Kh. Bobi Singh v. State Bank of India — 1995 DIGILAW 204 (GAU)

In this application filed under Article 226 of the Constitution of India the two questions that arise for determination are : (1) whether with the alteration of the provisions of Article 311 (2) under the Forty-second Amendment of the Constitution of India doing away with the opportunity of showing cause against the proposed punishment, the delinquent has lost his right to be entitled to a copy of the report of enquiry in the disciplinary proceedings; and (2) whether a writ of Mandamus as sought for can be granted in the case of an employee of State Bank of India. 2. I have heard Mr. S. Jayanta, the learned counsel appearing on behalf of the petitioner and Mr. RM Nath, the learned counsel appearing on behalf of the respondent Bank. 3. The answer the above questions the facts relevant for the purpose may be stated as under : Shri Kh Bobi Singh, the petitioner herein joined service as Cashier in the Imphal Branch of the State Bank of India in the year 1968 and thereafter he was promoted to the cadre of Officer by the Chief General Manager of the State Bank of India in the year 1977. After a few years he was again promoted to the post of Branch Manager and he was posted as Branch Manager in the Chandel Branch of the State Bank of India in the year 1984 and while he was discharging his duties in such capacity he was removed from the service by an order dated 19.2.1988 contained in Annexure A/3 which was proceeded by a departmental proceeding wherein he was found guilty by the Enquiring Authority for illegal disbursement of a large number of loans amounting to Rs.10 lakhs out of which an amount of Rs.6,18,513 was recovered by strenuous efforts. 4. The charges framed against the petitioner were as under : xxxx xxxxx xxxx 5. Shri KJ Philipose, who conducted the enquiry recorded the evidence adduced by the parties and thereafter by his report dated 16 the October, 1987 contained in Annexure 3 held as follows : "After scrutiny of the evidences brought before me I give my findings as below : Charge No.1 : Allegation No. 1 Proved Allegation No.2 Proved Allegation No.3 Proved Allegation No.4 Partly Proved Allegation No.5 Not Proved Allegation No.6 Not Proved Allegation No.7 Proved Charge No 2 Partly Proved" 6. On receiving the report and findings of the Inquiring Authority (page 28 to 34 in Annexure A/3), the General Manager (Operations), Disciplinary Authority passed the order on 19th February, 1988 imposing upon the petitioner the punishment of 'removal from service' in terms of Rule 49 (g) of the State Bank of India (Supervising Staff) Service Rules. But subsequent to the communication of the aforesaid order of punishment, the General Manager (Operations) by his letter dated 29th April, 1988 (Annexure 5) informed the petitioner that the order of punishment as recorded by him on 19th February, 1988 be treated as non-est and non-operative. Thereafter, the Chief General Manager who is the appointing authority of the petitioner passed order on the same date i.e. 29th April, 1988 imposing the penalty of 'removal from service' in terms of Rule 49 (g) of the State Bank of India (Supervising Staff) Service Rules with effect from 25th May, 1985 (Annexure 4). This order was then communicated to the petitioner by the General Manager (Operations) (Annexure 4). 7. The petitioner has challenged this order of removal stating, inter alia, that although during enquiry he requested the disciplinary authority for production of some necessary documents, those were actually not called for by the disciplinary authority. On the other hand, the disciplinary authority made his findings on the basis of some extraneous materials and thus ignored the principles of natural justice. It is stated that those documents would prove the compelling circumstances under which the petitioner was forced to grant the loans to the borrowers. It is further stated that 70% of the loans so sanctioned by the petitioner was recovered and that the order of removal from service was passed by an authority junior to the appointing authority and as such the order of removal is violative of the provisions of the Rule 50 (i) (ii) of the State Bank of India (Supervising Staff) Service Rules. It was also alleged that both the disciplinary authority as well as the appellate authority acted by taking extraneous materials into consideration and overlooking the relevant materials. It has been further stated that the punishment imposed on the petitioner was not commensurate with the misconduct which has been prove of and the impugned order of termination was also passed violating the provisions of Rules. 8. It has been further stated that the punishment imposed on the petitioner was not commensurate with the misconduct which has been prove of and the impugned order of termination was also passed violating the provisions of Rules. 8. A counter-affidavit was filed by the Desk Officer, State Bank of India, Disciplinary Action Cell wherein it was contended that the documents which were demanded by the petitioner were collected by the Presiding Officer and those were also handed over to the Inquiring Authority and as such the allegation that the documents which were called for by the petitioner during enquiry were not called is not correct. It was further contended that as soon as it was detected that the order of removal dated 19.2.1988 was erroneously passed by the disciplinaty authority the same was rectified and a fresh order was passed by the appointing authority on 29.4.1988 and it was also communicated to the petitioner. It was further stated that the enquiry was held in accordance with the Rules and all opportunities were given to the petitioner and hence the charges being serious in nature the order of removal which was passed by the appointing authority was in consonance with the rules. 9. In the back ground of the facts stated above it is preferable to take up, at first, the question of maintainability of the writ petition. Mr. RM Nath, the learned counsel appearing on behalf of the respondent Bank has quite strenuously argued that this writ petition is not maintainable as the petitioner's services being contractual in character he is not entitled to move the High Court for granting a writ in the nature of Mandamus for setting aside the order of punishment imposed by the appointing authority. In support of his contention Mr. Nath has placed reliance upon a decision of the Supreme Court rendered in the case of Lekhraj Sathramdas Lalvani (in both the appeals) vs. NM Shah, Deputy Custodian cum Managing Officer, Bombay & others (in both the appeals) reported in AIR 1966 SC 334 . In this case their Lordships held that a writ of Mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. In this case their Lordships held that a writ of Mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions, any duty or obligation falling upon a public servant of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution. 10. In the aforesaid case what happended was that the proprietors of two firms styled as 'Adam Hajee Peer Mohd Essack' and 'Hajee Ibrahim Kassam Cochinwala had in the year 1947 migrated to Pakistan and both these firms became vested in the Custodian of Evacuee Properties for the State of Madras under section 8 of the Administration of Evacuee Property Act, 1950. On March 6,1952 the appellant Lekhraj Sathramdas Lalvani was appointed as Manager of the two firms under section 10 (2) (b) of the 1950 Act. The appellant also furnished security of Rs.20,000 before taking possession of the business of the firm as Manager. The Supreme Court in this case held that the appointment of the appellant as a Manager by the Custodian by virtue of his power under section 10 (2) (b) of the Administration of Evacuee Property Act was contractual in nature and hence there was no statutory obligation as between latter and the former. It was therefore, held that the appellant was not entitled to move the High Court for a writ in the nature Mandamus under Article 226 of the Constitution of India. 11. Keeping the above decision in view now, it is to be determined as to whether the petitioner was discharging any statutory obligation/duties. If it is found that the petitioner in his capacity as Branch Manager had statutory obligation then it can be safely concluded that a writ in the nature of Mandamus or appropriate writ under Article 226 of the Constitution of India can be issued. 12. The contention of Mr. If it is found that the petitioner in his capacity as Branch Manager had statutory obligation then it can be safely concluded that a writ in the nature of Mandamus or appropriate writ under Article 226 of the Constitution of India can be issued. 12. The contention of Mr. Nath is that the duties which was being performed by the petitioner were contractual and hence the petitioner is not entitled to invoke the writ jurisdiction of the High Court under Article 226 of the Constitution of India. 13. Mr. S. Jayanta, the learned counsel appearing on behalf of the petitioner has on the other hand submitted that all the Bank employees are public servants and the State Bank of India being controlled by the Central Government all the employees of the State Bank are public servants and the duties performed by them are statutory in nature. A perusal of the provisions of the Act named, the State Bank of India Act, 1955 makes it abundantly clear that it is owned and controlled by the Central Government. The provisions laid down in the Chapter V under the heading 'Management' and the provisions laid down under the heading 'Miscellaneous' in Chapter VIII show that the Central Government in consultation with the Reserve Bank can make Rules to provide for all matters for which provision is necessary. Apart from this, the officer or employee of the State Bank is required to make a declaration of fidelity and secrecy as in the form set out in the Second Schedule before entering upon his duties. Keeping in view of the provisions of the aforesaid Act, I am of the view that the duties performed by a Branch Manager of any Branch of the State Bank of India are statutory in nature and he is to discharge that statutory obligation in his such capacity. The duties which are performed by him are public duties. The contention of Mr. Nath is, therefore, not acceptable. The petitioner is therefore, in my view entitled to move the High Court for granting a writ in the nature of Mandamus or appropriate writ under Article 226 of the Constitution of India. 14. The duties which are performed by him are public duties. The contention of Mr. Nath is, therefore, not acceptable. The petitioner is therefore, in my view entitled to move the High Court for granting a writ in the nature of Mandamus or appropriate writ under Article 226 of the Constitution of India. 14. Coming now to the next question it has to be decided whether non furnishing of the report of the enquiry along with the recommendation, if any, for awarding punishment to be inflicted on the delinquent would be within the rules of natural justice. In other words, the question which needs to be decided is whether non-furnishing of a copy of the enquiry report along with recommendation for punishment violates the rules of natural justice. 15. Mr. Jayanta, the learned counsel appearing on behalf of the petitioner has quite fervently argued that in the present case only a perusal of the facts will make it clear that at first the order of punishment was passed by the General Manager (Operations) who has no authority to pass such an order. Hence, the General Manager by his communication dated 29th April, 1988 informed the petitioner that the punishment as recorded by him by his order dated 19th February, 1988 should be treated as non-est and non-operative. But on the same date the Chief General Manager passed the order of punishment, namely, removal from service without affording any opportunity of hearing to the petitioner and that he was also not given the report the Inquiring Officer along with his recommendation for awarding punishment and hence, the rules of natural justice were very mush violated in the instant case. In support of his contention Mr. Jayanta has placed reliance upon a decision of the Supreme Court in the case of Union of India & others vs. Mohd Ramzan Khan reported in AIR 1991 SC 471 . In the aforesaid case their Lordships under para 15 of the judgment held: "Deletion of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of die report to the delinquent in the matter of making his representation. In the aforesaid case their Lordships under para 15 of the judgment held: "Deletion of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of die report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiring Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report become necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenance by fair procedure. While by law application of natural justice could by totally ruled out or truncated, nothing has been done by the 42nd Amendment which could be taken as keeping natural justice out of the proceedings and the applicability of the rules of natural justice to such an inquiry is not affected by the 42nd Amendment. Therefore supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position." 16. In the present case, it would be quite apparent from the facts I have stated above that it is an admitted fact that the General Manager (Operations) is not the appointing authority who passed the order of punishment at first and when it was alleged that he was not competent to pass such order of punishment he revoked that order by his letter dated 29th April, 1988 (Annexure 5). But it will also appear from the order of punishment that the same penalty which the General Manager awarded to the petitioner was also awarded by the Chief General Manager and that order was also passed on the same date when the General Manager (Operations) informed the petitioner that his order of punishment dated 19th February, 1988 should be treated as non-est and non-operative. It is therefore, clear that the Chief General Manager passed the order in not haste. The records or the counter affidavit do not show that Chief General Manager either heard the petitioner or informed him of the proposed punishment before passing the impugned order of punishment. 17. It would also appear from the enquiry report that Inquiring Officer made findings some of which in favour of the petitioner and some were against him. The position being thus, the authority is required to decide provisionally what punishment should be imposed on the public servant and give him notice accordingly. But in the present case the facts I have stated above will make it crystal clear that such an opportunity was not given to the petitioner. 18. After conclusion of the arguments Mr. RM Nath, the learned counsel appearing on behalf of the respondents Bank filed an application to allow him to submit a few more points. His prayer was allowed. At the time of hearing his further arguments Mr. Nath submitted that all opportunities were given to the petitioner and that after hearing, his appeal was rejected and the petitioner having admitted his guilt there is no scope to say that no opportunity was given to the petitioner before imposing the punishment. 19. In this context, the next point submitted by Mr. Nath is that the petitioner can seek relief by filing a civil suit of competent jurisdiction. But it would be quite apparent from the findings I have made above that the General Manager (Operations) by his letter dated 29th April, 1988 (Annexure A/5) revoked the order of punishment passed on 19th February, 1988 as non-est and non-operative. This order of revocation was passed on 29th April, 1988 and the order of punishment recorded by the Chief General Manager (appointing authority) was a also passed on 29th April, 1988. During his arguments it was also pointed out to Mr. This order of revocation was passed on 29th April, 1988 and the order of punishment recorded by the Chief General Manager (appointing authority) was a also passed on 29th April, 1988. During his arguments it was also pointed out to Mr. Nath that there was no averment whether this order of punishment recorded by the Chief General Manager on 29th April, 1988 was passed before or after the order of revocation was passed by the General Manager (Operations) on the same date i.e. 29th April, 1988. So, what I would like to emphasise is this that the petitioner was not afforded any opportunity of hearing before imposition of the penalty by the Chief General Manager. 20. Hence, in view of the decision of the Supreme Court quoted above I feel no hesitation to come to the conclusion that the punishment imposed on the petitioner by the Chief General Manager by his order dated 29th April, 1988 is not maintainable and accordingly it is set aside. Similarly, order of the appellate authority dismissing his appeal is set aside. The respondents are however, entitled to continue the proceedings in accordance with the law from the stage of supply of the enquiry report in case it is decided that punishment of removal from service is to be awarded. No costs.