Orissa High Court
Sri Bansidhar Senapati vs The Chairman on 17 January, 2020
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT :: C U T T A C K
W.P.(C) No.3093 of 2002
(In the matter of application under Articles 226 & 227 of
the Constitution of India.)
Sri Bansidhar Senapati : Petitioner
-Versus-
The Chairman, State Bank of India & others : Opp. Parties
For petitioner :M/s. B. Tripathy,
P.Ch. Rout
For Opposite party nos.1 to 6 :M/s. S.P. Das
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing :12.12.2019 :: Date of Judgment :17.01.2020
Biswanath Rath, J. This Writ Petition has been filed seeking
quashing of the impugned order of punishment dated 29.01.2001
under Annexure-6, the consequential order of the appellate
authority dated 31.07.2001 under Annexure-7 and also the review
order dated 29.11.2002 under Annexure-8, further also seeking a
direction to the opposite parties to reinstate the petitioner in his
service with all consequential service benefits.
2. Short background involved in this case is that the petitioner
while discharging his duty as Branch Manager in MMGS-II, State
Bank of Hydrabad GCP, Bhubaneswar Branch, the Disciplinary
Authority/General Manager (Operation) served a charge memo
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dated 16.09.1998 on the petitioner making therein the allegation
involving the petitioner that during his service tenure from 26th of
June, 1995 to 27th September, 1997, he failed to discharge duties
with utmost honesty, integrity, devotion and diligence. Petitioner
was called upon to furnish his written statement in response to
charge memo, which the petitioner submitted on 17.11.1998
denying the allegations leveled against him. Petitioner disclosed that
during his tenure as Branch Manager at G. Prasad Branch,
Bhubaneswar, he brought the loss making Branch into profit after 5
years of its opening. It is only involving such result the petitioner
was conferred with the prestigious Managing Director's award.
Petitioner also contended that he acted upon with good faith and
with clear anxiety to develop the business of the Institution by
taking certain business risk in the interest of the Bank and all his
intention was to bring the Branch into a greater height. While the
defence of the petitioner was pending consideration of the opposite
parties he was served with another charge-sheet framing certain
additional charges on 10.07.1999. The petitioner alleged that he
was not intimated regarding the development on his defence on
both the occasions but however in the meantime the Enquiry Officer
was appointed by order dated 11.12.1998 and 30.08.1999 passed
by the General Manager (operation). Petitioner also alleged that he
was never communicated regarding such appointment. During
inquiry the petitioner called for certain document in order to
substantiate his defence in the inquiry clearly indicating therein
that unless the relevant documents are not supplied he will be
prejudiced and will not be in a position to defend his case in the
inquiry proceeding. It is alleged that in spite of several request no
documents were supplied to the petitioner and under compelling
circumstance the petitioner was constrained to participate in the
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inquiry but in absence of supply of relevant documents. The
petitioner also alleged that he was not even allowed by the Enquiry
Officer to examine witnesses in the inquiry. Only one witness was
examined on behalf of the Manager and even the petitioner has not
been allowed to examine himself. It is only on the basis of the
statement made by the Management, its witness and the document
produced by the Management, the Enquiry Officer came to find that
the allegation against the petitioner has been proved. Petitioner also
alleged that the inquiry report only relies on the representation of
the petitioner dated 17.02.2002. Petitioner contended that report
vide Annexure-4 is in violation of the principle of natural justice
besides the same, the report also appears to be an ex parte one. It is
thus alleged that based on such defective inquiry report the
Disciplinary authority passed the impugned order of punishment
thereby directing for compulsory retirement of the petitioner from
the Bank service and also directing therein for recovery of a sum of
Rs.15,000/- (Rupees fifteen thousand only) as token recovery
towards loss incurred to the Bank. Petitioner also alleged that
before imposition of the penalty the Disciplinary authority should
have given an opportunity to show cause. It is thus alleged that the
order of penalty suffers on account of gross violation of the natural
justice. Petitioner while also challenging the order of the
Disciplinary authority only on the premises of copy paste of the
findings of the Enquiry Officer also alleged that the Disciplinary
Authority has not applied its independent mind while passing the
order of punishment vide Annexure-6. It further reveals that the
petitioner preferred appeal raising all the above allegations but the
appellate authority dismissed the appeal by its order dated
31.07.2001 in total non-consideration of the grounds raised by the
petitioner, on the other hand it appears, the appeal has been
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dismissed on the sole ground that the irregularities committed by
the petitioner are so serious and hence, it does not require any
interference in the order of punishment. The order of the appellate
authority is appearing at Annexure-7. The petitioner filed review on
19.10.2001. After receiving the notice in the Writ Petition in its pre-
amendment stage, the opposite party no.1 without taking into
consideration the ground reality rejected the review application
hurriedly and arbitrarily. Copy of which was received by the
petitioner on 12.12.2002 vide Annexure-8 and brought by way of
amendment of the Writ Petition.
3. Assailing the orders vide Annexures-6, 7 & 8 Shri Tripathy,
learned counsel for the petitioner while reiterating the ground of
defence by the petitioner more particularly the inquiry report suffers
on account of non-supply of document applied for, not providing
opportunity of examination of the delinquent, not providing
opportunity of show cause before imposition of punishment and the
appeal order suffers on account of non-consideration of the grounds
raised in the appeal, also submitted that the Reviewing Authority
even did not comply the provision of State Bank of Hyderabad
(Officers) Service Regulations 1979 hereinafter in short be called as
"the Regulation, 1979", which requires, the Reviewing Authority
should dispose of the review by calling for the records of the case
before passing the final order. It is alleged that the reviewing
authority has not followed the statutory rules.
Shri Tripathy, learned counsel for the petitioner also contended that
the Disciplinary Authority, the appellate authority and the
Reviewing Authority have not taken into account that in the
meantime 90% of the irregularities mentioned in the charge-sheet
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have already been regularized. Shri Tripathy, learned counsel for
the petitioner also contended that during incumbency of the
petitioner in the G. Prasad Branch, Bhubaneswar, the Bank was
running with huge loss. It is for the great efforts of the petitioner the
Bank got into profit making institution. For which the petitioner has
been awarded by the A.G.M, D.G.M, the M.D. and also by the
District Collector. Shri Tripathy, learned counsel for the petitioner
also contended that during pendency of the above proceeding, the
petitioner was allowed to attend the interview for promotion to the
post of Middle Manager-II to M.M-III Cadre for the year 1998, 1999
and 2000 and the result involving such interview particularly
involving the petitioner has been kept in sealed cover. Shri Tripathy,
learned counsel for the petitioner also alleged that there has been
some illegal adjustment from the provident fund account of the
petitioner unilaterally. Shri Tripathy, learned counsel for the
petitioner further alleged that the Disciplinary authority did not
realize the request of the petitioner to change the Enquiry Officer as
he was anticipating, not to get justice in the inquiry and continued
with such Enquiry Officer who even did not record the statement of
the petitioner. It is also alleged that the procedure followed by the
Enquiry Officer is also unknown to law. Referring to clause 67 of
the Regulation called as State Bank of Hyderabad (Officers) Service
Regulations 1979 Shri Tripathy, learned counsel for the petitioner
submitted that the regulation 67 prescribes, any one or more of the
penalties may be imposed on an Officer for an act of misconduct or
for any other good and sufficient reason. Similarly learned counsel
for the petitioner also contended that the Clause 67(1) of the
regulation speaks of compulsory retirement as a major penalty,
whereas clause 68 of the regulation 1979 says that the Disciplinary
authority himself or whom directed by his superior authority may
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institute a disciplinary proceeding against the Officer. It further
provides that it may also impose any of the penalties specified in
the Regulation 67 of the Regulation 1979. Referring to the above
provisions of the Regulation, 1979, Shri Tripathy, learned counsel
for the petitioner attempted to justify his allegation. Shri Tripathy,
learned counsel for the petitioner also referring to the provision at
regulation 67 contended that when the provision prescribes
imposition of major penalty by appointing authority on the
recommendation made by the disciplinary authority, in the case at
hand the impugned order of penalty of compulsory retirement was
passed by the General Manager who works two stages below than
the appointing authority. It is, therefore alleged that the General
Manager had no authority to impose such punishment and thus the
impugned order of punishment ought to be interfered with and set
aside. Shri Tripathy, learned counsel for the petitioner also alleged
that the authority did not take into consideration the fact that the
petitioner belongs to middle Manager-II to M.M-III Cadre. It is, in
the above circumstances Shri Tripathy, learned counsel for the
petitioner sought for setting aside of the impugned orders vide
Annexures-6, 7 & 8 and to grant consequential relief.
4. Sri Sakti Prasad Das, learned counsel appearing for opposite
party nos.1 to 6, on the other hand while disputing each of the
allegations made by the petitioner referring to the counter
statement of the opposite parties-Bank institution in their counter
affidavit contended that allegations that the first charge-sheet was
issued to the petitioner all on a sudden is false and incorrect. Sri
Das contended that it is after noticing series of irregularities
committed by the petitioner involving several banking aspects many
of which irregularities came to the light during visit of Assistant
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General Manager to the Branch and also during audit of the
Branch, petitioner was initially called for explanation. In the
meantime, certain other irregularities involving the petitioner could
also come to the notice of the authority and the petitioner again was
asked to file show-cause. The issue also involved the preliminary
enquiry resulting in placing the petitioner under suspension. It also
involved a special audit. Shri Das submitted that replies of the
petitioner being not satisfied, charge-sheets were issued on
16.09.1998 and 10.07.1999 respectively. To the allegation of the
petitioner that he was not afforded with opportunity to show-cause,
Sri Das, learned counsel for the opposite party nos.1 to 6 referring
to counter response also contended that originally the bank gave
the petitioner fifteen days time to submit his reply and on
consideration of his request for grant of more time, time was also
extended for another fifteen days with permission to the petitioner
to verify the records at the Branch for two days. Only after the
response of the petitioner was found to be unsatisfactory, the
Disciplinary Authority ordered for departmental enquiry by making
appointment of the Enquiry Authority as well as the Presenting
Officer. On the allegation that the inquiry was not conducted in a
fair manner, Sri Das, learned counsel for the opposite party nos.1 to
6 contended that not only the inquiry was conducted in a fair
manner but the same was also made following a meticulous system
as well as procedure required in such matters. Petitioner
participated in the inquiry taking assistance of another Senior
Officer of the Bank. He has also submitted his defence in proof.
Allegation with regard to non-supply of documents is also claimed
to be false on the premises that petitioner was given sufficient time
to verify records at the Branch office and it is all through after
completion of the management's case again the petitioner was given
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one day time to verify the records for cross-examination to the
defending Officer. It is also contended that petitioner had never
raised any objection with regard to non-supply of material or non-
performance of any procedure during the entire enquiry proceeding.
Allegation that the petitioner was not given chance to examine the
witness on his behalf is also stoutly denied.
Sri Das, learned counsel in addition to the above contended
that in the departmental enquiry representative of the petitioner
rather made a clear statement that he is not going to present any
witness on behalf of the defence. Allegation of not giving scope for
cross-examination is also seriously objected. It is, on the other hand
contended that the defence representative not only cross-examined
the witness of the management on 30.12.1999, 19.01.2000,
21.01.2000 and 24.01.2000 but he also availed the opportunity of
further cross-examination of such witness on 21.01.2000. This
apart, petitioner also presented 13 exhibits, which are marked as
TE-12 to DE-11. Sri Das, learned counsel for the opposite party
nos.1 to 6 also submitted that it is only based on the findings of the
enquiry authority and the materials available on record, the
disciplinary authority inflicted the penalty. Claim of the petitioner
on non-supply of documents is also objected on the premises that
each of the documents relied on by the Management were handed
over to the defence on a day today basis. Filing additional counter
affidavit on the amended prayer involving the Writ Petition, the
Bank authorities submitted that there is no rejection of the review
application filed by the petitioner hurriedly. Allegation of the
petitioner that he attended the interview for promotion to the post of
Middle Management Grade-III Cadre for the year 1998-99 and 2000
during the period of inquiry and the result is kept in sealed cover
has absolutely no bearing on the inquiry and as per Service Rule for
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the pendency of the disciplinary proceeding results involving such
interviews are ordinarily kept in sealed cover. But however, for the
imposition of punishment of compulsory retirement, there was no
occasion on the part of the management to declare such result. For
the information made through the additional affidavit involving
acquittal of the petitioner from a CBI case, the petitioner claimed
such result has a bearing on the disciplinary proceeding. Filing
counter affidavit to such additional affidavit, the opposite parties
contended that charges framed involving both the cases may have
been linked but the method followed in both the proceedings since
completely different, the Bank authority contended that giving a
benefit of doubt by the CBI court, has no bearing on the enquiry,
disposal of which is based on the materials and the findings
available therein.
In their defence, the opposite parties have relied on the
following decisions, which are quoted hereunder:
1) The Disciplinary - cum - Regional Manager and
others -Vrs- Nikunja Bihari Pattnaik, reported in 83 (1997)
CLT 533 (SC) (2) Ganesh Santa Ram Sirur -Vrs- State
Bank of India and others, reported in AIR 2005 SC 314. (3) Ch.
Laxmikantham -Vrs- The Chairman, State Bank of India and
others, reported in 101 (2006) CLT 65. (4) State Bank of India -
Vrs- S. Vijay Kumar, reported in (1990) 4 SCC 481.
4. Looking to the petitioner's challenge to the imposition of
penalty vide Annexure-6 being passed by an incompetent Officer,
this Court takes into consideration the averments made in
paragraph no.9 of the counter affidavit on behalf of the opposite
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parties to the additional affidavit filed by the petitioner, which reads
as follows:
"That at the cost of repetition this deponent humbly submits
that the proceeding is violated on the ground that the disciplinary
authority is two stages below the appointing authority which the
petitioner has averred is not correct in view of the amendment of
the Officers regulation 1979 by the Board at its meeting held on
25.05.1996 wherein it has been amended that the appointing
authority for Officers of category of JMGS I to MMGS-III is G.M. in
place of CGM, (Prior to this M.D. was the appointing authority and
Disciplinary Authority accordingly the order of punishment was
passed by the G.M. as per the above amended regulation. A Similar
question was raised in the case of S.B.I vrs. S. Vijay Kumar
reported in 1990 Vol.4 SCC, page 481 wherein the Hon'ble
Supreme Court has held as follows:
Though appointed by Executive Committee but at the time of
their dismissal, Chief General Manager made the appointing
authority- In the circumstances, held, order of dismissal passed by
the Chief General Manager competent being not by an authority
lower than the appointing authority.
Service Law- Dismissal- Competent authority- Bank Officers-
Governed by statutory regulations- Regulation conferring right not
to be dismissed by any authority lower than the appointing
authority- Explanation to the regulation amended with
retrospective effect providing that appointing authority shall mean
and include the authority who had been designated such at the
time when such order was passed. Though the Officers were
appointed by Executive Committee but at the time of passing of
dismissal orders against them, Chief General Manager had made
the appointing authority- Hence dismissal order passed by the
Chief General Manager competent- Amendment of the regulation
with retrospective effect, having been made in exercise of power
conferred by the statute itself, not open to question on ground of
affective vested rights."
For the response of the opposite parties this Court finds,
there is no substance in the allegation at the instance of the
petitioner that the impugned order has been passed by an
incompetent Officer.
5. It appears, the petitioner has faced the following charges:
"While working as Branch Manager, G.G.P. Branch,
Bhubaneswar during the period from 26th June, 1995 to 27th
September, 1997, you appear to have failed to discharge your
duties with utmost honesty, integrity, devotion and diligence and
acted in a manner unbecoming of a bank official inasmuch a:
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(1) You had fraudulently debited local clearing a/c and passed
on undue benefit to the borrowers.
(2) You had sanctioned loans to the borrowers exceeding the
discretionary powers vested in you without proper appraisal
and failed to report these sanctions to the Controlling
Authority.
(3) You had allowed excess drawings the borrowal a/cs and
suppressed information regarding these excess drawings
from your Control Authority.
(4) You had sanctioned clean overdrafts to the borrowers for
which you were not having discretionary powers and
suppressed the information from the Controlling Authority.
(5) You had purchased cheques in excess of your discretionary
powers and suppressed the information from the Controlling
Authority. You failed to recover the amounts when some of
the cheques purchased by you were returned unpaid.
(6) You had sanctioned loans under Government sponsored
scheme to ineligible persons/ defaulters violating the laid
down norms.
(7) You had sanctioned loans under Government sponsored
scheme which have become sticky and doubtful of recovery
and the bank is likely to incur loss.
(8) You had sanctioned loans for consumer durables even
though the branch is not identified for sanction of consumer
durable loans and suppressed the information from the
Controlling Authority. You failed to adhere to the laid down
norms thereby rendering the a/cs sticky and doubtful of
recovery.
(9) You had released loan for consumer durable violating the
terms of sanction of the Regional Office.
(10) You had sanctioned loans to the borrowers violating the
instructions of the Controlling Authority not to release the
loans and thus, ignored the lawful instructions of the
Controlling Authority.
(11) You had sanctioned loans to the borrowers, without
proper appraisal and failed to report these sanction to the
Controlling Authority.
Your above acts, if established are in violation of
Regulation 50(4) of SBH (Officers) Service Regulations, 1979
and constitutes misconduct under Regulation 66 of the said
Regulation.
Additional charges reads as follows:-
While working as Branch Manager, G.G.P. Branch,
Bhubaneswar during the period from 26th June, 1995 to 27th
September, 1997, you appear to have failed to discharge your
duties with utmost honesty, integrity, devotion and diligence and
acted in a manner unbecoming of a bank official inasmuch as:
(1) You have fraudulently debited Local Clearing Account and
Clearing Adjustment Account and extended under benefit to
the customers/ borrowers by sanctioning temporary
overdrafts jeopardizing the interest of the Bank.
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(2) You have allowed credits to the lends accounts by debit to
IBIT/ Suspense accounts by way of allowing temporary
overdrafts exceeding the discretionary powers vested in you.
(3) You have failed to recover income receivable towards interest
on account of the superfluous credits given to the accounts.
(4) He had sanctioned an overdraft against the Spl.TDRs without
marking lien, in the respective Spl. TDR registers, violating
the extant guidelines.
6. Now coming to the charges involving the Disciplinary
Proceeding, this Court finds, there is clear statement by the
opposite parties that for detection of certain irregularities during
consideration of the issue involving the first charge-sheet, the Bank
was constrained to issue the additional charge-sheet. It is on the
allegation of the petitioner that he has not been given with fair
chance for submission of his explanation, it appears, the first
charge-sheet dated 16.09.1998 was received by the petitioner on
24.09.1998. Originally though he was given with fifteen days time
for submitting his reply, but on his request dated 6.10.1998 for
extension of time by another 15 days, he was not only permitted to
verify the records at particular Branch for two days, but he was also
given further time to file his submission. Petitioner had submitted
his response before the Disciplinary Authority and it is only after
considering the response of the petitioner and finding response of
the petitioner not being satisfactory, the Disciplinary Authority
directed for initiation of a departmental proceeding by appointing
the Enquiry Officer as well as the Presenting Officer with
communication of the said fact to the petitioner on the second
charge-sheet. Thereafter, the petitioner chose not to submit any
response. This Court also observes, the inquiry was conducted
clubbing both the charges together. Petitioner was even permitted to
take assistance of another Senior Officer as his defence
representative. It is, in the circumstance, this Court finds, there is
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no deficiency in the observance of the natural justice in the
disciplinary proceeding involving the petitioner. This Court here
also takes into considertion the counter response of the opposite
parties that petitioner not only was provided with opportunity of
perusal of documents relied on by the Management which was
availed by defence assistance but there is also supply of documents
by the Management. This court here also takes into cognizance of
the response of the oppostie parties that there was no such
complain by the delinquent during the enquiry proceeding and it
appears, these allegations are subsiquently developped.
7. It is, at this stage of the matter, considering the other
submissions of the petitioner that for his acquittal in the proceeding
conducted through C.B.I on some of the charges involved herein,
the petitioner also deserves to be cleared in the disciplinary
proceeding, this Court for the settled position of law of land
observes, the criminal proceedings and the departmental
proceedings though involve common issues but consideration since
involve different parameters, acquittal in one cannot be simply be
the basis of acquittal in the other proceeding. It is in the
circumstance, this Court finds, there is no substance in such claim
of the petitioner. Coming to the allegation of non-consideration of
his case by the appellate authority, this Court finds, the appellate
authority after taking into account the submission of the petitioner
and finding the irregularities committed by the petitioner being
confirmed through the disciplinary proceeding has made clear
observation that the irregularities and the lapses committed by the
petitioner delinquent are serious and thus found the punishment
imposed on the petitioner is just and fair and accordingly dismissed
the appeal. From the discussion of the appellate authority, this
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Court finds, there is no infirmity in the same. Law has also been
fairly settled holding that High Court while exercising its
jurisdiction cannot sit as appellate authority and role is very very
limited.
8. Now coming to the allegation of the petitioner on the quantum
of punishment being disproportionate to the offence alleged and
established, taking into account the charges framed against the
petitioner and looking to the findings of the Enquiry Officer
appearing through Annexure-4 in consideration of the material as
available before him, this Court finds, the Enquiry Officer after
discussing on each aspect not only placed some admission of the
petitioner but while coming to assess the charges no.1 on
imputation 1(a) found the same to have been established except
that the petitioner had sanctioned a cash credit limit of
Rs.1,25,000/- to M/s. Mathrushakti Agency. Similarly found the
imputation 1 (b) not established. On imputation no.2 the Enquiry
Officer found, imputation 2 stood established to the extent
indicated therein. Thus there has been partial establishment of the
charge no.2. The Enquiry Officer found the charge no.3 to have
been established. Charge No.4 has also been established. Charge
no.5 contains three imputation also established. Charge no.6
containing several imputation. Though the Charge no.6(a) is not
established, Charge no.6 (b) stood established. Charge no.7 has
several imputations, but could not be established. Charge no.8
stood established except that he obtained the salary certificate/
letter of undertaking in respect of four accounts and five accounts
respectively were either closed or adjusted subsequently and the
control returns were submitted by the Branch belatedly i.e. after
2/3 months. Charge no.9 is also established partially. Charge no.10
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stood established. Charge no.11 also stood established. So far as
the second charge sheet is concerned, charge no.1 having several
components found to have been established. Charge no.2 involving
additional charges is also established. Charge no.3 is established
but partially. Charge no.4 also stood established. For
better appreciation this Court here records the findings of the
Disciplinary Authority, which reads as follows:
"From the depositions MW-1 and also on perusal of Chapter-V,
Para-5.4 of Bank's Book of Instructions, (ME-1). It is observed that
when a loan is considered against the TDR deposit necessary lien
should be marked in TDR Register, ledger and pass book. On
liquidation of loan account, the lien is to be cancelled and to be
authenticated by an official.
Perusing para-14.2 of Chapter-V, Bank's Book of Instructions,
ME-2, it is observed that the term deposit is not transferable,
discharge over a revenue stamp acknowledging the receipt of
interest/principal and direction of renewal is required. Instructions
to pay to a third party or another Bank must be through a separate
letter.
Perusing ledger sheets (ME-3/1 to 7) Control Card (ME-4) of
M/s.Xero Care, C-A/c/SIB/222, it is observed that an OD limit of
Rs.40,000/- was mentioned which was subsequently enhanced to
Rs.1,60,000/- and thereafter was reduced to Rs.1,20,000/-. The
alteration/ changes made in the limits were not authenticated.
Perusing a cashkey loan document pertaining to current A/c.
No.SIB/222, it is observed that a limit of Rs.40,000/- was
sanctioned by the CSO on 6.9.1996 to Mrs. Sarifa Khatoon,
Proprietrix, M/s.Xero Care against the security/ pledge of duplicate
term deposit 0391104 and 0391105 for Rs.25,000/- each which
were due for payment on 17.07.1998. Through another set of
documents, it is observed that an overdraft limit of Rs.1,60,000/-
pertaining to the same account was sanctioned on 14.09.1996 to
Mrs. Sarifa Katoon, Proprietrix, M/s. Xero Care, by the CSO against
the security of special TDR's. The particulars of the securities were
i.e., numbers were noted only on control card. i.e., Spl. TDR's
0715073 to 0715078 all dated 16.07.1996 due on 17.07.1998 each
for Rs.25,000/- (total Rs.1,50,000/-), (ME-5/1 to 5/8).
On perusal of the 6 transfer credit vouchers and 6 application
forms for issuance of Spl. TDR's, it is observed that on 16.07.1996,
6 Spl. TDRs were issued each for Rs.25,000/- for a period of 2 years
favouring Smt. Sarifa Khatun bearing Nos.0715073 to 0715078 with
due dates 17.07.1998 and signed by Shri J.K. Rath (Manager). On
the application forms for TDRs. The Spl. TDR Nos.0715073 to
0715078 were rounded and Nos.0391104 to 0391109 were
incorporated and authenticated by the CSO. Out of the 6 TDRs
issued, on the TDR Nos.0715075, 5077 and 5078 (MEs-8/3, 8/5,
8/6) a notation rounding the original Nos. and were written as
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duplicate - bearing Nos.0391106, 3091108 and 0391109. The
duplicate TDRs 0391106, 1108 and 1109 (MEs-9, 10 & 11) were
paid through transfer and credited to C-A/c/SIB/222 on 5.10.1996
by the CSO.
Perusing TDR Register (ME-12), it is observed that the original
TDR No.0715073 to 078 earlier written in the Register were
authenticated by Shri J.K. Rath (acting Manager). It is further
observed that they were rounded off and the duplicate Nos.0391104
to 0391109 were written on the TDRs respectively and were
authenticated by the CSO. Lien for C-A/c OD/SIB/222 was written
and authenticated by MW-1 against TDR Nos.0715073.
It was brought on record through the depositions of MW that
the ledger a/c was showing a debit balance of Rs.177581/71 as on
01.05.1998, and on 27.06.1998, the balance was Rs.1,76,916.71
(debit).
After crediting the proceeds of TDR Nos. 0715073. 5074 and
5076 on its due date which was paid through the transfer along with
the interest total aggregating to Rs.96,867/-, the balance
outstanding as on 17.07.1998 in the account was reduced to
Rs.80,049/71. It is observed from the proceedings that the
outstanding amount of Rs.80,049.71 increased to Rs.96,406.71 as
on 22.06.1999. As the amount could not be recovered from the
party, it was transferred to Protested Bills Account as there were no
securities left with the branch.
From the letter No.ADV/270 dated 03.03.98 addressed to the
Controller (ME-14), it is observed that the Branch advised the
Regional Office about issue of 6 Spl. TDRs on 16.07.96 each for
Rs.25,000/- and also about the OD facility of Rs.1.60 lacs
sanctioned on C-A/C/SIB/222 to M/s. Xero Care against the
security of original Spl. TDRs on 14.09.96 by the CSO and the lien
for OD was not marked in Spl. TDR Register. Duplicate TDRs were
issued during August, 1996 as per its serial numbers. Letter from
depositor and indemnity bond for issuance of duplicate TDRS were
not obtained and held on branch record.
It is further observed that the Branch submitted a detailed
report (ME-17/2) to the Controller in which it was stated that 6 Spl.
TDRs were issued on 16.07.96, debiting A/c No.SIB-222. A DL of
Rs.20,000/- was sanctioned against duplicate TDR 0391107 to
Sarifa Khatun on 30.08.1996. The A/c was closed by remittance of
cash on 26.11.1996. No acknowledgement of borrower/ depositor in
the ledger for having received the security, i.e. TDR was obtained.
From the foregoing, it is observed that the CSO sanctioned OD
limit Rs.1,60,000/- against Spl. TDRs-0715073 to 5078, each Spl.
TDR was of Rs.25,000/- standing in the name of Sarifa Khatun on
C-A/c/SIB/222 to M/s.Xero Care for which she was the Proprietrix.
The CSO rounded off the original Spl. TDR numbers on application
froms and mentioned duplicate term deposit nos.., in the TDR Issue
Register. While issuing duplicates, he had not obtained letter from
depositor for issuing duplicates and also the indemnity bond as per
the procedure in vogue to safeguard the interest of the Bank. He
sanctioned an overdraft/ cashkey of Rs.40,000/- on 06.09.96
against duplicate TDR No.0391104 and 1105. He also sanctioned a
DL of Rs.20,000/- to Sarifa Khatun against duplicate TDR
17
No.0391107 on 30.08.1996 which was closed by cash. The duplicate
TDRs-0391107 on 30.08.1996 which was closed by cash. The
duplicate TDRs-0391106, 1108 and 1109 were paid prematurely on
05.10.96 and credited to OD A/c-C-A/c/SIB/222 while the originals
were held as security for loan.
It is evident from the DL/OD sanctioned on 30.08.1996 and
06.09.1996 that the duplicate TDRs were issued on or before
30.08.1996 and the TDRs were issued by the CSO. While
sanctioning OD of Rs.1,60,000/- on 14.09.96 against original
STDRs, he did not notice the existence of duplicates which the CSO
himself had issued earlier in lieu of originals. Apart from not noting
lien for the loans on the TDRs and in the relative TDR Register, he
also sanctioned a Demand Loan and Overdraft against duplicate
TDRs which were issued by him in lieu of originals. He further
allowed premature payment of 3 duplicate TDRs on 5.10.1996 and
the proceeds were credited to OD A/c and permitted further
withdrawals without reducing the Drawing Power accordingly.
The CSO in his submissions stated that though a lien was not
marked he mentioned the C-A/c. No.222 on all TDRs. The 3 TDRs
were prematurely closed and the amounts were transferred to the
account. Since the drawing power was not reduced, the party drew
from the account. Since the originals were misplaced at the branch,
no indemnity was obtained. The CSO submitted that he was
appointed as RDO without having working knowledge about general
banking and advances as such, some procedural irregularities might
have occurred. He brought the loss making branch into profit. His
branch was a member of MD's club. In an anxiety for development of
business he had taken certain business risks in the interest of the
bank. He requested to please consider his submissions and to take a
lenient view of the irregularities alleged against him.
The submissions of the CSO are not tenable as he failed to
adhere to the extant guidelines in issuance of duplicate TDRs and
sanctioned loans against original/ duplicate TDRs resulting in loss
to the Bank.
In view of the foregoing, I hold the charge/ imputation-4
alleged against the official as established, concurring with the
findings of the I.A.
Taking into consideration the charges held as established
against the CSO, I impose the penalty of compulsory retirement from
Bank's service and recovery of a sum of Rs.15,000/- as a token
recovery towards loss incurred by the Bank, on Shri B. Senapathy,
Officer, MMGS-II, (Under Suspension) which would meet the ends of
justice. The period of suspension will be treated as off duty and he
will not be eligible for any payment other than the subsistence
allowance already paid to him. He will also not be eligible for any
increment during the period. The period of suspension is not to be
counted for service.
Considering the above and as this Court finds, many of the
charges being serious, this Court is of the opinion that
establishment of any one of them even appearing to be unbecoming
18
on the part of a responsible Officer of a Bank. The Disciplinary
Authority having taken a lenient view appearing to have passed the
punishment of compulsory retirement instead of dismissal from
service, the same cannot be termed to be disproportionate to the
quantum of offence. For the clear finding of the Enquiry Officer
being confirmed by the Disciplinary Authority, the appellate
authority as well as the revisional authority and for the settled
provision of law that Writ Court cannot seat as an appellate
authority in this situation, this Court has no scope to interfere in
the impugned orders.
9. Taking into account the citations shown by Shri Tripathy
learned counsel for the petitioner this Court finds, for the clear
establishment of the charges and involvement of serious allegation
and for difference in the fact scenario in the cited decisions, none of
the decisions have any application to the case of the petitioner. It is,
on the other hand, this Court finds, the decision in the case of
Ganesh Santa Ram Sirur -Vrs- State Bank of India and others,
reported in AIR 2005 SC 314 supports the case of the Bank as
against the claim of the petitioner that for the recoveries of the
shortfalls being made, there is no loss on the Bank, therefore the
petitioner should have been exonerated. Decision in the case of Ch.
Laxmikantham -Vrs- The Chairman, State Bank of India and
others, reported in 101 (2006) CLT 65, Decision in the case of The
Disciplinary - cum - Regional Manager and others -Vrs- Nikunja
Bihari Pattnaik, reported in 83 (1997) CLT 533 (SC) supports the
case of the Bank on the objection to the interference in the
Disciplinary proceeding on the premises that a Writ Court is not
competent to appreciate the evidence and findings by the Enquiry
authority. Similarly on the question of impugned order being passed
19
by an incompetent officer this Court finds, the Bank has support of
the decision in the case of State of India Versus S. Vijaya Kumar
as reported in (1990) 4 SCC 481 and State Bank of India -Vrs- S.
Vijay Kumar, reported in (1990) 4 SCC 481.
10. It is, in the circumstance this Court finds, there is no merit
involving the Writ Petition, which is hereby dismissed accordingly.
However there is no order as to cost.
................................
(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 17th day of January, 2020/A. Jena, Senior Stenographer.