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2004 DIGILAW 211 (GAU)

Swapan Kumar Sarkar v. State Bank of India

2004-03-24

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. J.M. Choudhury, learned senior counsel for the Petitioner and Mr. A.H. Bhattacharyya, learned Counsel for the State Bank of India. 2. The Petitioner before us Swapan Kr. Sarkar is an employee of the State Bank of India. While he was serving at Dhodar Ali, Mariani branch he was subjected to disciplinary proceeding in respect of the following charge: While you were posted as Field Officer at State Bank of India, Pasighat Branch, you misappropriated (Shri R.A. Sharma's (Borrower) money and utilised for your own benefit for 17 months. You also unauthorisedly permitted series of drawings on the Cash Credit A/c No. CC/115 of Shri Shambhu Nath Jha in contravention of Bank's rules. Thus, you have acted contrary to the interest of the Bank and violated Rule 50(1) and 50(4) of State Bank of India Officers' Service Rules which are applicable to you. Imputation of lapses on the basis of which the above charges are based are shown in the attached Annexure-II. The Petitioner contested the said proceeding and thereafter enquiry report was submitted and subsequently, the appointment authority imposed punishment of removal from service. 3. Mr. Choudhury, learned Counsel for the Petitioner has not challenged the legality or otherwise of the enquiry. The sole grievance of the Petitioner is that the disciplinary authority on the basis of enquiry proposed to inflict penalty of Withholding of 2 (Two) Increments with cumulative effect on Sri S.K. Sarkar, JMGS-I to meet the ends of Justice." It is submitted that the disciplinary authority, however, sought advice from the head office in the matter and thereafter, the appointing authority imposed the present punishment. The Petitioner has made a specific allegation against the employee in the writ petition and in support of the same, they have produced a copy of the letter No. DPS/99-2000/310 dated 15.9.99 signed by Deputy General Manager (Disciplinary Authority). 4. We have perused the said letter. The relevant portion of the letter reads as follows: Para-2: In view of the fact that Sri Sarkar did misappropriate customer's money for long 17 months and thereafter deposited the money alongwith interest only when the complainant lodged the complaint in writing and also in view of the fact that he committed procedural lapses and irregularities in handling the related loan account where the present outstanding is Rs. 91,904.34. 91,904.34. I propose to inflict the penalty of 'with holding of 2 (two) increments with cumulative effect' on Sri S.K, Sarkar, JMGS-I to meet the ends of justice. 5. Rules 67 of the State Bank of India Officers Service Rules reads as follows: Penalties - 67 Without prejudice to any other provisions contained in these rules, any one or more of the following penalties may be imposed on an officer, for an act of misconduct or for any other good and sufficient reason. Minor Penalties- (a) Censure; (b) withholding of increments of pay with or without cumulative effect; (c) withholding of promotion; (d) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders. Major Penalties - (e) reduction to a lower grade or post, or to a lower stage in a time scale; (f) compulsory retirement; (g) removal from service; (h) dismissal 6. Rule 68(3) of the above service Rules reads as follows: (iii) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Rule 67 should be imposed on the officer, it shall, notwithstanding anything contained in Sub-rule (4), make an order imposing such penalty. Provides that where the Disciplinary Authority is of the opinion that the penalty to be imposed is any of the major penalties specified in Clauses (e), (f), (g) and (h) of Rule 67 and if it is lower in rank to the Appointing Authority in respect of the category of officers to which the officer belongs, it shall submit to the Appointing Authority the records of the enquiry specified in Clauses (xxi)(b) of Sub-rule (2), together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate. 7. We find sufficient force in the submission of Mr. Choudhury that under Sub-clause 3 of Rule 68, the power to impose punishment is exclusively on the disciplinary authority except in cases covered by the proviso in the said Sub-rule. 7. We find sufficient force in the submission of Mr. Choudhury that under Sub-clause 3 of Rule 68, the power to impose punishment is exclusively on the disciplinary authority except in cases covered by the proviso in the said Sub-rule. As the punishment proposed by the disciplinary authority was covered by Clause (b) only and not covered by Clause (e), (f), (g) and (h) of Rule 67, there was no scope on the part of the disciplinary authority to seek advice or to surrender to the appointing authority. 8. Clause 12.5.3 of the Vigilance Manual of the State Bank of India reads as follows: 12.5.3 The disciplinary authority, in exercise of his quasi-judicial powers, may issue an order imposing a major or a minor penalty on the CO; or exonerate him of the charges, if in its opinion, none of the charge has been proved or what has been proved, is non-actionable. He may remit the case for further inquiry if he considers that there are grave lacunae or procedural defects which vitiate the inquiry. The fact that the inquiry has gone in favour of the CO or the evidence led in the inquiry has gaps, should not be a reason for remitting the case for further inquiry (Dwaraka Chand v. State of Rajasthan AIR 1959 Raj. 38). In such a case, the disciplinary authority may disagree with the IO's findings. The final order passed by the disciplinary authority should be a well reasoned speaking order. 9. The provisions clearly shows that the power to impose minor penalty was on the disciplinary authority. We also find that the above power is quasi-judicial in nature and the law is well settled that where the quasi judicial authority is invested with the power to take a decision and to pass certain orders, it should do as per its own conscience and should not allow it to be influenced in any manner by any higher authorities. 10. In the case of Orient Paper Milk Ltd. v. Union of India reported in 1969 SC 48, the Hon'ble Supreme Court held that: 8. If the power exercised by the Collector was a quasi judicial power-as we hold it to be that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. If the power exercised by the Collector was a quasi judicial power-as we hold it to be that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that die assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be in the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. 11. In view of what has been Stated above, we find that the appointing authority has no jurisdiction to impose the punishment of removal from service on the delinquent. Accordingly, the impugned order dated 15.9.99 imposing the punishment of removal from service is quashed and set aside and the matter is remitted back to the disciplinary authority i.e. Deputy General Manager (Vigilance) to pass necessary orders awarding penalty in accordance with letter dated 15.9.99. 12. The writ petition stands disposed of accordingly. No costs.