Jharkhand High Court
Shyam Nandan Prasad vs State Bank Of India Through The Chief ... on 12 February, 2015
Equivalent citations: 2015 (2) AJR 420
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2348 of 2010
Shyam Nandan Prasad, Son of Late Rajeshwari Prasad,
resident of Suresh Colony, Hazaribagh,
P.O. & P.S. Hazaribagh, Dist. Hazaribagh ...... Petitioner
Versus
1. The State Bank of India through the Chief General Manager,
Jagdish Chandra Road, Pirbahore, Patna
2. The Chief General Manager, State Bank of India,
Jagdish Chandra Road, Pirbahore, Patna
3. The General Manager (D & PB), State Bank of India,
Jagdish Chandra Road, Pirbahore, Patna
3. The Branch Manager, State Bank of India, Singhrawan,
P.S. Choparan, Haharibagh ......Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : M/s Saurav Arun,
& Krishna Shankar, Advocates
For the S.B.I. : Mr. Rajesh Kumar
-------
04/Dated:12/02/2015
Petitioner has challenged the order as contained in memo no. 572
dated 06.03.1999 passed by General Manager (D & PB), the respondent no. 3 by
which the petitioner has been removed from service in exercise of power
conferred under Rule 67(i) of State Bank of India Officers Service Rules.
Further prayer has been made for quashing order of the appellate authority dated
06.10.1999, by which the appeal preferred by the petitioner has been rejected. Further direction has been sought commanding upon the respondent to pay all consequential benefits like arrears of salary etc., after reinstating the petitioner.
2. Heard the parties and perused the documents on record.
3. It has been submitted on behalf of the petitioner that initially, petitioner was appointed as Clerk Cum Typist in the year, 1972. He was promoted in Junior Manager Scale Grade-I in the year 1979. The petitioner, if treated on duty, was to retire on 30.07.2010.
The petitioner while was posted as Junior Manager Scale Grade- I, he was put under suspension vide order no. 580 dated 17.07.1992., on the basis of written information given by the Branch Manager, State Bank of India, Singhrawan, P.S. Choparan, Dist. Hazaribagh, one F.I.R. was instituted on 03.12.1992 for the offence under sections 409/420/467/468 of the Indian Penal Code, alleging therein that during his posting at Singhrawan Branch from 1988 to June, 1992, various irregularities had been committed by the petitioner.
-2-4. A memo of charge along with imputation of allegations had been served upon the petitioner vide memo issued in this regard on 03.06.1994 asking the petitioner to reply giving show cause as to why the disciplinary action be not taken against him for various irregularities committed by him while he was posted at Singhrawan Branch as Bank Manager. Petitioner submitted his reply before the disciplinary authority who being unsatisfied with reply of the petitioner passed the order of punishment on 06.03.1999 for removal from service in terms of Rule 67(i) of State Bank of India Officers Service Rules.
5. Petitioner, thereafter, preferred an appeal against the order dated 06.03.1999 before the appellate authority but the same has also been rejected vide memo dated 06.10.1999
6. However, criminal case instituted against the petitioner ultimately ended in acquittal. Petitioner after acquittal in criminal case has filed representation before the competent authority for recall of the order of dismissal.
Grounds on which the order of termination has been assailed are:
(i) the order of removal is too harsh because the bank has not sustained any financial loss;
(ii) a criminal case has been instituted against petitioner for the same set of allegation in which the petitioner has been acquitted;
(iii) the appellate order passed by the appellate authority is cryptic and non-speaking Hence the order of removal needs to be recalled by the authorities.
7. Learned counsel for the respondent-Bank although has been directed to file counter affidavit vide order dated 30.07.2010 but no counter affidavit has been filed.
8. On the other hand during course of hearing, the learned counsel for the respondent-Bank has stated that he did not intend to file any counter affidavit, argued the case on the basis of material available on record and has submitted that the petitioner was holding the post of Branch Manager at Singhrawan Branch of State Bank of India and has committed serious irregularities which is a gross misconduct.
The petitioner being an officer of the Bank, is not expected to discharge his duty in such a way. He submitted that a bank officer is required to exercise higher standard of honesty and integrity. Good conduct and discipline are inseparable from the functioning of every officer of Bank. Further -3- submission is that while considering the nature of allegation, the Enquiry Officer has found the charges proved against him after providing adequate opportunity of being heard to the petitioner, the disciplinary authority has accepted the finding of the Enquiry Officer, coming to conclusion that petitioner is not fit to be retained in service. Hence, the order of removal from service has been passed due to reason that the petitioner failed to perform his duty with honesty, integrity, devotion, and dedication in violation of Rule 50(4) of the State Bank of India Officers Services Rule.
9. It has further been submitted that the petitioner preferred an appeal before appellate authority but in the memo of appeal, nothing has been stated regarding his defence with respect to irregularities committed by him rather only memo of appeal has been filed by way of mercy appeal. The appellate authority after taking into consideration the findings given by the Conducting Officer and Disciplinary Authority has come to conclusion that there is no infirmity in the order passed by the disciplinary authority.
10. It has further been submitted that the petitioner however has been acquitted from the criminal charge but that cannot be said to be acquittal on merit because other witnesses have not been examined as would be apparent from the judgment of acquittal annexed with the writ petition.
11. After hearing the parties at length, for adjudicating the issue, it is important to discuss the nature of allegation leveled against the petitioner. The nature of allegation is being stated herein below:
"(i) You availed 4 (four) demand loans aggregating Rs. 41,000/-
without getting them sanctioned by the competent authority prior or post facto approval of the controlling office was not obtained details of such accounts are given in Annexure-1.
(ii) On the date of sanction / disbursement of above loans there was shortage of securities (NSCs.) aggregating Rs. 5,000/- in Demand Loan A/c Nos. 3/68 & 3/99. This shortfall was compensated by you with NSCs. Of later date, but you failed to get them endorsed in favour of the Bank and registered with the Post Office.
(iii) You were sanctioned a demand loan of Rs. 36,000/- on 07.12.91 by your controlling office against sufficient value of National Saving Certificate (s) under Bank's usual term and condition, but you availed of the loan without lodging sufficient security. NSCs. Aggregating Rs. 11,000/- only were lodged by you. You also failed to get them endorsed in favour of Bank and registered with the Post Office. To suppress this fraud you recorded the numbers of a few such NSCs. in safe custody ledger which were already pledged against D.L. A/c NOs. 3/68, 3/80 and -4- 3/101. Further to defraud the Bank you recorded the numbers of some more take NSCs.in Demand Loan Ledger without taking them in possession of the branch.
(iv) You sanctioned and disbursed Demand Loan of Rs. 16,000/- to Shri Lalan Prasad on 06.06.92 without obtaining any securities although it was supposed to be backed by NSCs. The amount of loan was disbursed in the following manner without seeking any mandate from Shri Prasad in this regard.
D.L.A/C. NAME OF THE DATE OF AMOUNT OF MODE OF
NO. BORROWER SANCTION LOAN (RS) DISBURSEMENT
411 SHRI LALAN PRASAD 06.06.92 16,000/- (i) Draft No.
633969 dated
06.06.92 for Rs.
6,000/- drawn
on Hazaribagh
Branch favouring
Shri S.N. Prasad.
(ii) Draft No.
584599 dated
06.06.92 for
Rs. 10,000/-
drawn on
Ranchi Branch
favouring Shri
R.K. Sahay.
(v) You sanctioned a Demand Loan of Rs. 12,000/- to Shri R.K. Sahay on 30.05.92 wothout obtaining any security although it was supposed to be backed by NSCs. Further, the amount of loan was disbursed to Shri Sahay by way of draft drawn on Ranchi Branch free of charge.
(vi) You sanctioned a fake demand loan for Rs. 25,000/- on 22.11.90 to smt. Tara Devi Jain against the deposit in her R.D. A/c No. 395. The amount of loan was fraudulently misappropriated by you by getting the documents executed by a fake person, when the matter was brought on the surface, you arranged for liquidation of the loan account by means of a mail transfer from Hazaribagh Branch .
(vii) You have fraudulently issued a draft for Rs. 28,000/- in your favour drawn on Hazarubagh Branch by debit to a joint S.B. A/c No. 00088 of Shri Lal Deo Singh and Smt. Radhika Devi on 28.11.90, although according to draft voucher register the draft to be issued in favour of Shri Lal Deo Singh.
(viii) You have fraudulently issued a draft for Rs. 3,000/- in favour of M/s Auto Spares drawn on Hazaribagh Branch by raising a debit entry of Rs. 3,000/- on 12.2.91 in the S.B. A/c No. 00088 of Shri Lal Deo Singh and Smt. Radhika Devi and in order to conceal the fraud you destroyed relative debit & credit vouchers.
(ix) You have fraudulently originated & debit entry on 9.7.91 for Rs. 6,000/- on Patna Main Branch quoting an imaginary number of Income Tax Refund Orders Nos. 063350 & 063351 and proceeds of the said imaginary Income Tax Refund Orders were -5- remitted through two Bank Drafts bearing Nos. 0633592 and 0633593 both dated 09.07.91 for Rs. 3,000/- each favouring I.T.O. Hazaribagh payable on State Bank of India, Hazaribagh Branch with ulterior motive.
(x) On 22.06.91, you originated a debit entry of Rs. 5,000/- on Hazaribagh Branch quoting an imaginary number of Government cheque in the debit voucher and fraudulently issued a draft bearing no. 0633529 dated 22.06.91 for Rs. 5,000/- in favour of M/s Mahabir Tyres, Hazaribagh, ostensibly with ulterior motive.
(xi) You have sanctioned and disbursed loans under D.I.R. scheme to the under noted persons who are not traceable. Reminders sent by your successor Branch Manager for repayment of loan were returned undelivered.
NAME OF THE BORROWER AMOUNT OF LOAN SANCTION DATE OF SANCTION
1. Shri Prayag Ram Rs. 5,000.00 02.05.89
2. Shri Arjun Ram Rs. 3,000.00 23.05.89
3. Md. Mobin Ansari Rs. 3,285.50 18.05.90
4. Md. Mumtaz Rs. 5,000.00 05.03.91
(xii) The undernoted four demand draft were purchased by you on Hazaribagh Branch on different date. But the instruments (S.B. Cheque) issued by Shri R. Prasad, (now deceased) who happens to be your father did not reach the destination because lists were sent without enclosures as as result of which D.Ds. Were returned unpaid by Hazaribagh Branch.
SL. No. D.D. No. DATE OF PURCHASE AMOUNT
1. 49 16.04.90 Rs. 2000/-
2. 56 12.05.90 Rs. 1,000/-
3. 57 04.06.90 Rs. 1,000/-
4. 64 28.8.90 Rs. 300/-
(xiii) On 08.02.91, you have made excess payment to the tune of Rs. 6,000/- to Shri Arjun Ram legal heir to the estate of Late Kishun Ram on account of pre maturity payment of STDR No. 535049 or Rs. 16,000/- dated 12.07.88 due for maturity on 12.07.93. The respect of recovery of the said amount appears to be bleak."
12. From scrutinizing of allegations it is apparent that the petitioner has availed four demand loans aggregating Rs. 41, 000/- without getting them sanctioned by the competent authority prior or post facto.
The loans have been disbursed without any collateral credit taken in this regard, the NSCs which has been kept but not pledged in favour of bank and sanctioned demand loan by keeping any sufficient security, manipulation has been made in a numbers of NSCs which were already pledged against demand loan 3/68, 3/80 and 3/101, the loan has been sanctioned or disbursed in favour of one Lalan Prasad without obtaining any securities while it was supposed to backed by NSCs, bank loan was sanctioned to one Smt. Tara Devi Jain and subsequently the loan was fraudulently misappropriated by getting the documents executed by fake -6- person.
The relevant debit card vouchers have also been destroyed. However to the assurance of M/s Auto Spares, the imaginary Nos. has been quoted in the government cheque and fraudulently issued draft.
In sum and substance, the conduct of the petitioner shows his dishonesty and lack of integrity.
13. The petitioner has been provided an opportunity to report the same before the Enquiry Officer but the Enquiry Officer on the basis of documents/vouchers kept in the branch of the bank has found the petitioner guilty of allegation nos. 1, 2, 3, 4, 9, 10, 12 and 13. The allegation nos. 5 and 6 have been found partly proved, allegation nos. 7, 8 and 11 have not been found proved.
14. The disciplinary authority after accepting the findings of the Enquiry Officer has deferred with the finding of the Conducting Officer with regard to allegation nos. 5, 6 and 7 and thereafter imposed the punishment of removal from service on the ground that the petitioner has failed to perform his duty honestly, devotion, diligence and dedications.
15. The petitioner is an employee of a Bank holding a responsible post of Branch Manager. A Bank officer is required to exercise higher honesty and integrity. For the security of the money of customers, every officer of the bank is required to take all possible steps to protect the interest of bank and to discharge his duty with utmost integrity, honesty, diligence and dedication and to do nothing which is unbecoming of a bank's officer. Good conduct and discipline are inseparable from the functioning of every officer of the bank. The very discipline of an employee like a bank depends upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority indicates towards a breach of discipline and is misconduct. The allegation against the petitioner is of not functioning in accordance with guidelines of the bank. The bank has formulated a procedure for sanctioning of loan and other business. Every officer is supposed to follow the procedure and guidelines while advancing the loan so that in cases of any exigency the money which has been disbursed can be procured and for this purpose the provision has been made to keep collateral security in the shape of NSCs and other mode so that in case of non-payment of amount the collateral security may be liquidated and public money may be secured.
-7-16. The petitioner has acted without following the due procedure and advanced the loan without placing the NSCs from the concerned post office. It is not the least rather petitioner has manipulated in the earlier NSCs, he has also manipulated the debit vouchers.
This action of the petitioner shows that he has not acted with utmost honesty rather from the action of the petitioner it shows intent of fraud and cheating.
17. The contention of the petitioner that there is no financial loss to the bank that does not help the petitioner any way because even after repayment of amount the way the petitioner has performed his duty amounts to serious misconduct. There are sufficient materials available on record which shows that the laid down procedure has not been followed by the petitioner being the Bank Manager of the said branch.
18. The other contention of the petitioner that he has already been acquitted in criminal case hence he ought to have been reinstated in service although with respect to this contention there is no specific prayer in the writ petition but in this regard the judgment pronounced by the competent Court of criminal case is necessary to be discussed wherein it has been held after discussing evidence of P.W. 5 Junul Bari a Clerk posted in the said branch who stated as follows:-
"9. P.W. 5 is Junul Bari. A Clerk of S.B.I. Sighrawaqan Branch. He has stated in his evidence that he was posted at S.B.I. Sighrawan from 1986 to 1993 as cashier and sri Shyam Nandan Prasad was Branch Manager from 1989 to 1992 and he is accused of this case and the demand loan application is in his writing dated 30.5.92 and he signed in the name of R.K. Sahay, which has been marked as Ext.2, on the same there is no mention that the he will give N.S.C. and no number of N.S.C. mentioned. N.S.C., was not pledged to the Bank marked as Ext.3. The demand or misery of Rs. 12,000/- is also in his writing. Draft voucher of Rs. 12,000/- has been marked Ext.4. This application dated 6.6.92 which is in the name of Lalan Prasad of Rs. 16,000/- which is in the writing of the accused on which there is mention of N.S.C. but no N.S.C. has been filed. This promissory note dated 6.6.92 is in the pen of the accused and this accused written in the name of Lalan Prasad which has been marked as Ext. 3/a. He has further stated in his evidence that demand promissory note delivery letter dated 6.6.92 is in writing of the accused and he himself signed in the name of Lalan Prasad. He has further stated in his evidence draft voucher of Rs. 16,000/- prepared by the accused. The draft of Rs. 10,000/- has been prepared by the accused himself -8- dated 6.6.92 and he signed in the name of Lalan. He has further stated in his evidence that the draft voucher dated 6.6.92 of Rs. 6,000/- on which the accused signed as applicant and he cancelled the said draft and himself took repayment. In the issue register he had signed. Which has been marked as Ext.5 he has further stated that on 30.5.92 he sanctioned Rs. 12,000/- and kept the money himself and against that no N.S.C. was pledged, this P.W.5 has further stated that Tara Devi Jain had opened R.D. account in his branch on which Tara Devi Jain has signed vide R.D. A/c no.
395. This paper has been marked as Ext.7. Accused S.N. Prasad filed application for taking the accused in the name of Tara Devi Jain. He has further stated that he identifies the signature and writing of the accused which has been maeked as Ext.8. He has further identified the for sanction of Rs. 5,000/-. D.P. note which is in the writing of the accused, which has been marked as Ext.9. Delivery a letter dated 22.11.90 is also writing and signature of the accused which has been marked as Ext. 9/a. He has further stated that security delivery letter dated 22.11.90 has been filed up by the accused and he signed on the same imposing himself as Tara Devi Jain. Which has been marked as Ext. 9/b. Like wise on security delivery letter the accused signed as Tara Devi, which P.W. 5 identified marked as Ext. 9/c. on Ext.8 the loan sanction order is of the accused which also been marked as Ext.8/a. He has further stated in the evidence in para 3 that in this respect correspondence was done with Tara Devi and in reply she had written the Bank that she never took any loan but the said letter has not been proved by this P.W. 5. He has only identified the signature of Tara Devi on the said latter which has been marked as Ext.10. This P.W. 5 has stated in his evidence that one loan dated 22.12.89 against which no N.S.C. pledged. This application is also in the writing of the accused and he this application is also in the writing of the accused and he himself sanctioned the loan, which has been marked as Ext.11. Another D.P. note has been marked as Ext.11/a and 11/b, 11/c where are in the writing of the accused. He has further stated that as he worked from 1989 to 1992 hence he can identify the signature and writing of the accused."
19. Further in the judgment it has been stated that R.K. Sahay, Lalan Prasad and Smt. Tara Devi who have taken loan and in whose favour drafts have been issued, it has been held by the learned Court below that they are the very important witnesses for this case who have not been examined by the prosecution.
20. Out of five prosecution witnesses P.Ws. 1, 2, 3 and 4 have not supported the prosecution case. Other witnesses namely, P.W. 1, 2 and 3 have been declared hostile. P.W. 4 is the informant of the case, has also not supported the prosecution case.
-9-.
21. Hence, it cannot be said to be an honourable acquittal as has been held by Hon'ble Apex Court in the case of Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal reported in (1994) 1 SCC 541. In this case, Apex Court considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court. In that context, the Hon'ble Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable.
22. The expression "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused, it can possibly be said that the accused honourably acquitted.
23. Whereas in the instant case, from perusal of the judgment pronounced by the learned Court below in the criminal case, out of five witness only the deposition of one witness has been recorded, other wittiness have been declared hostile, the Enquiry Officer has not been examined, the other relevant loanees have not been examined as witness.
Thus, there is no full consideration of the evidences hence it cannot be said to be Hon'ble acquittal.
24. Moreover, in view of the judgment rendered by Hon'ble Apex Court as reported in the case of Deputy Inspector General of Police and Another Vs. S. Samuthiram reported in (2013) 1 SCC 598, at paras 26 and 27 it has been held-
"26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In -10- the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules."
In view of the ratio as of the Hon'ble Apex Court, there cannot be automatic reinstatement after acquittal in a criminal case.
25. So far as the contention of the petitioner that the order passed by the appellate authority is cryptic and non-speaking, there is no substance in the same as the appellate authority has passed the order holding therein that the petitioner has not produced any new facts.
26. To test the order of appellate authority it is necessary to examine the memorandum of appeal which has been preferred by the petitioner. From perusal of the same, I find that no material has been produced or stated by the petitioner touching his defence rather only the relief has been sought on the basis of mercy. Hence, the appellate authority has rightly come to conclusion that the petitioner has not brought any new thing before him and as such the appeal has been rejected.
27. Thus, in my view the findings given by the disciplinary authority are based on adequate material related not only to the negligence but also acts of dishonesty and fraud.
28. Thus, I find not merit in the writ petition. Hence the same is hereby dismissed.
(Sujit Narayan Prasad, J.) Tarun