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2016 DIGILAW 91 (GAU)

Lalchhuanawmi v. State Bank of India

2016-02-10

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Michael Zothankhuma, J. Heard Mr. N. Sailo, senior counsel assisted by Mrs. Dinari T. Azyu, counsel for the petitioner. Also heard Mr. S.S. Sharma, senior counsel for the State Bank of India assisted by Mr. Aldrin Lallawmzuala, counsel for all the respondents. 2. The petitioner's case is that in the year 1983 petitioner was appointed as Probationary Officer with the respondent No. 1 and after completion of probation period of two years, he was posted in different branches within the circle in different capacity. In August 2005, petitioner was serving as Branch Manager, SBI at Tawipui South Branch. Petitioner being the only officer posted there was entrusted with all responsibilities of the branch including banking business, deposit mobilisation, sanction of loans, pre sanction & post sanction inspection and survey of the borrower units, field visit, recovery of advances etc. On 10-12-2005, respondent No. 4 placed the writ petitioner under suspension for the alleged charge of absconding from the branch for the period from 13.12.2005 to 16.12.2005 and also for shortage of cash at the branch in the cash balance. Having been suspended, petitioner submitted an application to respondent No. 4 denying all the charges levelled against him contending inter alia that during the period, there was power failure in the branch and accordingly the master system of the branch could not function during the period and as such up to date accounts could not be made for which skeleton services was provided manually to meet the necessity of the customers. The authority concerned declined to accept such explanation of the petitioner. Rather, on 11.8.2006, the petitioner was served a memorandum of charge along with articles of charges for the purpose of holding a departmental inquiry. Writ petitioner replied to the charges denying the same. However, the respondent authority refusing to accept the explanation preferred to hold the departmental enquiry against the petitioner on charges which are stated as under : "Allegation No. 1 : It is alleged that while you were posted as Branch at out Tawipui South Branch during the period from 18.8.2005 to 19.12.2005, you were absconding from your duties from 13.12.2005 to 16.12.2005 without any information either to the Regional Office or to the Branch staff. As a result of your absence the Branch could not function for those days causing a business loss and damage of the image of the Bank to the Public. As a result of your absence the Branch could not function for those days causing a business loss and damage of the image of the Bank to the Public. Allegation No. 2 : You misappropriated an amount of Rs. 1,50,000/- (Rupees one lac fifty thousand) only from the cash balance of the Branch and there was a shortage of Rs. 1,50,000/- in cash balance from 13.12.2005 to 18.12.2005. Allegation No. 3 : You claimed reimbursement for an amount of Rs. 1000/- (Rupees one thousand) only as conveyance bill incurred for going to Lawngtlai Branch with UCP for completion of EOD/SOD for 12.12.2005 whereas the EOD/SOD was done successfully at the Branch on the day itself by 6.00 pm. Allegation No. 4 : You allowed the Branch messenger to operate the cash vault and to take out money in the evening of 12.12.2005 after completion of the EOD for 12.12.2005 and closure of cash. Allegation No. 5 : You were drunk during the office hours on 12.12.2005 hampering the day's work and damaging the image of the Bank." 3. Thereafter the Inquiry Officer submitted his inquiry report dated 6.2.2007 and the copy of which was furnished to the petitioner vide letter dated 12.3.2007. The inquiry report dated 6.2.2007 is to the effect that the Allegation Nos. 1, 4 & 5 stood proved against the petitioner and Allegation Nos. 2 & 3 were not proved against the petitioner. 4. The petitioner submitted his representation dated 26.3.2007 against the letter dated 12.3.2007 and the inquiry report dated 6.2.2007. However, the petitioner was inflicted with the penalty of dismissal in terms of Rules No. 67(J) of SBI(OSR). The period of suspension was to be treated as not on duty. 5. Being aggrieved with the Order of dismissal dated 11.7.2007, the petitioner filed W.P.(C) No. 49 of 2008 in this Court. W.P.(C) No. 49 of 2008 was disposed of vide Judgment & Order dated 4.5.2009 as follows :- "The respondent authorities are also directed to reinstate the writ petitioner (W.P.(c) No. 49 of 2008) in the post held immediately preceding the holding of the departmental inquiry with all consequential benefits including the pay, arrears etc. However, it would be open for the respondent authorities to initiate denovo departmental inquiry against the writ petitioners, it so advised. No cost." 6. However, it would be open for the respondent authorities to initiate denovo departmental inquiry against the writ petitioners, it so advised. No cost." 6. Being aggrieved with the Judgment & Order dated 4.5.2009 passed in W.P.(C) No. 49 of 2008, the respondents filed W.A. No. 25 of 2010. W.A. No. 25 of 2010 was dismissed vide Judgment & Order dated 5.8.2011 with a direction that the direction for denovo inquiry given by the Single Judge should mean that inquiry should be held from the stage of cross-examination of witnesses. 7. Thereafter, the denovo inquiry was again started from the date of cross-examination of witnesses. The denovo inquiry culminated with the enquiry report dated 27.12.2011. The inquiry report dated 27.12.2011 found that allegation Nos. 1 & 2 stood proved against the petitioner and allegation Nos. 3, 4 & 5 were found to be not proved the petitioner. 8. The petitioner was given a copy of the inquiry report dated 27.12.2011 and the petitioner submitted his reply to the same vide letter dated 27.1.2012 stating that in the earlier inquiry report dated 6.2.2007 allegation No. 2 was not proved against the petitioner. However, in the inquiry report dated 27.12.2011, allegation No. 2 stood proved against the petitioner. The petitioner's counsel submits that the respondents could not have come to a different finding in respect of allegation No. 2 when there was no new materials brought forth in the evidence of the witnesses during the de-novo proceedings. The petitioner's counsel also submits that there was no loss made to the Bank as the money had been returned by the loanees. The petitioner's counsel also submits that there is no question of the petitioner having absconded and as such, the finding of having proved allegation No. 1 was fault. The petitioner's counsel submits that the petitioner was on inspection duty at that time. 9. The petitioner's counsel also submits that due to non-availability of power, the branch under bank Master System (a computer device operational system) could not function during such period, only skeleton services were provided manually to its customers to meet their bare necessities and as a part of such services some loans (Govt. 9. The petitioner's counsel also submits that due to non-availability of power, the branch under bank Master System (a computer device operational system) could not function during such period, only skeleton services were provided manually to its customers to meet their bare necessities and as a part of such services some loans (Govt. sponsored KCC loans meant for poor persons) were also disbursed after obtaining authenticated receipt vouchers(withdrawals) as well as other loan documents from such borrowers and those documents were properly kept at the branch (cash withdrawal vouchers were in cash box as bi-date payment) for completion of necessary entries in the books of the Branch through computers on restoration of power following the systems and procedures of the Bank. But a basic conceptual/procedural mistake was committed by the concerned officials while verifying cash balance on 12/12/2005 and thus, the amount of such withdrawals kept in lieu of hard cash paid to the said borrowers were not taken into account while reconciling the cash balance of the branch. But surprisingly, those payment vouchers (existence of which were even confirmed by the PW-1 of the Enquiry proceedings) were taken reportedly at Lawngtlai in absence of the petitioner with the use of duplicate key by the deputed officials, concealing even the existence of such voucher in the cash book to make artificial shortage of cash in the branch for the value of those vouchers under the instructions of Regional Office, Aizawl and therefore, the same vouchers could not be accounted for on the said date. This clearly indicates that the said suspension has been done with malafide intention to tarnish the image of the petitioner and in order to kick him out illegally. Thereafter, the petitioner was given the penalty of dismissal in terms of rules 67(J) of the SBI OSR vide Order dated 22.5.2012. 10. The petitioner thereafter filed statutory appeal under rule 69(2) of the SBI OSR against the Order dated 22.5.2012. The petitioner's appeal was rejected vide Order dated 6.10.2012. Hence, the present writ petition praying for setting aside the inquiry report dated 27.12.2011, dismissal Order dated 28.5.2012 and the Order dated 6.10.2012 rejecting the petitioner's appeal. 11. The petitioner's counsel submits that the charge which has been held to be not proved in the earlier round of enquiry has been held to be proved in the de-novo enquiry whereas there is no change in situation. 11. The petitioner's counsel submits that the charge which has been held to be not proved in the earlier round of enquiry has been held to be proved in the de-novo enquiry whereas there is no change in situation. This is a serious error in law and facts and this has been done with malafide intention and accordingly the enquiry report in respect to that extent is not sustainable and is required to be quashed. He also submits that as far as the charge of absconding is concerned, absconding essentially includes running away and not just mere absence. At the most, the respondents can claim that absence has been proved (though such claim is still under challenge in the present facts and circumstances of the case) but never absconding inasmuch as the petitioner has at no point of time tried to run away and there is no reason to run away and there is more reason for him to remain at station inasmuch as his present service was his and his family's sole livelihood. Further more, the act of removing the KCC vouchers from the present branch to another branch by other officers of the bank has created the situation by which the petitioner had been held to be the culprit. 12. The petitioner's counsel has submitted that even assuming that the there is no legality in the inquiry report dated 27.12.2011, the punishment inflicted is dis-proportionate to the offence. In this regard, the petitioner's counsel has relied upon the Judgment of the Apex Court in Syed Zaheer Hussain v. Union of India and others reported in 1999 9 SCC 86 and in the case of Om Kumar v. Union of India reported in 2001 2 SCC 386 . 13. Mr. S.S. Sharma, senior counsel appearing for the respondents submits that the petitioner absconded from his duty from 13.12.2005 to 16.12.2005 and thereby violated Rules 58(1) and 58(2) of the SBI OSR. He also submits that the petitioner while posted as Branch Manager in SBI, Tawipui South Branch during 18.8.2005 to 19.12.2005 had misappropriated Rs. 1.5 lac between 13.12.2005 up to 18.12.2005.The respondents counsel also submits that the explanation given by the petitioner with respect to him being absent from duty and alleged irregularity in the payment of loan are all false and denied in its entirety. 1.5 lac between 13.12.2005 up to 18.12.2005.The respondents counsel also submits that the explanation given by the petitioner with respect to him being absent from duty and alleged irregularity in the payment of loan are all false and denied in its entirety. The respondents counsel also submits that the petitioner was given opportunity of hearing at all times and there is not defect in the inquiry proceedings. The respondents counsel also submits that the petitioner has not been able to show that there has been material irregularity in the proceedings or that the inquiry proceedings were vitiated. As such, the writ petition is liable to be dismissed. 14. I have heard the learned counsels for the parties. The law is clear that the Court cannot sit in appeal over the decisions made in the disciplinary proceedings. Judicial review would apply only to the decision making process and not to the decision itself. In the present case, the petitioner has not been able to show that as how he has been prejudiced. The petitioner was given an opportunity of being heard and was heard during the disciplinary proceedings. The petitioner's counsel's submission is to the effect that there has been serious error in law and in facts, which has been done with malafide intention. The petitioner's counsel has however not been able to clarify what serious error in law has taken place during the disciplinary proceedings. A perusal of the records shows that the petitioner had been given opportunity of hearing and he has taken part in the proceedings. Thus, I am of the view that there has been no procedural error or irregularity of proceedings during the disciplinary proceedings. 15. The next question there has to be considered is whether the disciplinary proceedings took into account wrong facts and whether the findings of facts were wrong. In the case of Lalit Popli v. Canara Bank reported in 2003 3 SCC 583 it has been held by the Supreme Court in para 17 & 18 as follows :- 17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. 18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot re-appreciate the evidence and substitute its own finding 16. In the case of Bijay Rajkhowa v. State Bank of India & Ors reported in 2007 3GLT 243, it has been held by this Court in para 12 as follows :- "12. "The Apex Court in Apparel Export Promotion Council v. A.K. Chopra ( AIR 1999 SC 625 ) held that once findings of fact, based on appreciation of evidence are recorded the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent for that of the departmental authorities. Para 17 of the Apparel Export Promotion Council's case (supra) is quoted below: "The High Court appears to have overlooked the settled position that in departmental proceedings the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. Once findings of fact, based on appreciation of evidence are recorded the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as Imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned single judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at, Judicial Review, it must be remembered, is directed not against the decision but is confined to the examination of the decision making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, observed. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fall treatment, reaches, on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court." On perusal of the records, I find that witnesses have stated that there was a shortage Rs. 1.5 lacs in the vault and that there was no documents to show that loans were sanctioned on 12.12.2015. 1.5 lacs in the vault and that there was no documents to show that loans were sanctioned on 12.12.2015. The statement of a witness is also to the effect that there are no entries in the Inspection registers to show that unit visit had been undertaken during December, 2005. In view of the settled of law that the High Court should not substitute its own view on recorded findings of fact based on evidence, this Court does not find it proper to re-appreciate the evidence pertaining to the facts of this case. 17. The further question is whether that there was malafides on the part of the authorities while coming to a finding and subsequent Order of dismissal from service, this court will not go into the question of malafide as there is absence of specific instances of malafide in the writ petition and the concerned officials have not been made a party to the present writ proceedings. 18. The further submission of the petitioner's counsel was to the proportionality of the punishment inflicted upon the petitioner. The petitioner's counsel submits that the punishment was disproportionate to the offence. In the case of Om Kumar v. Union of India reported in 2001 2SCC 386, the Supreme Court has held at para 24 as follows :- "24. We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as Wednesbury principles, (See Associated Provincial Picture Houses v. Wednesbury Corpn.). This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the principle of "proportionality" in administrative law was considered exhaustively in Union of India v. Ganayutham where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained." In the case of State of U.P. v. J.P. Saraswat reported in 2011 4 SCC 545 it was held in para 8 as follows :- 8. Any interference on the question of punishment is permissible in very rare cases where the punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. Any interference on the question of punishment is permissible in very rare cases where the punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. In the present case this Court does not find that there has been any malice actuated while arriving at the penalty imposed. The facts set out shows that the action of the delinquent employee is prejudicial to the bank interest. The punishment does not appear to this Court to be unconscionable or perverse. 19. In view of the reasons stated above, this Court sees no reason to allow the writ petition and accordingly, the same is dismissed. No cost.