve replacement at the appropriate time depending on gradient of valve and control of sugar and BP. On the basis of the above, the petitioner, party-in-person submits that from October 2005 till August 2007, he was under treatment and he underwent operation.
4. The respondent had issued a charge sheet dated 28.04.2006, which was not served on the petitioner, instead it was served at Anekal Branch, where he had ceased to be working as early as on 28.05.2005. He was 5 not informed about the framing of charges and calling for his explanation to the charge sheet and appointed an enquiry officer. The enquiry officer was appointed and proceedings were commenced with effect from 26.10.2006. It was not within the knowledge of the petitioner and he accidentally came to know about framing of charges which was issued and enquiry is in progress and immediately after noticing about the enquiry he went before the enquiry officer on 30.11.2006 and collected the charge sheet from the enquiry officer and participated in the enquiry. Though enquiry was commenced on 26.10.2006, he appeared before the enquiry officer for the first time on 30.11.2006.
5. The enquiry officer has submitted report with a finding that on evaluation of the evidence discussed, charges at Sl.Nos.1, 2 and 3 are partly proved. Against which he made a request to drop the proceedings. The disciplinary authority vide order dated 20.09.2007 had imposed punishment for "Compulsory Retirement from 6 service" on the charged official in terms of Regulation 67(h) of State Bank of Mysore (Officers') Service Regulations 1979. Against which, the petitioner preferred this petition, with a prayer to quash the disciplinary authority order dated 08.02.2008 and also for necessary directions in the facts and circumstances of the case.
6. The grounds taken up by the petitioner are that, lending is a commercial activity. Every commercial activity involves an element of risk and loss. In the instant case, there was no allegation of the petitioner bypassing any normal process involved in receiving the application, processing it, etc. and the applications for loan was processed collectively, since it is a collective act and the petitioner was not only made a scapegoat, but due to the fact that the Bank actually had no case against the petitioner could not have come up with clear charges against the petitioner. Since the recommendations for lending loan and acceptance etc., is a collective process, the respondent-Bank should have initiated enquiry 7 proceedings against the persons who all involved in sanctioning the loan. But, on the other hand, they picked and choose only the petitioner. Hence, the impugned action of the respondent is suffering from hostility. The charges are vague as it could be and non disclosure of list of documents and list of witnesses in the charge sheet which completely denied a reasonable opportunity to the petitioner.
7. He had further stated that in view of the vagueness of the charges, the petitioner was unable to know what is the case against him and what is sought to be made out by the Bank against him and therefore, he was not in a position to effectively prepare his defence.
8. The Regulations that govern disciplinary proceedings against an employee of the Bank are the State Bank of Mysore (Officers') Service Regulations, 1979 (now it is 'State Bank of India'). These Regulations are framed by the Central Board of Directors of State Bank of India in 8 exercise of powers conferred by Section 63 of the State Bank of India (Subsidiary Banks) Act, 1959. The penalties are divided into minor and major penalties under the regulations and in order to impose these penalties, procedure is laid down in Regulation 68. Regulation 68(2)(i) reads thus:
"No order imposing any of the major penalties specified in clauses (f), (g), (h), (i) and (j) of regulation 67 shall be made except after an enquiry is held in accordance with this sub- regulation."
Sub clause (iii) of Regulation 68(2) further reads thus:
"(iii) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite and distinct charges on the basis of the allegations against the officer and the articles of charge, together with a statement of the allegations, list of documents relied on along with copy of such documents and list of witnesses 9 along with the copy of statement of witnesses, if any, on which they are based shall be communicated in writing to the officer, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence."
9. When these Regulations are available before issuing the charge sheet, the respondent issued the charge sheet without looking into the Regulations. Hence, framing of charges itself is in total contravention of the Regulations under Section 68(2)(i) & (iii).
10. Further, as per Regulation 68(2)(xvii) which contemplates that after the officer closes his evidence and shall if the officer has not got himself examined as a witness, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer to explain any circumstances appearing in the evidence against him. This mandatory 10 provisions under the Regulations is given a go bye by the Inquiry Officer. Hence, on this ground also the finding of the Inquiry Officer and the punishment imposed there under needs to be set aside.
11. It is also submitted that the actions of the respondent in imposing punishment of compulsorily retirement from service is a discriminatory one. To substantiate the same, the petitioner submits that, even in respect of graver misconducts in the matter of housing loans, the Bank has never imposed any major penalty against any Branch Manager as could be seen in the following instances:
1. In the case of one Sri D.S.Nagesh, Branch Manager, Jayanagar 9th Block Branch, charged of granting loans on defective documents, penalty imposed on him on conclusion of disciplinary proceedings is stoppage of one increment or reduction in time scale by one increment.11
2. In the case of Mr. S.Mahesh, Branch Manager of Rajajinagar Branch, was charged for granting loans on forged documents, penalty imposed on him was censure.
3. Similar was the allegation against one Sri Ramaprasad, Branch Manager of CBAB Complex of the Bank at Bangalore, punishment was given only by warning without imposing any statutory penalty.
4. Similar was the charge against one Sri Sathyamurthy, Branch Manager of Annanagar at Chennai Branch and another Sri Dakshinamurthy, Branch Manager of K.K.Nagar Branch, Chennai. In the case of Sri Sathyamurthy, no statutory penalty was imposed and he was let off with a warning and in the case of Sri Dakshinamurthy, penalty imposed was stoppage of one increment or reduction in time scale by one stage.
5. Similarly, one Sri Kumaraswamy, Branch Manager of Chennai Main Branch of the Bank was charged of having granted 12 housing loan on fake documents, penalty imposed on him was censure.
12. When this is the approach of the respondent in case of some officers and not extended the same to the petitioner, when the charges against the petitioner are very lesser than that, imposing penalty of compulsory retirement is arbitrary one on the part of the respondent.
13. Against the order of punishment, the petitioner preferred a review petition on 09.05.2009 before the Reviewing Authority, viz., the Managing Director of the respondent-Bank. But the said petition has been considered by the Managing Director of State Bank of Bikaner and Jaipur, who has no relation to the affairs of the respondent-Bank, that too after issuance of notice at the hands of this Bikaner and Jaipur Branch. Hence, the order passed by the Reviewing Authority is completely vitiated.
14. On these grounds, petitioner submits that the petition is to be allowed and enquiry proceedings is to be 13 set aside and also imposing penalty of compulsory punishment is also to be set-aside.
15. The respondent-Bank filed statement of objections and it is contended that the charge sheet was duly served on the petitioner. Since he was on leave, charge sheet could not have been served on him through the Branch since he was on leave, and it was served through the Bank at Tumakuru, as he was resident of Tumakuru and he has completely participated in the enquiry proceedings. Sufficient opportunity was provided to the petitioner and it is further submitted that the ground taken by the petitioner that the recommendation was a collective decision has been denied and it is submitted that the petitioner was the Branch Manager of the Bank and the recommendation was made by him only. Hence, he was rightly charged for the said impugned action.
16. The Inquiry Officer was appointed on 22.09.2006 and notice was served through the Assistant 14 General Manager, Region-6, Tumakuru, informed the Enquiry Officer with the notice sent to the petitioner's residential address as the petitioner was on leave. Though he was duly served, he did not turn up to the enquiry, the Inquiry Officer was ready to go on with the matter. The enquiry officer deferred the matter to 22.11.2006 in order to facilitate the petitioner to appear before him. The prosecution witnesses who have been examined who have supported the case of the prosecution, but on considering the overall evidence and documents marked, the enquiry officer has given a report holding that the charges have been partly proved and the disciplinary authority has evaluated the enquiry officer's report independently and thereafter came to the conclusion that the petitioner is to be punished by imposing compulsory retirement, and there is no arbitrariness.
17. It is further submitted that, though the charges are partly proved and on the basis of the gravity of the offences, the disciplinary Authority has imposed the 15 punishment and it cannot be interfered by this Court. In support of his submission, learned counsel relied on the decision reported in 2006(2) SCC 255 between T.N.C.S.CORPN.LTD. AND OTHERES VS. K.MEERA BAI and drew my attention to Para 35 which reads thus:
35. In the instant case, the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in our opinion, the matter should be dealt with firmly with firm hands and not leniently. In the instant case, the respondent deals with public money and is engaged in financial transactions or acts in a fiduciary capacity and, therefore, highest degree of integrity and trustworthiness is a must and unexceptionable.
18. It is further submitted that the domestic enquiry is between the delinquent and employer and it cannot be viewed and evaluated as Criminal proceedings. The domestic proceedings itself is a principle of 16 preponderance of probabilities and the facts and circumstances on the basis of available documents and evidence of witnesses, and it was the basis for imposing punishment.
19. When the bank lost its trust on the employee and in the best interest of the institution, this punishment of compulsory retirement was imposed, there is no error in it and the impugned punishment order is justifiable.
20. In respect of consideration of review petition, it is submitted that the State Bank of Bikaner and Jaipur who is sister concerns, come under the control of State Bank of India. Hence, the review petition is rightly considered and disposed of. Therefore, there is no error in it. Hence, on these grounds learned counsel for the respondent sought for dismissal of the petition.
21. I have heard the parties.
22. Initially in the beginning stage, it is stated that the petitioner was out of his work, since he was suffering 17 from Cardiac ailment since from October 2005 to August 2007. Charge sheet was issued on 28.04.2006 that means to say, when the petitioner/officer was under treatment for the cardiac ailment, this charge sheet was issued, when he was not working as a Branch Manager. However, the charge sheet was addressed to Anekal Branch, which he left on 28.05.2005. It is presumed that the respondent Bank are well informed about the movement of its officer, since the sanctioning authority is only the Bank. Further it could be inferred that the petitioner having not served at Anekal Branch, but the charge sheet was addressed to the petitioner's address as Manager of Anekal Branch, which he had left on 28.05.2005. This shows that the respondent has hurriedly and without application of mind to process of issuance of charge sheet as per the Regulations and notice to the delinquent seeking his reply as to whether an enquiry is needed in the very matter. In the instant case, no such notice was issued. 18
23. Now for the purpose of better understanding, summary of the charges are required to be extracted.
CHARGE-I "In respect of the following 6 housing loan accounts considered as a single project and sanctioned by controlling authority based on your recommendation". Said six names are as under:
1. Shalini Ashok
2. M Suresh
3. Mini Annamma
4. J.Madan Kumar
5. D.T.Ethiraj
6. S.Jayaram
24. It is further referred that the petitioner had failed to check the credentials of the borrower/builders before considering/recommending housing loans and also to make a discreet enquiry about the builder who has been newly introduced to the Branch.
19
25. Similarly, charge-II is that "you have failed to notice the following discrepancies in respect of following borrowers already mentioned in charge-I and to take corrective measures".
CHARGE-III Is that, "without ascertaining credit worthiness you have sanctioned the following loan limits to Sri N.Sanjeev Nedungadi, who had introduced the developer of the above project mentioned in Charge-I. It transpires that this borrower is the brother of the developer, who had already having a housing Loan of Rs.14.75 lacs, which was irregular".
26. The petitioner has taken a ground in the writ petition that these charges are vague. In order to examine as to charges are vague, I have gone through the charges and it is found at Annexure-K i.e., charge-I it is in respect of 6 loan accounts. The numbers and particulars have not been provided and the charge sheet does not contain list of documents and list of witnesses. Be that as 20 it may, even if the charges are vague, if the petitioner understood the contents of the charge sheet, that is sufficient. On the other hand, the petitioner has stated in his petition that charges were vague and he could not understand the charges leveled against him and he could not participate in the Enquiry Proceedings by filing effective reply.
27. But, the petitioner had participated in the Inquiry proceedings and it was not his case that the Inquiry Officer has denied him in not granting any time or looking into the documents. In fact, the enquiry commenced from 26.10.2006 and it was concluded on 08.06.2007. He also engaged the service of his co- employee who defended the case. The Presenting Officer examined two witnesses who supported the case of the Bank. But the petitioner stated that they were not working with him at the relevant point of time and they were not having any access towards the transactions made by the petitioner.
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28. To prove the charges framed against the petitioner the Bank should have examined the persons who served along with the petitioner who were also responsible for the sanction of loan. But in the instant case, the prosecution witnesses who are not connected with the process of loan papers and they only supported the Bank by supplying the records for the purpose of marking documents. In these circumstances, it is to be noted that the Bank has not proved its case, by examining the witnesses who were working along with the petitioner.
29. The principles of preponderance of probabilities which does not have a strict rules of evidence is to be followed herein. Here the enquiry officer who recorded the evidence of prosecution witnesses, has opined that the petitioner has committed an irregularity in respect of the charges framed against him. It was case of the petitioner throughout that he recommended the case on the basis of the documents and materials which were produced to the bank, he had satisfied himself and thereafter 22 recommended the case for the Controlling Authority for the purpose of sanction of loan. It was not his decision what he did, but only the documents and materials which were collected by him were forwarded by him. Hence, he submits that he has not committed any irregularity.
30. Even before processing the loan papers as the particulars and other documents of these six persons were already available with the controlling authority, since on the earlier occasion they had raised loan in respect of same projects. When the controlling authority who is in possession of the papers of the borrowers, while granting loan at the first instance, it is presumed that the second time recommendations itself is only on the basis of the subsequent papers and loan repayment transaction which was forwarded. Hence, it is to be presumed that the petitioner has not committed any irregularity as it is alleged. Charges are that the recommendation made by this petitioner who made the controlling authority to sanction the loan. A plain reading of the charge sheet, the 23 petitioner has recommended the case and he did not appraise and he did not sanctioned the loan. The controlling authority who had sanctioned the loan and earlier also who had sanctioned the loan on the basis of the materials and documents on record which shows that the charges were issued which is part of mechanical way without there being any proper application of mind.
31. Charge II & III are also concerned with Charge-I. When the charge-I is vague which does not provide fullest information against the petitioner, remaining charge Nos.II and III are also to be stated as vague.
32. It is to be stated that the bank works in a collective manner. Its entire process of recommendations and granting loan etc., it is a collective act. If any irregularity is pointed out, it is to be on the basis of collective work and single person cannot be pin pointed and here the petitioner who was working along with the 24 staff such as Manager, Assistant Manager, including the staff and concerned workers, the papers were collected it was recommended for sanction of loan. Since, already the controlling authority had sanctioned the loan on the basis of the documents already furnished to them, for the loan purpose at an earlier occasion, the petitioner by satisfying himself with the subsequent documents, recommended for further loan. Under these circumstances, I hold that the framing of charges itself is only in a closed mind and the prosecution witnesses who have been examined, as it is stated that they were not worked along with the petitioner at the time of recommendation. Hence, they were not having any access to the loan transactions or even recommendations.
33. These were the defences taken by the petitioner during the enquiry and same was reiterated in the Review Petition filed by the petitioner before the Managing Director, which is under the Regulations, who is the appropriate authority to consider or re-consider the 25 Review Petition. But strangely, it was handed over to the Managing Director of State Bank of Bikaner and Jaipur, who had no connection with the loan transactions. The Reviewing authority has failed to consider the review petition in proper perspective and rejected the same.
34. It is contended by the petitioner, in the instant case, the State Bank of Bikaner and Jaipur has not handled the case of the petitioner and decided case of the petitioner in the Review Petition, which is contrary to the principles of rule of Law. What the law says is, when a Regulation is laid for the purpose, things to be done in a proper manner and in that manner only. In the instant case, reference of Review petition to the different Manager to consider the Review Petition is quite contrary to the Regulation. The Managing Director of the State Bank of Bikaner and Jaipur has considered the Review Petition which is impermissible under the Regulation. On this ground the punishment of compulsory retirement suffers and the petitioner is entitled to succeed. The finding of the 26 enquiry officer is that the charges I, II and III which are partly proved. But, he had not given any finding as to which portion of charges are partly proved and which part is not proved, when the charge is not similar and it cannot be bifurcated. On this ground also the enquiry report suffers and vitiates in the eye of law.
35. The learned counsel for the respondent referred to Regulation 68(3)(iii), which reads thus:
68(3)(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 67 should be imposed on the officer, 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 penalties specified in clauses (e),
(f), (g), (h), (i) & (j) of rule 67 and if it is lower in rank to the Appointing Authority in respect of the category of officers to which the officer belongs, it shall submit to the Appointing 27 Authority its recommendations regarding the penalty that may be imposed. Records of the enquiry specified in Clause (xxi) (b) of sub-rule (2), shall also be submitted to the Appointing Authority in respect of penalties to be imposed under clauses (f), (g), (h), (i) & (j) of rule 67. The Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate.
36. The charge is that the petitioner has committed a misconduct. The Regulation is very silent as to what is exactly the 'misconduct' is. In the circumstances, Hon'ble Supreme Court in (2007)4 SCC 566 in the case of INSPECTOR PREM CHAND VS. GOVT. OF NCT OF DELHI AND OTHERS held at para 10 as follows:
"10. In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus: 28 'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.29
The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of 30 a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR
698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied] 31
37. A sum and substance of the meaning of 'misconduct' arising from ill motive act. Mere negligence of the delinquent and innocent mistake cannot be termed as 'misconduct'. A negligent simplicitor is also not a misconduct. In the instant case, when it is examined, the recommendation of the six cases as referred in the charge sheet is a misconduct. But, as per the comparative meaning, it is a negligence simplicitor not a misconduct. In order to term it as a misconduct, the prosecution has to establish the ill motive and fraudulent intention on the part of the petitioner. These aspects have not been taken into consideration by the enquiry officer while submitting the report, which report is simply acted upon.
38. Again the Hon'ble Supreme Court in (2005)8 SCC 351 between M.M.MALHOTRA VS. UNION OF INDIA AND OTHERS at Para 17 it is held that:
"It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time, though 32 incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty".
at Para 20 it is held that:
"Similarly, in State of Punjab v. Ram Singh Ex.
Constable, it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong behavior, unlawful behavior, willful in character, forbidden act, a transgression of established and define rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character."
39. Hon'ble Supreme Court in (2004)5 SCC 689 in the case of NORATANMAL CHOURARIA VS.
M.R.MURLI AND ANOTHER at sub-para (6) of Para 10 held that:
"10(6) Thus it could be seen that the word 'misconduct' though not capable of precise of 33 definition, on reflection receives its conotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject- manner and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
It is further held that, this Court in Bar Council, Maharashtra V. M.V.Dabholkar [AIR 1976 SC 242] observed:-
34
"The high moral tone and the considerable public service the bar is associated with and its key role in the developmental and dispute- processing activities and, above all, in the building up of a just society and constitutional order has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline."
40. It is the contention of the petitioner that, recommending the case of the borrowers it is a collective decision of the entire bank, who processed the application in a collective manner and it is not the Branch Manager only, who has to recommend the case to the Controlling Authority and the Controlling Authority on the basis of the recommendations and independently examining the materials and etc., they can grant or they can reject the application.
41. Hence, right from the controlling authority, till the Branch Manager, it is collective action and it is not that the Branch Manager in recommending the case, then it 35 should not be made in the collective manner. In this regard, in (2007)7 SCC 206 of BONGAIGAON REFINERY & PETROCHEMICALS LTD., AND OTHERS VS. GIRISH CHANDRA SARMA it is held at Para 18 that:
18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone can be held responsible when the decision was taken by the committees. If the decision of the Committee stinks, it cannot be said that the respondent was alone stink, it will be arbitrary.
If all fish stink, pick one and say it stinks only is unfair in the matter of unanimous decision of the Committee.
42. In the light of the ratio laid down in the above decision case of the petitioner is examined. The 36 respondent has picked and chosen the petitioner and left the other persons, who collectively worked with the petitioner in processing and sanctioning the loan to such persons. It is to be held that the controlling authority who had sanctioned the loan to the following six persons at an earlier occasion, they were in possession of documents of these borrowers and for the subsequent time, the Branch Manager/petitioner has recommended the case for further sanction on the basis of the subsequent documents furnished to him. Hence, there is no ill motive or criminal intention to be found in recommending the case to the controlling authority. As per the judgment referred to supra, it is the respondent-bank has to pin point the persons exactly who all committed such act. But no such persons are found out, except the petitioner.
43. Similarly, the Hon'ble Supreme Court in (2009)8 SCC 617 of STATE OF MADHYA PRADESH VS. SHEETLA SAHAI AND OTHERS at para 49, held that: 37
"It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-
affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkarni who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made."
44. I have referred the said judgment for the reason that the respondent bank framed the charges against the petitioner for recommending the case of six persons, while doing so, they pick and choose only the 38 petitioner-Branch Manager, as if the Branch Manager is the head of the Branch and is responsible for everything.
45. Hon'ble Supreme Court said in the above judgment held that, "those who were one way or the other connected with the decision have not been proceeded at all. We fail to understand on what basis such a discrimination was made." Accordingly, it is said that action of the respondent against the petitioner is a discriminatory one.
46. The principles of preponderance of probabilities means to say that some probableness, it is sufficient to hold a person liable. The case of the respondent while framing the charge itself it is said, that the petitioner has recommended the case of six persons for the purpose of sanctioning loan. Assuming that the petitioner has recommended, but that itself cannot be an offence, since the respondent has not made out any case of his ill motive, criminal intention, fraud or forgery etc. As long as 39 it is not there, merely on the recommendations it cannot be presumed that the petitioner with an ill-motive and criminal intention, recommended the cases and hence, the same does constitute an offence.
47. Even assuming that the petitioner committed negligence, there is no finding in the report of the Enquiry Officer as held by the Hon'ble Supreme Court. It has been held that the negligent simplicitor is not an offence. Even ultimately the respondent bank has to decide whether the petitioner has lost trust in the institution. Hon'ble Supreme Court also held that in such an event the principles of disproportionate will come into picture. Therefore, I hold that the punishment imposed for compulsory retirement itself is disproportionate to the gravity of charges. Though in earlier decisions, it has acquitted the accused, but in respect of it, the Hon'ble Supreme Court said that though it is a ground, under the principles of preponderance of probabilities, any punishment can be imposed. Now, it seems that the 40 petitioner has already retired from service. At this stage no punishment can be imposed.
48. The petitioner seeks the enquiry report to be set aside, since as per Regulation 68(3), if there is a finding to the effect that the charges against the petitioner are proved. But, in the instant case, the charges are held to be partly proved i.e., in respect of charge Nos.I, II and III and it is not clear what part of it is proved.
49. Secondly, the Review Petition has been handled by a different officer, who is in no way connected with the transactions of the respondent-Bank, though it is a sister concern. The Reviewing Authority has rejected the Review Petition without properly appreciating the factual matrix of the case. Therefore, the order rejecting the review petition is not sustainable.
50. Thirdly, in view of the findings on the basis of the evidence of two officers, who have no access to the petitioner-Branch and that too those who have not worked 41 with the petitioner and participated in the transactions in question, their evidence cannot be taken into for the purpose of proving the case. Hence, imposing penalty of compulsory retirement from service is most arbitrary.
51. Since the petitioner was on sick leave for more than two years and he was subjected to appear before the Medical Board, without believing the version of the petitioner and the Medical Board has given an opinion that the petitioner was really suffering from severe aortic stenosis and advised him to undergo a major open heart surgery for valve replacement and second opinion was obtained from the Jayadeva Institute of Cardiology, they have also given an opinion that he has to undergo open heart surgery for valve replacement. This might have offended the respondent for submitting Charge sheet and framing of charges on the ground of misconduct. On perusal of the entire case, in order to consider the misconduct, the ingredients of which i.e., ill motive and criminal intention on the part of the petitioner are not 42 forthcoming in this case. In that view of the matter the petitioner has to succeed. Accordingly the petition is allowed.
Punishment order dated 20.09.2007 passed by the Disciplinary Authority and the order dated 08.02.2008 passed by the Appellate Authority are hereby quashed, directing the respondent to pay all the consequential service benefits with interest at 8% per annum.
The respondent shall also to pay medical expenses for which the petitioner was permitted to furnish medical particulars. Compliance of this order shall be within a period of eight weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE Kmv