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2014 DIGILAW 806 (CAL)

SUBHAS CHANDRA BAR v. STATE BANK OF INDIA

2014-08-22

TAPABRATA CHAKRABORTY

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Judgment Tapabrata Chakraborty, J. This application under Article 226 of the Constitution of India has been preferred challenging the entire disciplinary proceeding initiated on the basis of the charge-sheet dated 16th February, 2006 including the order of the Appellate Authority dated 8th August, 2007. The facts, in a nutshell, are that the petitioner joined on 1st October, 1997 as a Clerk under the State Bank of India (hereinafter referred to as SBI).As a bolt from the blue the petitioner was placed under suspension by an order dated 18th May, 2005 and subsequent thereto a charge-sheet was issued on 16th February, 2006 containing 26 articles of charge. The Inquiring Authority was appointed on 31st March, 2006 and after conclusion of the said enquiry, a report was filed by the Inquiry Officer on 19th September, 2006. The petitioner replied to the said enquiry report and the Disciplinary Authority passed the final order on 2nd January, 2007, imposing a punishment of dismissal. Aggrieved by the said order the petitioner preferred a statutory appeal but the same was also rejected by an order dated 8th August, 2007. By way of a supplementary affidavit, the petitioner has brought on record the entire enquiry proceeding. During pendency of the writ application, the petitioner attain the age of superannuation on 31st October, 2013. Mr. Partha Sarathi Bhattacharya, learned advocate appearing for the petitioner submits that the petitioner recommended only 13 loan applications as per guidelines mentioned in the House Loan Document Set and on the basis of the said recommendation the sanctioning authority, being the Assistant General Manager of the Brabourne Road Branch at Calcutta sanctioned the loan. After issuance of the charge-sheet, the petitioner made a representation dated 5th March, 2006 praying for inspection of the documents. The same was followed by representations dated 17th May, 2006 and 30th May, 2006. The respondents, however, did not respond to the said representations and as such the petitioner made a further representation dated 13th March, 2006 to the Disciplinary Authority, being the respondent no.2 with a prayer for extension of time to enable him to reply to the charge-sheet. But such prayer was rejected by an order dated 30th March, 2006 and on the very next date the said respondent no.2 appointed the Inquiring Authority. But such prayer was rejected by an order dated 30th March, 2006 and on the very next date the said respondent no.2 appointed the Inquiring Authority. After conclusion of the said enquiry, the report was filed on 19th September, 2006 and the same was replied to by the petitioner through a representation dated 11th October, 2006. According to Mr. Bhattacharya, the petitioner was not granted a reasonable opportunity to reply to the charge-sheet and the respondent no.2 illegally rejected the petitioner’s prayer for extension of time by the order dated 30th March, 2006 and the said order is a cryptic one. He draws the attention of this Court to the order of the Disciplinary Authority dated 2nd January, 2007 and submits the Disciplinary Authority did not consider the petitioner’s reply to the enquiry report. The said order does not reveal any reason towards imposition of the penalty, save and except reiteration of the findings of the Inquiry Authority. He further submits that the petitioner preferred a statutory appeal incorporating specifically grounds of challenge but a perusal of the order of the Appellate Authority dated 8th August, 2007 would reveal that the order of rejection of appeal does not stand supported with appropriate reasons, save and except incorporation of a line to the effect that “the penalty order mentions all the charges wherein the appellant was found guilty. ”The right to appeal is a statutory right and it is incumbent upon the Appellate Authority to arrive at a finding after consideration of all facts and records. According to him, the order of the Appellate Authority does not reveal any such endeavour and the appeal has been mechanically rejected through a cryptic order. In support of such submission, reliance was placed upon the following judgments :- a) State of Punjab : Sardar Prakash Singh Badal –vs- V.K. Khanna, reported in AIR 2001 SC 343 . b) Meena Janah –vs-The Deputy Director of Tourism, (Headquarters) Home (Tourism) Department, Government of West Bengal and Ors., reported in 1974 (2) SLR 466 (Cal). c) In re: Subrata Bhattacharya -vs-Bharat Process & Mechanical Engineers & Ors., reported in 1984 (2) CHN 185 . Mr. b) Meena Janah –vs-The Deputy Director of Tourism, (Headquarters) Home (Tourism) Department, Government of West Bengal and Ors., reported in 1974 (2) SLR 466 (Cal). c) In re: Subrata Bhattacharya -vs-Bharat Process & Mechanical Engineers & Ors., reported in 1984 (2) CHN 185 . Mr. Bhattacharya further submits that a perusal of the contents of the charge-sheet would reveal that at the very threshold, the Disciplinary Authority had arrived at a finding to the effect that the petitioner is guilty of the charges and that the authorities have proceeded with a preconceived notion and a mindset to the effect that the petitioner is guilty of all the charges. He has further contended that the copies of the statement of witnesses examined by the Inquiring Authority has not been supplied to the petitioner and the documents in connection of the charge-sheet, upon which reliance was placed by the Inquiring Authority, were not supplied to the petitioner and such withholding of documents maligns the entire disciplinary proceeding. In support of such contention, he has relied upon the following judgments :- 1. The State of Punjab –vs- Bhagat Ram, reported in AIR 1974 SC 2335 . 2. Kashinath Dikshita –vs- Union of India & Others, reported in (1986) 0 AIR(SC) 2118. 3. Indu Bhushan Dwivedi –vs- State of Jharkhand & another, reported in (2010) 11 SCC 278 . Mr. Bhattacharya further submits that in terms of Regulation 68(2)(iii) of the State Bank of Indore Officers’ Service Regulations, 1979 (hereinafter referred to as the said regulations) documents should be furnished and where it is not possible to furnish documents, Disciplinary Authority shall allow the inspection of documents. The fact that documents were not supplied would be evident from the enquiry proceedings at pages 144 and 145 of Supplementary Affidavit. According to him, the provisions of Regulation 68(2)(iii) and Regulation 68(2)(xii) have also been violated by the respondents. He submits that the petitioner was not granted any opportunity to cross-examine the borrowers, the sellers and the inspectors and accordingly the respondents violated the provisions of Regulation 68 (2)(XIII) and Regulation 68(2)(XIV). According to him, the enquiry report is perverse and is a cryptic one and the same is based on conjectures and surmises. In support of such contention, Mr. Bhattacharya places reliance upon the following judgments :- I. Roop Singh Negi –vs- Punjab National Bank & Ors., reported in (2009) 2 SCC 570 . II. According to him, the enquiry report is perverse and is a cryptic one and the same is based on conjectures and surmises. In support of such contention, Mr. Bhattacharya places reliance upon the following judgments :- I. Roop Singh Negi –vs- Punjab National Bank & Ors., reported in (2009) 2 SCC 570 . II. Rattan Lal Sharma –vs- Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School & others., reported in (1993) 4 SCC 10 . III. Anil Kumar –vs- Presiding Officer & others, reported in (1985) 3 SCC 378 . IV. Kuldeep Singh –vs- The Commissioner of Police & Ors., reported in (1999) 2 SCC 10 . In respect of the order of dismissal, Mr. Bhattacharya submits that the punishment imposed is thoroughly disproportionate inasmuch as the petitioner was not the sanctioning authority of the loans and that there had occasioned no monitory loss to the said bank. The regularities, if any, does not warrant the imposition of the major penalty of dismissal from service. In support of such argument as regards that the order of dismissal is disproportionate to the charges, Mr. Bhattacharya has relied upon the following judgments : a. Director (Inspection and Quality Control) Export Inspection Council of India & Ors. –vs- Kalyan Kumar Mitra and another, reported in (1987) 2 CLJ 344 . b. Bhagat Ram –vs- State of H.P. and others, reported in (1983) 2 SCC 442 . As regards the order of the Appellate Authority, Mr. Bhattacharya submits that in terms of Regulation 70(2) the Appellate Authority did not consider whether the findings are justified and there is no indication as to whether penalty is excessive or inadequate. According to him, the Appellate Authority’s order is a nonspeaking one and the issue to the effect that the penalty is disproportionate, has not been considered by the said Appellate Authority. In support of such contention reliance has been placed upon the following judgments :- 1. Narinder Mohan Arya –vs- United India Insurance Co. Ltd. & Ors., reported in (2006) 4 SCC 713 . 2. Deokinandan Sharma –vs-Union of India & Ors., reported in (2001) 5 SCC 340 . 3. A.L. Kalra –vs- The Project and Equipment Corporation of India Ltd., reported in (1984) 3 SCC 316 . Placing reliance upon the affidavit-in-opposition filed by the respondents, Mr. Ltd. & Ors., reported in (2006) 4 SCC 713 . 2. Deokinandan Sharma –vs-Union of India & Ors., reported in (2001) 5 SCC 340 . 3. A.L. Kalra –vs- The Project and Equipment Corporation of India Ltd., reported in (1984) 3 SCC 316 . Placing reliance upon the affidavit-in-opposition filed by the respondents, Mr. Routh submits that ample opportunity was granted to the petitioner to contest the disciplinary proceeding and the petitioner was given inspection of all the documents relied upon by the bank and the petitioner did not raise any objection in course of enquiry as regards non-supply of documents. He further submits that the Inquiry Authority was appointed on 31st March, 2006 and the petitioner was granted permission to avail the assistance of a defence helper and after recording the submissions made by the petitioner and upon considering the documents as exhibited, the enquiry proceeding was concluded on 15th June, 2006 and thereafter a report was filed on 19th September, 2006.The orders passed by the Disciplinary Authority and the Appellate Authority were passed in a strict consonance with the statutory provisions and the records do not reveal any error in the decision making process. Mr. Routh further submits that it is a well-settled proposition of law that the power of the Writ Court to interfere with the disciplinary action is limited and the Writ Court does not, in exercise of power of judicial review, reappreciate the evidence and that the Writ Court cannot sit in appeal over the orders passed by the Disciplinary Authority and the Appellate Authority. Mr. Routh submits that the disciplinary proceeding was conducted in consonance with the said regulations. The charge sheet was issued in terms of Rule 68(2)(ii) of the said Regulation of 1979. The list of witnesses was handed over to the petitioner prior to commencement of hearing before the Inquiring Authority. The authority towards extension of time to file the reply to the charge sheet is a discretionary power of the Disciplinary Authority. There has been no violation of Rule 68(2)(iii) of the said Regulations of 1979 as alleged by the petitioner and no prejudice has been caused to the petitioner. Replying to the allegation of the petitioner to the effect that a perusal of the charge-sheet itself would show that the respondents had a mindset to penalize the petitioner, he submits such allegation of the petitioner is absolutely unfounded. Replying to the allegation of the petitioner to the effect that a perusal of the charge-sheet itself would show that the respondents had a mindset to penalize the petitioner, he submits such allegation of the petitioner is absolutely unfounded. He further submits that the petitioner was allowed to engage his defence counsel and to cross-examine the management witnesses and that Regulation 68 (2)(XI) and (XIV) of the said Regulations of 1979 have been strictly complied with by the respondents. The findings of the Inquiry Authority cannot be said to be perverse and the allegation of the petitioner to that effect, is unsustainable in law. According to Mr. Routh, the Disciplinary Authority has passed the final order incorporating appropriate reasoning and the said order also reveals an independent application of mind on the part of the Disciplinary Authority. So far as the order of the Appellate Authority is concerned, Mr. Routh submits that the same is a reasoned one and that as such no interference is called for. Replying to the contention of Mr. Bhattacharya to the effect that the penalty imposed is disproportionate, Mr. Routh submits that the charges proved against the petitioner are very serious and such activities of the petitioner is most unbecoming of the senior bank officer. In support of the proposition to the effect that the Disciplinary Authority is not required to record elaborate reasons, in the event it has concurred with the Inquiry Officer’s findings, Mr. Routh has relied upon the judgment delivered in the case of National Fertilizer Ltd. & Anr. –vs- P.K. Khanna, reported in (2005) 7 SCC 597 . Mr. Routh contends that a Bank Officer is required to exercise higher standards of honesty and integrity and in support of such contention reliance has been placed upon the following judgments delivered in the case of State Bank of India and Anr. –vs- Bela Bagchi and Ors., reported in (2005) 7 SCC 435 and in the case of State Bank of India & Ors. –vs- Ramesh Dinkar Punde, reported in (2006) 7 SCC 212 . Pertaining to the ambit and scope of judicial review in disciplinary proceedings, reliance has been placed upon the following judgments :- a) K. Vinod Kumar –vs- S. Palanisamy and Others, reported in (2003) 10 SCC 681 . b) Indian Railway Construction Co.Limited –vs- Ajay Kumar, reported in (2003) 4 SCC 579 . Pertaining to the ambit and scope of judicial review in disciplinary proceedings, reliance has been placed upon the following judgments :- a) K. Vinod Kumar –vs- S. Palanisamy and Others, reported in (2003) 10 SCC 681 . b) Indian Railway Construction Co.Limited –vs- Ajay Kumar, reported in (2003) 4 SCC 579 . c) Appareal Export Promotion Council –vs- A.K. Chopra, reported in (1999) 0 AIR(SC) 625. d) Principal Secy. Govt. of A.P. and Anr. –vs- M. Adinarayana, reported in (2004) 12 SCC 579 . e) State Bank of Patiala & Ors. –vs- S.K. Sharma, reported in (1996) 0 AIR(SC) 1669.In the said judgment it has also been held that procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer and that they are conceived in his interest and violation of any such procedural provisions cannot be said to have automatically vitiated the enquiry. Relating to the issue of nature of proof required in a disciplinary proceeding, reliance has been placed upon the following judgment delivered in the case of Lalit Popli –vs- Canara Bank & Ors., reported in (2003) 3 SCC 583 . In support of the proposition that in exercise of jurisdiction under Article 226 of the Constitution of India, the Court cannot reappreciate the entire evidence, reliance has been placed upon the following judgment delivered in the case of Sub-Divisional Officer, Konch –vs- Maharaj Singh, reported in (2003) 9 SCC 191 . In support of his contention that even likelihood of serious loss coupled with negligence is sufficient to bring the case within gross misconduct and that the punishment imposed upon the petitioner is not shockingly disproportionate, Mr. Routh has placed reliance upon the following judgment delivered in the case of Damoh Panna Sagar Rural Regional Bank and Anr. –vs- Munna Lal Jain, reported in (2005) 10 SCC 84 . It is not a requirement of the rules of natural justice that in every case the Appellate Authority should in its order state its own reasons except where the Appellate Authority disagrees with the findings of the Disciplinary Authority. –vs- Munna Lal Jain, reported in (2005) 10 SCC 84 . It is not a requirement of the rules of natural justice that in every case the Appellate Authority should in its order state its own reasons except where the Appellate Authority disagrees with the findings of the Disciplinary Authority. In support of his contention reliance has been placed the following judgments delivered in the case of R.P. Bhatt –vs- Union of India and others, reported in (1986) 2 SCC 651 and in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank –vs- Jagdish Sharan Varshney & Others, reported in (2009) 4 SCC 240 . Mr. Routh has contended that the principle of natural justice needs to be examined in the basic principle of “prejudice caused” and in support of his contention Mr. Routh has placed reliance upon the following judgments delivered in the case of M.S. Mehta – vs- Union of India & Ors., reported in 1999 (6) Supreme 265 , Canara Bank & Ors. –vs- Shri Debasis Das & Ors., reported in (2003) 4 SCC 557 and the judgment delivered in the case of Canara Bank –vs- V.K. Awasthy, reported in (2005) 6 SCC 321 . I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. A perusal of the charge-sheet would reveal that the charges are definite and that the same does not suffer from any vagueness or infirmity. From the language used in the charge-sheet, I do not find that the Disciplinary Authority has proceeded with a closed and biased mind. It is well-settled that a charge-sheet has to be construed in a reasonable manner. Unhappy expressions and or words used in the charge-sheet cannot be regarded as the outcome of closed and prejudged mind of the Disciplinary Authority without considering other relevant factors. Closed and prejudged mind of the Disciplinary Authority cannot be comprehended only from the language and or expressions used in the charge-sheet. The allegation of the petitioner to the effect that he was not granted any opportunity to cross-examine the witnesses is absolutely unfounded inasmuch as the proceedings of the enquiry, as annexed to the supplementary affidavit, would clearly reveal that the petitioner did cross-examine the witnesses. The allegation of the petitioner to the effect that he was not granted any opportunity to cross-examine the witnesses is absolutely unfounded inasmuch as the proceedings of the enquiry, as annexed to the supplementary affidavit, would clearly reveal that the petitioner did cross-examine the witnesses. Record reveals that the petitioner was given ample opportunity to contest the disciplinary proceedings and that there has been no violation of the principles of natural justice. If fairness is shown by the decision-makers to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of its situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. A perusal of the enquiry proceedings as brought on record by the petitioner through a supplementary affidavit reveals that the charges have been corroborated through the depositions of the management witnesses and that the petitioner was given an opportunity to cross-examine the said witnesses and that as such the allegations of violation of the provisions of Regulation 68(2)(xiii) and Regulation 68(2)(xiv) is unsustainable in law. The proceedings have been conducted in strict consonance with the said Regulations of 1979. The detailed report of the Inquiring Authority reveals that the charges have been established through the proved documents and the depositions tendered by the witnesses. The expression ‘sufficiency of evidence’ postulates existence of some evidence which links the charged officer with the misconduct alleged against him and in the instant case the documents reveal that there was a clear nexus of the petitioner with the charges and no procedural irregularity has been committed by the Inquiring Authority, the Disciplinary Authority and the Appellate Authority. It is well-settled that an order of affirmation need not contain elaborate reasons. In the instant case the order of the Appellate Authority reflects application of mind and as such the allegation of the petitioner to the effect that the said order is a cryptic one, is absolutely unfounded. Mr. Bhattacharya has strenuously argued that the punishment imposed is disproportionate and that the said punishment shocks the conscience and that as such the same is liable to be struck down. It is well-settled that any interference with the order of punishment is permissible in very rare cases. Mr. Bhattacharya has strenuously argued that the punishment imposed is disproportionate and that the said punishment shocks the conscience and that as such the same is liable to be struck down. It is well-settled that any interference with the order of punishment is permissible in very rare cases. In the instant case the punishment is not so disproportionate to the established charge, that it would appear unconscionable and actuated with malice. The punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution of India and it is only in an extreme case, where on the face of it there is perversity or irrationality, the punishment will be amenable for interference under the limited scope of judicial review. Measure, magnitude and degree of misconduct needs to be taken into consideration for weighing the proportion. The petitioner’s conduct was reproachable and his understanding of responsibility and adherence to discipline was questionable. Regard being had to the facts involved, the nature of post held by the petitioner and the conduct expected of him, I am of the opinion that the doctrine of proportionality is not invocable in the instant case. For the reasons as discussed above, no interference is called for and the writ application is, accordingly, dismissed. In the facts of the present case, there will be no order as to costs.