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2017 DIGILAW 529 (GAU)

State Bank of India v. Nani Gopal Palit

2017-05-03

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Manojit Bhuyan, J. The sole respondent/writ petitioner while posted as the Branch Manager, Manja Tin Ali Branch of State Bank of India was proceeded against departmentally on charge of having committed irregularities in sanctioning of loans under the Integrated Rural Proggramme (IRDP) and Direct Agricultural Cash Credit Loans under Central Government Scheme, as a result of which the appellant bank was exposed to a loss of Rs.4,40,836.00/-. The solitary charge was subdivided into 5 (five) sets of allegations i.e. Allegation Nos. I to V. On completion of the departmental enquiry, the Inquiry Officer found that the charges under Allegation Nos. I, II, IV and V were not proved and in respect of Allegation No. III, the same was partially proved. An additional charge, which was not part of the charge-memo, was taken into account by the Inquiry Officer in his report dated 26.03.2001. The said additional charge was an addition to the Allegation No. 1 and was held to be proved. On the findings of the Inquiry Officer which were favourable to the sole respondent/writ petitioner, a note of disagreement was expressed by the disciplinary authority, followed by his own conclusion. The sole respondent/writ petitioner was asked to make his response, which was accordingly done. The views of the disciplinary authority together with the Inquiry Report were then placed before the General Manager. By order dated 10.11.2003, the appointing authority while concurring with the views of the disciplinary authority imposed penalty of "Reduction to the beginning of the time scale of pay in JMGS-I for a period of 3 (three) years with further directions that the officer will not earn increments during the period of such reduction and on expiry of such period the reduction will have the effect of postponing further increments of his pay in terms of Rule 67(f) of State Bank of India Officers' Service Rules." The punishment so imposed was affirmed by both the Appellate Authority and the Review Committee. Under the said circumstances, the sole respondent/writ petitioner instituted the related WP(C) 2840/2006. 2. The primary ground of challenge was that the disciplinary authority and the appellate authority could not have reversed/disagreed with the findings of the Inquiry Officer, those which were answered in favour of the delinquent, without assigning reasons for disagreement. Under the said circumstances, the sole respondent/writ petitioner instituted the related WP(C) 2840/2006. 2. The primary ground of challenge was that the disciplinary authority and the appellate authority could not have reversed/disagreed with the findings of the Inquiry Officer, those which were answered in favour of the delinquent, without assigning reasons for disagreement. On this aspect the learned Single Judge held that the failure to disclose any reason amounted to an illegal procedure being followed. The same was also contrary to the law laid down by the Supreme Court in S.P. Malhotra v. Punjab National Bank, reported in (2013) 7 SCC 251 and in the case of Punjab National Bank v. Kunj Behari Misra, reported in (1998) 7 SCC 84 . As regards the adverse findings on the additional charge, the learned Single Judge held that since it was not part of the charge- memo, the same could not have been made the basis of action taken against the delinquent. Observation was also made on the dis-proportionality of the penalty. The writ petition was allowed, primarily for ignoring the law required to be followed while disagreeing with the findings of the Inquiry Officer, by setting aside the order of penalty as well as the orders of the Appellate Authority and the Review Committee. Direction was made to give all service benefits by considering that the sole respondent/writ petitioner stood exonerated on all counts. While making the said direction the learned Single Judge took notice of the fact that the sole respondent/writ petitioner had retired from service as Assistant Manager on 31.12.2010. Aggrieved, the present appeal is laid by the Bank. 3. We have heard Mr. L. Talukdar, learned counsel for the appellant as well as Mr. T. N. Srinivasan and Mr. N. Baruah learned counsel representing sole respondent/writ petitioner. 4. The issue for determination lies in a narrow compass, in that, whether reasons have been assigned and opportunity of hearing afforded to the respondent/writ petitioner by the disciplinary authority and the appointing authority while disagreeing with those findings of the Inquiry Officer which were held not to be proved and found in favour of the delinquent. On a pointed query, Mr. Talukdar could not produce any material to show that reasons had been disclosed and opportunity of hearing was afforded to the delinquent. On a pointed query, Mr. Talukdar could not produce any material to show that reasons had been disclosed and opportunity of hearing was afforded to the delinquent. In this respect, it would be apposite to understand the settled law on the point as to the manner and procedure to be followed while differing with or disagreeing with the findings of the Inquiry Officer. Reference can be made to Punjab National Bank and Others v. Kunj Behari Misra (supra) wherein the Supreme Court held that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give an opportunity to the delinquent officer to represent before it records its findings. This would be in tune with the principles of natural justice, which cannot be denied to the charged officer. In a later decision in Yoginath D Bagde v. State of Maharashtra and Another, reported in (1999) 7 SCC 739 , the Supreme Court observed as follows: "31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and that latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not being about the closure of the enquiry proceeding. The enquiry proceeding would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. 35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra referred to above, were violated. 37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. 37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case." 5. What can be culled out from the views expressed by the Supreme Court in the aforesaid two decisions is that when an enquiry report is in favour of the delinquent officer and the disciplinary authority proposes to differ with such conclusion, it is imperative that the delinquent officer must be given an opportunity of hearing. Mere issuance of a show cause notice would not serve the purpose, in as much as, in a departmental proceeding what is of ultimate importance is the finding of the disciplinary authority and such finding cannot be concluded by wishing away the principles of natural justice. 6. In the instant case, the appellant Bank clearly flouted the law laid down by the Supreme Court in similar situations. In that view of the matter, the penalty imposed on the sole respondent/writ petitioner cannot be allowed to be sustained. The findings and decision of the learned Single Judge do not suffer from any infirmities. 7. Another aspect of the matter is with regard to the consequences that may follow after quashing of the penalty. In that view of the matter, the penalty imposed on the sole respondent/writ petitioner cannot be allowed to be sustained. The findings and decision of the learned Single Judge do not suffer from any infirmities. 7. Another aspect of the matter is with regard to the consequences that may follow after quashing of the penalty. Facts disclose that the sole respondent/writ petitioner retired as an Assistant Manager on 31.12.2010 on attaining the age of superannuation. Substantial number of years have elapsed and it will not be in the interest of justice that at this stage the case should be remanded to the disciplinary authority for the start of another innings. We, therefore, are not inclined to issue any such direction. While dismissing the present appeal, we affirm the decision of the learned Single Judge which had set aside the order imposing penalty and had directed the appellant to give all service benefits to the sole respondent/writ petitioner by considering the delinquent to be exonerated on all counts. 8. In view of the above, the appeal stands dismissed, however, without any order as to cost.