Patna High Court
Siya Ram Ojha 'Azad' vs State Bank Of India & Ors on 8 March, 2011
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
CIVIL WRIT JURISDICTION CASE No.5716 OF 1997
--------
In the matter of an application under Article 226 of the Constitution
of India.
-------
1. Sona Devi, W/o late Siya Ram Ojha „Azad‟
2. Karun Kumar Ojha, son of late Siya Ram Ojha "Azad‟
3. Rahul Kumar Ojha, son of late Siya Ram Ojha „Azad‟
4. Shilpa Kumari, daughter of late Siya Ram Ojha „Azad‟
All resident of village Nawadih, P.S. Sandaur, District Bhojpur
-----Petitioners
Versus
1.The State Bank of India through its Chairman having its office at
Mumbai, Central Office, Madam Cama Road (Post Box No. 12)
Mumbai- 400021
2.Dy. Managing Director and Corporate Development Officer, State
Bank of India, Central Office, Mumbai
3.The Chief General Manager, Local Head Office, Patna Judges
Court Road, P.S. Pir Bahore, in the town & District of Patna
4.Sri R.R.Dutta, Middle Management Scale grade-3 Zonal Office
Muzaffarpur------------------------------------------------Respondents
-------
For the Petitioners : M/S Awadhesh Kr. Mishra, Arun Kr.Mandal, Advocates
For the Respondent Bank: M/S Kaushlendra Kr.Sinha, Sunil Kr.Singh,Advocates
--------
PRESENT
THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA
--------
R.K.Datta,J. Heard learned counsel for the petitioners and learned
counsel for the respondent State Bank of India.
2. The petitioners are aggrieved by the order of
dismissal from service passed by the Chief General
Manager, State Bank of India, Local Head Office, Patna by
his letter dated 20.6.1996 and also the appellate order dated
2
4.2.1997 passed by the Deputy Managing Director and
Corporate Development Officer (Appellate Authority).
3. The original petitioner was posted as Branch
Manager at Ranka Branch of the State Bank of India, in the
district of Palamau during which period he was placed
under suspension by order dated 22.9.1982 in
contemplation of departmental enquiry and charge memo
was served upon him on 23.2.1983. As many as 11 charges
were enumerated in the charge-sheet dated 23.2.1983,
which are as follows :
"I) That during your incumbency as Branch
Manager of our Ranka Branch from 28th
November, 1981 to 14th February, 1982, you
with mala fide intentions sanctioned &
disbursed loans under various segments
indiscriminately in utter disregard of the
Bank‟s laid down instructions. Assessment
and appraisal of loan proposals were not done
or done in a most perfunctory manner. In
many cases even loan application on the
prescribed forms were not taken no regard was
paid to business activity of the borrower their
credit worthiness. Advances were made
available to firms/persons outside the
operational area of Patna Circle. Loans have
also been disbursed on forged signatures to
certain persons who have subsequently denied
having taken any advance. Your
abovementioned acts have exposed the Bank
to a great financial loss. The grounds on which
this charge is based are given in Paragraph 1
of the annexure.
II) That during your said incumbency, you
sanctioned, and disbursed loans under DIR
scheme indiscriminately, sacrificing all norms
for making such advances and without taking
proper applications in many cases. (A few
advances were given to fake persons and in
3
some cases borrowers signatures have been
forged). The grounds on which this charge is
based are given in paragraph 2 of the
annexure.
III) While sanctioning and disbursing loans,
you did not care to take appropriate
documents. In certain cases income etc. and
irregular documents were taken exposing
serious threat to the security of Bank‟s money.
In some cases, documents were not even
taken. The grounds of this charge are given in
paragraph 3 of the annexure.
IV) No pre-sanction survey was done nor
follow-up/inspections of evidences were
carried out by you. Insurance was not taken
nor stock statements at a periodical interval
obtained from the borrowers. Still drawings
were allowed without regard to the availability
of sufficient stock. The grounds of this charge
are given in paragraph 4 of Annexure.
V) That in order to keep your controlling
authority in dark about your irregular
activities, no control return of advances
sanctioned under your discretionary power
was submitted by you, nor any performance
report, weekly abstract etc. were submitted.
You were so pre-occupied with your activity
of indiscriminate sanctioning of advances that
you allowed the writing of Branch Books to
fall into arrears. The grounds of this charge are
given in paragraph 5 of Annexure.
VI) That you took advance from Suspense
Account at various Branches on account of
your transfer or deputation, but no bills were
submitted for adjusting the entries in the
Suspense Account violating laid down
instructions in this respect. A list of such
advances taken by you is given in paragraph 6
of Annexure.
VII) You have allegedly demanded and
accepted illegal gratification in consideration
of your sanctioning advances during the
aforesaid period certain deposits/remittances
made in your/your mother‟s account are
beyond your known sources of income. Some
deposits into your account have been made by
a borrower and in one case it was by one Shri
Raj Kr.Ojha, altered to read as Raj Kr. Ram
4
under your authentication. The details of these
deposits are given in the Annexure. The
amount of deposits and remittances indicate
misuse of your official position for your
personal pecuniary gain and to detriment of
Bank‟s interest. The grounds of this charge are
given in paragraph 7 of the Annexure.
VIII) That during your abovementioned
incumbency, certain security forms were
found missing from the Branch a list of which
is given in paragraph 8 of the annexure.
IX) That you knowingly let outsiders have
access to the Bank‟s records and also allowed
a Bank‟s guard and borrowers to write the
Branch Manager‟s scroll. Grounds of this
charge are given in paragraph 9 of the
Annexure.
X) That during your aforesaid incumbency,
you negotiated at Ranka Branch a cheque for
Rs.1000/- on 24.12.1981 drawn on Daltonganj
Bazar Branch, but did not dispatch the cheque
immediately and held it in your drawer. Again
a cheque for Rs.1000/- dated the 2nd February
1982 drawn on your saving Bank Account at
Ranka Branch and negotiated by you at
Garhwa Branch was received at Ranka for
realization which along with the relative list
was not put through by you but was found in
your drawer by your successor. Another
Demand Draft purchased by you on 21.7.82
for Rs.990/- at Arrah Branch on Ranka Branch
was returned unpaid (on 27.7.82) as there was
insufficient balance in your account at Ranka
Branch as on that date.
XI) By your abovementioned acts of omission
and commission, you have failed to discharge
your duties with utmost honesty, integrity,
diligence and devotion as required under Rule
32(4) of State Bank of India (Supervising
Staff) Service Rules."
All the charges relate to the period from 28th November,
1981 to 14th February, 1982 in the departmental
proceedings. In the departmental proceedings as many as 61
documents with many enclosures were submitted on behalf
5
of the employer and four witnesses were also examined.
Finally the Enquiry Officer submitted his report dated
14.5.1994 holding that Charge Nos.1.2, 1.3, 1.5 to 1.7, 3 to
9 and 11 were proved; whereas Charge Nos. 1.1, 1.4, 2 and
10 were partly proved. The disciplinary authority by his
order dated 21.6.1996 on the basis of the enquiry report
came to the conclusion that the gravity of the misconduct
committed by the original petitioner established lack of
integrity on his part and thus his continuance in the Bank‟s
service was considered prejudicial to its interest and
therefore inflicted the penalty of dismissal from Bank‟s
service in terms of Rule 67(h) of State Bank of India
Officers‟ Service Rules, apart from holding that he would
not be entitled for salary and allowances, increments and
other benefits for the period of suspension which shall not
be counted as duty and directed for the forfeiture of whole
amount of gratuity payable under the Payment of Gratuity
Act. The appeal filed by the original petitioner against the
said order was also dismissed by the appellate authority by
his order dated 4.2.1997. Aggrieved by the same, the
original petitioner had filed the present writ petition.
4. Learned counsel for the petitioners submits that the
departmental proceedings had continued for 14 years
although the proceedings had not been stayed and thus the
6
order passed in such departmental proceedings ought to be
set aside.
5. Further contention of learned counsel is that the
findings of the Enquiry Officer, the Disciplinary Authority
and the Appellate Authority are perverse because each
article of the charge has not been discussed by them while
arriving at the conclusion that the charge in question has
been proved.
6. It is also the contention of learned counsel that the
contents of the exhibits are not automatically proved unless
the same are proved by the relevant witnesses and for which
purpose each and every loanee should have been examined
and the same not having been done the said contents cannot
be looked into.
7. It is also urged by learned counsel that there has not
been any compliance of principles of natural justice as the
orders in question are not reasoned or speaking orders.
8. It is lastly submitted by learned counsel that the
misconduct relating essentially to irregularity in the
sanction of loan should be seen in the context of the fact
that it was the first posting of the original petitioner as
Branch Manager and there was shortage of hands in the
Branch, which coupled with the fact that the original
petitioner had 26 years of unblemished service, hence the
7
punishment of dismissal is disproportionate to the
misconduct; more so because the petitioner is already dead
and his widow is living without any family pension, so
lenient view ought to be taken.
9. In support of the aforesaid proposition learned
counsel relies upon various decisions. The first case is
Kuldeep Singh vs. The Commissioner of Police and others :
AIR 1999 SC 677 in paragraph-27 of which it has been held
as follows :
"27. This Rule, which lays down the procedure
to be followed in the departmental enquiry,
itself postulates examination of all the witness
in the presence of the accused who is also to be
given an opportunity to cross-examine them. In
case, the presence of any witness cannot be
procured without undue delay, inconvenience
or expense, his previous statement could be
brought on record subject to the condition that
the previous statement was recorded and
attested by a police officer superior in rank
than the delinquent. If such statement was
recorded by the Magistrate and attested by him
then also it could be brought on record. The
further requirement is that the statement either
should have been signed by the person
concerned, namely, the person who has made
that statement, or it was recorded during an
investigation or a judicial enquiry or trial. The
Rule further provides that unsigned statement
shall be brought on record only through the
process of examining the Officer or the
Magistrate who had earlier recorded the
statement of the witness whose presence could
not be procured."
10. Learned counsel also relies upon a decision of the
Apex Court in the case of Hardwari Lal vs. State of U.P.
8
and others : AIR 2000 SC 277 in paragraph-3 of which it
has been observed as follows :
"3. Before us the sole ground urged is as to the
non-observance of the principles of natural
justice is not examining the complainant, Shri
Virender Singh, and witness, Jagdish Ram. The
Tribunal as well as the High Court have
brushed aside the grievance made by the
appellant that the non-examination of those two
persons has prejudiced his case. Examination of
these two witnesses would have revealed as to
whether the complaint made by Virender Singh
was correct or not and to establish that he was
the best person to speak to its veracity. So also,
Jagdish Ram, who had accompanied the
appellant to the hospital for medical
examination, would have been an important
witness to prove the state or the condition of
the appellant. We do not think the Tribunal and
the High Court were justified in thinking that
non-examination of these two persons could not
be material. In these circumstances, we are of
the view that the High Court and the Tribunal
erred in not attaching importance to this
contention of the appellant."
11. Another case cited by learned counsel is State of
H.P. vs. Sada Ram & Anr. : AIR 2009 SC (Supp) 302(2) in
paragraphs 2 & 3 of which it has been observed as follows :
"2. The High Court, while dismissing the
petition, passed the following orders :-
"CMP No. 224 of 2006
Heard. We do not see any reason to interfere
with the judgment of the Tribunal. The petition
is dismissed.
CMP No. 332 of 2006
In view of the order passed in the main matter,
this application shall also stand dismissed."
3. In our view, the High Court, while
disposing of the writ application, ought to have
at least given some reasons for dismissing the
same and ought to have passed a speaking and
a reasoned order. Such being the position and
9
without going into the merits of the writ
petition, we set aside the impugned order and
restore the writ petition and request the High
Court to decide the writ petition afresh on
merits."
12. He further relies upon a decision of the Punjab and
Haryana High Court in the case of Ex. H.C.Hari Krishan
vs. State of Haryana and others :2000(1) SLR 32 for the
proposition that the order of dismissal not discussing the
length of service and claim of the petitioner with regard to
his pension is not proper.
13. Learned counsel also cites a judgment of this Court
dated 15.7.1988 passed in C.W.J.C.No.956 of 1988 (Shri
Brajendra Nath Tripathy alias B.N.Tripathy vs. The State
Bank of India & others), in paragraph-8 of which it has
been held as follows :
"8. It was rightly contended on behalf of the
petitioner that the Enquiry Officer violated the
provisions of the Rules contained in Rule
50(1) (XXX) (a) (3 and 4). The full
assessment of evidence in respect of each
articles of charges and the findings on each
article of charges with the reasoning of the
Enquiry Officer is not borne out from the
report of the Enquiry Officer. It is obvious that
the procedure was not followed by the Enquiry
Officer while conducting the departmental
enquiry. There is no assessment of evidence
on each specific charges and the findings have
not been recorded on each such charges. The
Enquiry Officer has not recorded his reasoning
on each one of these charges."
14. Learned counsel for the State Bank, on the other
hand, submits that almost all the charges against the
10
original petitioner have been found proved and the rest have
been found partly proved by the Enquiry Officer. It is urged
by learned counsel that on a perusal of the different charges
it is evident that each of the charges constitutes a gross
misconduct and even if any one of them had been proved
the only punishment that could be awarded is of dismissal.
15. It is also the contention of learned counsel for the
respondent Bank that contrary to the submission of learned
counsel for the petitioner the Enquiry Officer has
considered each and every article and sub-article of charge
separately and given his findings upon the same by a
detailed enquiry report running into 23 pages and thus there
is no substance in the submission that there is no finding on
each article of charge. It is also the contention of learned
counsel that the disciplinary authority and the appellate
authority having agreed with the findings of the Enquiry
Officer they are not required to again discuss each of the
articles of charge and the evidence separately.
16. It is further urged by learned counsel that the
provisions of Evidence Act do not automatically apply to
the departmental proceedings. In support of his contention
he relies upon a decision of a Division Bench of this Court
in the case of Chandra Prabha Srivastava vs. The State
Bank of India through its Chairman & Ors. : 2010(4) BBCJ
11
V-71, in paragraph-11 of which it has been laid down as
follows :
"11. That would bring us to the submission of
learned counsel for the appellants with regard
to the procedural infirmity in an ex parte
departmental proceeding. The main attack in
this regard is that the documents were not
formally proved by examining any witness in
course of ex-parte departmental enquiry. Such
submission again has to be noted only for its
being rejected, inasmuch as, there is no
requirement of proving the documents
adhering to the principles of Evidence Act
which is not ipso facto to be made applicable
in a departmental proceedings, unless there is
a serious challenge to authenticity of a
document.xxxxxxxxxxxx"
17. It is the further contention of learned counsel that a
wrong statement has been made on behalf of the original
petitioner that it was his first posting as Branch Manager
whereas it is evident from the statement made in the counter
affidavit that the original petitioner had earlier functioned
as Branch Manager in two separate branches for the period
of more than one year and thus no such plea could be taken
by him. Moreover, even in the case of first posting it is not
expected from the Branch Manager to act in a reckless
manner in sanction of loans as the original petitioner had
done. He could have always obtained advice from his
superior officers.
18. It is lastly submitted by learned counsel for the
respondent Bank that service in a Bank requires a higher
12
degree of rectitude than that of other organizations as Banks
deal with public money and thus in case of laches or
misconduct on the part of Bank officers a very severe
punishment is required to be meted out.
19. In support of the aforesaid proposition, learned
counsel relies upon several decisions of the Apex Court. In
the case of State Bank of India and others vs. S.N.Goyal :
(2008) 8 SCC 92 it was observed in paragraph-41 as
follows :
"41. At the relevant point of time the
respondent was functioning as a Branch
Manager. A bank survives on the trust of its
clientele and constituents. The position of the
Manager of a bank is a matter of great trust.
The employees of the bank in particular the
Manager are expected to act with absolute
integrity and honesty in handling the funds of
the customers/borrowers of the bank. Any
misappropriation, even temporary, of the
funds of the bank or its customers/borrowers
constitutes a serious misconduct, inviting
severe punishment. When a borrower makes
any payment towards a loan, the Manager of
the bank receiving such amount is required to
credit it immediately to the borrower‟s
account. If the matter is to be viewed lightly or
leniently it will encourage other bank
employees to indulge in such activities thereby
undermining the entire banking system. The
request for reducing the punishment is
misconceived and rejected."
Similarly in the case of State Bank of India and Anr. Vs.
Bela Bagchi and Ors. : 2005(6) Supreme 87 the following
observations were made in paragraph 15 of the judgment :
13
"15. A Bank officer is required to exercise
higher standards of honesty and integrity. He
deals with money of the depositors and the
customers. Every officer/employee of the
Bank is required to take all possible steps to
protect the interests of the Bank and to
discharge his duties with utmost integrity,
honesty, devotion and diligence and to do
nothing which is unbecoming of a Bank
officer. Good conduct and discipline are
inseparable from the functioning of every
officer/employee of the Bank. As was
observed by this Court in Disciplinary
Authority-cum-Regional Manager vs. Nikunja
Bihari Patnaik (1996(9) SCC 69), it is no
defence available to say that there was no loss
or profit resulted in case, when the
officer/employee acted without authority. The
very discipline of an organization more
particularly a Bank is dependent upon each of
its officers and officers acting and operating
within their allotted sphere. Acting beyond
one‟s authority is by itself a breach of
discipline and is a misconduct. The charges
against the employee were not casual in nature
and were serious. That being so, the plea about
absence of loss is also sans substance."
To the similar effect are the observations in the case of Tara
Chand Vyas vs. Chairman & Disciplinary Authority and
others : (1997) 4 SCC 565. In paragraph-2 of the said
judgment it has been further held as follows :
"2. Economic empowerment is a fundamental
right of the weaker sections of the people, in
particular in Scheduled Castes and Scheduled
Tribes, ensured under Article 46 as a part of
social and economic justice envisaged in the
Preamble of the Constitution; the State is
enjoined to promote their welfare effectuated
under Article 38. Distribution of material
resources to elongate that purpose envisaged in
Article 39(b) is the means for the development
of the weaker sections. The banking business
14
and services were nationalized to achieve the
above objects. The nationalized banks, therefore,
are the prime sources and pillars for
establishment of socio-economic justice for the
weaker sections. The employees and officers
working in the banks are not merely the trustees
of the society, but also bear responsibility and
owe duty to the society for effectuation of socio-
economic empowerment. Their acts and conduct
should be in discharge of that constitutional
objective and if they derelict in the performance
of their duty, it impinges upon the enforcement
of the constitutional philosophy, objective and
the goals under the rule of law. Corruption has
taken deep roots among the sections of the
society and the employees holding public office
or responsibility equally became amenable to
corrupt conduct in the discharge of their official
duty for illegal gratification. The banking
business and services are also vitally affected by
catastrophic corruption. Disciplinary measures
should, therefore, aim to eradicate the corrupt
proclivity of conduct on the part of the
employees/officers in the public offices
including those in banks. It would, therefore, be
necessary to consider, from this perspective, the
need for disciplinary action to eradicate
corruption to properly channelise the use of the
public funds, the live wire for effectuation of
socio-economic justice in order to achieve the
constitutional goals set down in the Preamble
and to see that the corrupt conduct of the officers
does not degenerate the efficiency of service
leading to denationalization of the banking
system. What is more, the nationalization of the
banking service was done in the public interest.
Every employee/officer in the bank should strive
to see that banking operations or services are
rendered in the best interest of the system and
the society so as to effectuate the object of
nationalization. Any conduct that damages,
destroys, defeats or tends to defeat the said
purposes resultantly defeats or tends to defeat
the constitutional objectives which can be meted
out with disciplinary action in accordance with
rules lest rectitude in public service is lost and
service becomes a means and source of unjust
enrichment at the cost of the society."
15
20. Having considered the rival submissions of learned
counsel for the parties, this Court does not find any force in the
submission of learned counsel for the petitioner. The
submission that no findings have been recorded on each and
every article of charge is not at all borne out by the detailed
enquiry report in which each article and sub-article of charge
has been separately dealt with on the basis of the evidence
brought on the record. So far as the disciplinary authority is
concerned, it is not expected from the disciplinary authority to
again repeat the finding that has already been recorded by the
enquiry officer. If he is in agreement with the same it is
required to be seen as to whether there has been application of
mind by the disciplinary authority to the material on the record.
From the order passed by the disciplinary authority I do not
find any non-application of mind on his part as he has
concurred with the findings of the enquiry officer.
21. Similarly the order of the appellate authority clearly
shows that he has considered the contentions raised by the
petitioner and also given his reasons with regard to his coming
to the findings and not accepting the contention of the
petitioner. The order being one of the affirmation it is not
expected from the appellate authority to again discuss each and
16
every charge. The appellate order also does not suffer from any
non-application of mind.
22. So far as the contention of learned counsel for the
petitioners that contents of the exhibits are not automatically
proved unless proved by relevant witnesses is concerned, the
same is against the provisions of the Evidence Act. It is clear
from the provisions of Sections 61 to 64 of the Evidence Act
that contents of a document must be proved by primary
evidence except in the cases indicated therein, when secondary
evidence may be led with regard to the documents produced
for the inspection of the court in which circumstances oral
evidence is required to prove the contents of the documents.
23. That being the legal position, there is no requirement of
separate proof of the contents of the document by leading oral
evidence with regard to it. In any view of the matter, the
technical rules of Evidence do not apply in the departmental
proceedings.
24. The reliance of learned counsel for the petitioners on the
decisions cited by him appears to be wholly misconceived in
the facts and circumstances of the present case. The question of
examining each and every loanee does not arise in the present
matter as the facts to be proved are dependent upon the
documents which are maintained in the Branch itself. The
present case is not one that allegations have been made
17
regarding abuse, etc. by some person which requires to be
proved on the basis of oral evidence. Considering the nature of
the charges the said facts can be more reliably proved on the
basis of the documents available with the Bank. It is not the
case of the petitioner that the said documents have been
withheld from him in the present matter.
25. Lastly it has to be kept in mind that the original
petitioner was an officer of the Bank holding responsible
position and it is expected from him to act with utmost
integrity in the performance of his duties in the Bank. The
charges enumerated above go to show that the laches on his
part were of serious nature and for such misconduct the only
punishment that can be awarded is dismissal from service.
Thus, there can be no question of taking a lenient view in the
matter. The question of his first posting is wholly irrelevant in
such circumstances and factually also the said contention has
no legs to stand upon.
26. Thus, on a consideration of the entire facts and
circumstances, as discussed above, I do not find any merit in
the writ petition. It is, accordingly, dismissed.
(Ramesh Kumar Datta,J.)
Patna High Court
Dated 8th March, 2011
Spal/ N.A.F.R.