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2016 DIGILAW 111 (ORI)

Prafulla Kumar Khadenga v. State Bank of India

2016-02-09

B.R.SARANGI

body2016
JUDGMENT Dr. B.R.SARANGI, J. - The petitioner who was working as a Special Assistant of State Bank of India, Kodala Branch has filed this application to quash the order of punishment dated 25.03.2010 under Annexure-7 passed by opposite party no.4-Assistant General Manager (Admn) & Disciplinary Authority, State Bank of India, Administrative Unit, Berhampur (Gm) imposing penalty of compulsory retirement with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment and the order dated 06.07.2010 under Annexure-10 passed by opposite party no.2-Deputy General Manager (O & C-NW)-II, State Bank of India, Local Head Office, Bhubaneswar rejecting his appeal under Annexure-8 by confirming the order passed by the Disciplinary Authority. 2. The short fact of the case in hand is that the petitioner while working as Special Assistant at Surada Branch committed an act of omission and commission which was highly prejudicial and detrimental to the interest of the Bank and amount to gross misconduct as per the provisions of Clause-5 (j) of the Memorandum of Settlement dated 10.04.2002. Accordingly, following charges were framed against him : 1. Utilizing your position in the Branch, you have canvassed and mobilized SBI Life Business for your son Shri Sourabha Khadenga (IA) Code: 10704030 at Surada Branch from the Branch customers. 2. You have not informed to the Bank the fact that Shri Sourabha Khadanga, appointed as Insurance Agent by SBI Life is your son which is in violation of instructions contained in Book of Instructions Volume (1) Annexure (i) which reads as “Canvassing by our employee in support of the business of Insurance Agency etc. owned or managed by a member of his family shall be deemed to be breach of this sub-rule”. 3. You have written draft requisition slips in several occasions for the SBI Life customers and issued drafts in your ID even though you have been entrusted with the work in advances Section. 4. There are high value cash/transfer transactions in your S.B. account which are disproportionate to the known source of your income. The petitioner was called upon to file his reply to the charges mentioned above within a period of seven days, pursuant to which he submitted his reply denying the allegations made against him. 4. There are high value cash/transfer transactions in your S.B. account which are disproportionate to the known source of your income. The petitioner was called upon to file his reply to the charges mentioned above within a period of seven days, pursuant to which he submitted his reply denying the allegations made against him. On receipt of explanation, enquiry officer was appointed and accordingly, the enquiry officer conducted the enquiry and found all the charges levelled against him to have been proved. After completion of enquiry, the enquiry officer submitted his report to opposite party no.4-Disciplinary Authority, who forwarded the same in his letter dated 20.10.2009 to the petitioner asking him to make his representation and the petitioner also made a representation. On consideration of the same, the Disciplinary Authority issued a letter dated 26.02.2010 calling upon him to show-cause why punishment of compulsory retirement with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or regulations prevailing at the relevant time and without disqualification from future employment shall not be imposed. In response to the same, the petitioner submitted a detailed show-cause on 21.03.2010. After due consideration the Disciplinary Authority imposed punishment of compulsory retirement from service with effect from 23.11.2010 and on receipt of the final order of imposition of punishment, the petitioner preferred appeal before the appellate authority on 07.05.2010. The appellate authority on 06.07.2010 after due consideration of the facts and documents rejected the appeal. Hence this case. 3. Mr. A.K. Mishra, learned Senior Counsel appearing for the petitioner urged that due to non-compliance of the principles of natural justice to the extent that the complainants have not been examined as they are Pardanasin ladies and the proceeding so initiated cannot sustain as the preliminary enquiry report having not been supplied to the petitioner the proceeding is vitiated. The punishment has been imposed taking into consideration his past conduct thereby no opportunity of hearing has been given to the petitioner, consequentially the order of punishment cannot sustain. 4. Mr. R.K. Rath, learned Senior Counsel appearing for the opposite party-Bank refuted the allegations made by the learned Senior Counsel for the petitioner and submitted that in the enquiry proceeding the petitioner has never objected nor made any contention that there is non-compliance of the principles of natural justice. 4. Mr. R.K. Rath, learned Senior Counsel appearing for the opposite party-Bank refuted the allegations made by the learned Senior Counsel for the petitioner and submitted that in the enquiry proceeding the petitioner has never objected nor made any contention that there is non-compliance of the principles of natural justice. Although the enquiry officer has stated that the petitioner has not caused anything which has resulted any financial loss to the Bank, if the allegations made can construe as misconduct, the punishment can be imposed and, therefore since the charges have been held to have been proved, the opposite party-Bank is justified in imposing punishment which has been confirmed by the appellate authority and the scope of judicial review being limited, this Hon’ble Court should not interfere with the same. To substantiate his contention, learned Senior Counsel appearing for the Bank has relied upon Disciplinary Authority-cum-Regional Manager and others v Nikunja Bihari Patnaik, (1996) 9 SCC 69 , State Bank of India and another v. Bela Bagchi and others, AIR 2005 SC 3272 , R. Mahalingam v. Chairman, Tamilnadu Public Service Commission and another, (2013) 14 SCC 379 , State Bank of India and others v. T.J. Paul, AIR 1999 SC 1994 , Dhirendra Kumar Mohapatra v. Orissa Forest Development Corporation and others, 2015(Supp.-1) OLR 165 and Padmanabha Gouda v. Orissa Forest Corporation and others, 2015((I) OLR 54. 5. On the basis of the facts pleaded above, it appears that the petitioner was actively involved in canvassing the customers of the Bank to promote the SBI Life business in the name of his son who was a student of Khallikote College at the relevant point of time and the same can be understood from 42 draft application forms filled up by the petitioner in his own handwriting in favour of the SBI Life through his I.D although such duty was not entrusted to him. To substantiate such allegation the Bank has provided all such documents such as statement, charge-sheet, enquiry report and also granted adequate opportunity to defend himself. Being a senior employee of the Bank, the petitioner was well aware that the SBI Life business needs to be routed through a CIF but he was consciously putting through his SBI Life business in the name of his son’s Agency thereby he has deprived the Bank of fee based income. Being a senior employee of the Bank, the petitioner was well aware that the SBI Life business needs to be routed through a CIF but he was consciously putting through his SBI Life business in the name of his son’s Agency thereby he has deprived the Bank of fee based income. The petitioner has mobilized substantial amount of premium to the tune of Rs.41.83 lakhs within a short period of seven months in selling SBI Life Policies in the name of his son and in this process he has been benefited by an amount of more than Rs.6,00,000/- as commission which could have been otherwise earned by the Branch, if these policies would have been booked under Bank Insurance Channel. Due to such conduct of the petitioner, the Bank has not only suffered financial loss but also its reputation and good-will have been jeopardized. The very conduct of the petitioner amounts to gross misconduct. Accordingly, charges were levelled against him and in the enquiry proceeding the same having been proved, the disciplinary authority imposed the punishment. More so, three other penalties were inflicted upon the petitioner for various misconducts wherein the Management of the Bank at that particular point of time had taken lenient view against the petitioner by inflicting minor punishment. As such the present conduct of the petitioner indicates that he has committed gross misconduct. Therefore, the punishment of compulsory retirement from service with all financial benefits has been imposed on the petitioner in view of Clause-5 (j) of Disciplinary Action and Procedure for Workmen Staff (Memorandum of Settlement dated 10th April 2002) which defines the expression “gross misconduct” to mean the acts and omissions mentioned therein, one of which is doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss. Since the conduct of the petitioner indicates that he has committed a grave mistake, the punishment so imposed cannot be said to be arbitrary or unreasonable. The contention raised that there was non-compliance of the principles of natural justice in not examining the complainants which has caused prejudice to the petitioner is absolutely misconceived one. Since the conduct of the petitioner indicates that he has committed a grave mistake, the punishment so imposed cannot be said to be arbitrary or unreasonable. The contention raised that there was non-compliance of the principles of natural justice in not examining the complainants which has caused prejudice to the petitioner is absolutely misconceived one. During course of enquiry though the prosecution wanted to examine the complainants as witnesses to substantiate the charges, only two persons were cited as witnesses, namely, Smt. Ranjita Kumari Padhi and Smt. Bishnu Priya Adhikari, but they were not examined. Their husbands were examined on the plea that they were housewives and they do not come out from the house and face the prosecution. That ipso facto cannot be said to be non-compliance of the principles of natural justice. The husbands of the complainants have been examined. It is open to the petitioner to cross-examine those witnesses who deposed/substantiated allegations made by the Bank. If the petitioner did not choose to cross examine such witnesses, that itself cannot be said that there was violation of the principles of natural justice. The further contention has been raised that on the basis of the report of the investigating officer the enquiry officer came to a conclusion though such documents cannot form a part of the enquiry but the documents have been utilized without giving opportunity of hearing, as a result of which there was violation of principles of natural justice. That contention also cannot sustain in view of the fact that when the petitioner was examined by the enquiry officer he candidly admitted as follows: “1. xxx xxx 2. As your son is having SBI Life Insurance Agency, have you informed the fact to Bank/Branch Manager. Not informed. 3. xxx xxx 4. Do you know any SBI Life customers like Sarbashri Sima- chal Adhikari, Surendra Kumar Adhikari, Chiranjibi Adhikari, Smt. Bishnupriya Adhikari. If yes, have you canvassed any business from them for your son. Any other official canvassed SBI Life business on behalf of your son. If yes, any commission paid to him. Yes. I know these customers. No. Shri B.N. Behera, Cash Officer has brought these customers and booked the business in my son’s Agency Code. He has received Rs.15,000/- as commission from my son. 5. It is observed that you have written/prepared some SBI Life Draft vouchers. If yes, any commission paid to him. Yes. I know these customers. No. Shri B.N. Behera, Cash Officer has brought these customers and booked the business in my son’s Agency Code. He has received Rs.15,000/- as commission from my son. 5. It is observed that you have written/prepared some SBI Life Draft vouchers. You have taken interest to issue Drafts by using your ID Password, although you are attached to Advance Section and one SWO is available for issue of Draft. Most of the local customers are less educated. Hence they request for preparing /writing the Draft forms. Being SWO, I use to help them as and when approached. Since my work load in Advance Section is less than the Draft SWO 6. Xxx xxx 7. Where is your son, Sri Saurava Kumar Khadenga. Can I meet him. He is staying at Berhampur and studying in Khallikote College. He is not available at this Centre now. 8. General Remarks, if any: The matter was investigated on 08.03.2007 by Shri Millan Patra, Officer MMGS-III (SBI Life) and I have given my written statement to him. In the meantime, my son’s agency has been cancelled by SBI Life vide letter No. NIL dated 09.04.2007. 6. The candid admission made by the petitioner in his statement that he was mobilizing the business of SBI Life on behalf of his son and the same had not been informed to the Bank/Branch Manager, indicates that the petitioner was acting detrimental to the interest of the Bank and more so the I.D. Password issued to the petitioner for official use to discharge the duty assigned to him has been utilized for his self-gain to the extent to facilitate the SBI Life agency which stood in the name of his son who was studying in Khallikote College. Therefore, no other document is required to be considered to prove the charges levelled against him. 7. In Disciplinary Authority-cum-Regional Manager and others v Nikunja Bihari Patnaik, (1996) 9 SCC 69 , the apex Court held that in acting beyond one’s authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24 of Central Bank of India Officer Employees’ (Discipline and Appeal), 1976. 7. In Disciplinary Authority-cum-Regional Manager and others v Nikunja Bihari Patnaik, (1996) 9 SCC 69 , the apex Court held that in acting beyond one’s authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24 of Central Bank of India Officer Employees’ (Discipline and Appeal), 1976. No further proof of loss is really necessary though as a matter of fact, there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. 8. In R. Mahalingam v. Chairman, Tamilnadu Public Service Commission and another, (2013) 14 SCC 379 , the apex Court held that where enquiry is held in consonance with the prescribed procedure and rules and natural justice and conclusion recorded by disciplinary authority is supported by some tangible evidence, there is no scope for interference with discretion exercised by the disciplinary authority to impose a particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of Court. 9. The apex Court in State Bank of India and others v. T.J. Paul, AIR 1999 SC 1994 held that negligence by bank employee coupled with likelihood of serious loss which is sufficient to constitute gross misconduct and proof of serious loss is not necessary. 10. In Dhirendra Kumar Mohapatra v. Orissa Forest Development Corporation and others, 2015(Supp.-1) OLR 165, this Court has already held that the High Court would ordinarily not interfere with the quantum of punishment and there can be no doubt or dispute that only because the delinquent employee, who was facing a criminal charge was acquitted, the same by itself would not debar the disciplinary authority from initiating a fresh departmental proceeding and/or when a disciplinary proceeding was initiated, to continue with the same. 11. In Padmanabha Gouda v. Orissa Forest Corporation and others, 2015((I) OLR 54, this Court considered while exercising power of judicial review under Article 226 of the Constitution of India, the Court shall not normally interfere with the punishment imposed by the authority nor shall interfere with the quantum of punishment imposed by the authority. It is within the domain of the authority to interfere with such quantum of punishment but not a Court or Tribunal. It is within the domain of the authority to interfere with such quantum of punishment but not a Court or Tribunal. The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited to the extent that if the punishment to be shockingly disproportionate to the charges proved, in that case, the Court may remit the matter back to the disciplinary authority for reconsideration of punishment. But in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. 12. Considering the above law laid down by the apex Court and this Court, there is no dispute that the Court has got limited jurisdiction to interfere with the quantum of punishment in exercise of power under judicial review. More so, the allegation of non-compliance of the principles of natural justice has not been established. This Court therefore refrains from interfering with the quantum of punishment so imposed by the Disciplinary Authority, which has been confirmed by the appellate authority. Both the facts finding authority having come to the definite conclusion by following due procedure that the petitioner has committed misconduct and the punishment has been imposed, the same cannot be interfered with in exercise of extraordinary jurisdiction of this Court. 13. In view of such position, this Court is not inclined to interfere with the impugned order under Annexure-7 dated 25.03.2010 passed by the Disciplinary Authority imposing penalty of Compulsory retirement with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment and the order dated 06.07.2010 under Annexure-9 passed by the appellate authority confirming the order of the Disciplinary Authority. Accordingly, the writ petition filed by the petitioner merits no consideration and the same is dismissed. Petition dismissed.