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2019 DIGILAW 2013 (ALL)

G. B. Saxena v. State Bank of India

2019-08-28

MANISH MATHUR

body2019
ORDER : 1. Heard Sri. Madhu Sudan Srivastava, learned counsel for the petitioner and Sri. Anurag Srivastava, learned counsel appearing on behalf of the opposite parties. 2. The petitioner has challenged the order dated 18.07.2005 dismissing him from service, the order dated 27.10.2005 rejecting his appeal and the order dated 03.08.2006 dismissing the review application of the petitioner. 3. As per the averments made in the writ petition, the petitioner while in service was served with a charge sheet dated 25.06.2004 levelling 8 allegations against him primarily in relation to infraction of procedure pertaining to grant of loan on behalf of the Bank. The said charge sheet was replied to by the petitioner whereafter disciplinary proceedings ensued resulting in the passing of the dismissal order against which the petitioner's appeal and review were also rejected. 4. Sri Madhusudan Srivastava, learned counsel for the petitioner has submitted that the proceedings of the enquiry were vitiated not only on account of deviation from the established norms of natural justice but also against the provisions of the State Bank of India Officers Service Rules (herein after referred to as the Service Rules). 5. Learned counsel for the petitioner has also submitted that even otherwise the punishment meted out is disproportionate to the charges levelled against the delinquent employee. 6. In order to buttress his submissions regarding lacuna in procedure, learned counsel for the petitioner has drawn attention to paragraph 68(2) of the Service Rules which provide for oral and documentary evidence to be adduced by which the articles of charge are proposed to be proved. He has further submitted that the aforesaid paragraph specifically provides for holding of oral enquiry and an opportunity for the delinquent employee to cross-examine the witnesses produced against the delinquent employee. Sri Srivastava has submitted that the enquiry proceedings under challenge have deviated from the aforesaid mandatory provisions since no opportunity was given to the petitioner to cross-examine the relevant witnesses whose statements were relied upon. He has also submitted that even the relevant documents which formed the basis of establishment of charges against the petitioner were never adduced in the enquiry proceedings. 7. He has also submitted that even the relevant documents which formed the basis of establishment of charges against the petitioner were never adduced in the enquiry proceedings. 7. The learned counsel in order to substantiate his arguments, has submitted his written submissions and has relied upon the following judgments:- (i) State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 (ii) Roop Singh Negi vs. Punjab National Bank and Others, AIR 2008 SC (Supp) 921 (iii) M.V. Bijlani vs. Union of India and Others, AIR 2006 SC 3475 (iv) Union of India and Others vs. Mohd. Ramzan Khan, AIR 1991 SC 471 (v) Raj Kumar Srivastava vs. State of U.P. (vi) Syed Mansoor Hasan Rizvi vs. Director, Local Bodies and Others (vii) Kaptan Singh vs. State of U.P. 8. Sri Anurag Srivastava, learned counsel appearing on behalf of the respondent-bank has vehemently denied the submissions of the learned counsel for the petitioner with the submission that ample opportunity of hearing was provided to the petitioner and there was sufficient evidence produced during the enquiry proceedings to indict the petitioner. He has further submitted that in relevant cases, such as the present one, strict compliance of oral enquiry is not required in view of the admission of the petitioner. Learned counsel has further submitted that the enquiry proceedings were held in a completely transparent and fair manner without causing any prejudice to the rights of the petitioner and, therefore, there was no infringement of the service rules. It has also been submitted that this court does not sit in appeal over the findings given by the disciplinary authority and that re-examination of evidence led in disciplinary proceedings is unwarranted and unless there is some perversity, the writ court cannot substitute its judgment in place of the decision of the disciplinary authority. Sri Srivastava has further submitted that when on the question of facts, there is no real dispute and no prejudice has been caused by absence of any formal opportunity of cross-examination, it per se does not invalidate or vitiate the decision arrived at fairly, more so when the party against whom an order has been passed does not dispute the facts and does not demand to test veracity or credibility of the statement against him. 9. 9. The learned counsel in order to substantiate his arguments, has submitted his written submissions and has relied upon the following judgments:- (i) State Bank of India vs. Tarun Kumar Banerjee and Others, (2000) 8 SCC 12 (ii) State of Andhra Pradesh and Others vs. S. Sree Rama Rao, AIR 1963 SC 1723 (iii) K.L. Tripathi vs. State Bank of India and Others, AIR 1984 SC 273 (iv) State Bank of India and Others vs. Narendra Kumar Pandey, AIR 2013 SC 904 (v) Bank of India vs. Apurba Kumar Saha, 1994 (1) SLR 260 (vi) State Bank of India and Others vs. Ramesh Dinkar Punde, (2006) 7 SCC 212 10. Heard learned counsel for the parties and perused the record. 11. It is admitted fact that paragraph 68(2) of the Service Rules would govern the disciplinary proceedings taken by the Bank against the delinquent employees such as the petitioner. Paragraph 68(2) (xiii) pertaining to the conduct of the proceedings is as follows:- "(xiii) On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Bank. The witnesses produced by the Presenting officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the officer. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross-examined, but not on a new matter without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit." 12. A perusal of the enquiry report dated 12.04.2005 which has been brought on record by the opposite parties by means of the supplementary counter affidavit indicates the fact that the charges have been found to be established against the petitioner not only on the basis of any alleged admission on the part of the petitioner but also on the basis of pre-recorded statements of the borrowers, namely, Smt. Pushpa Lata Devi, Smt. Ramjano, Sri Noor Mohammad and the Bank employee Sri V.K. Shukla. However, the enquiry report makes it apparent that the aforesaid persons were never produced as witnesses to substantiate the statements made against the petitioner. However, the enquiry report makes it apparent that the aforesaid persons were never produced as witnesses to substantiate the statements made against the petitioner. It is thus clear that no opportunity of cross-examination of the aforesaid persons was afforded to the petitioner which, therefore, is clearly in conflict with paragraph 68(2) of the Service Rules. The enquiry report further indicates that even at the time of enquiry proceedings, the petitioner had challenged the evidentiary value of the statement of Smt. Pushpa Lata Devi which was, however, rejected. 13. The enquiry report also reveals that the charges against the petitioner have been found to be established by placing reliance on the reports submitted by the petitioner's successor on the post of Branch Manager, Sri Ashutosh Pandey. On the basis of the said reports submitted by Sri Ashutosh Pandey, the enquiry officer has concluded that the loans disbursed by the petitioner were diverted for other purposes and the project for which the loan had been sanctioned was not complete. 14. Such a finding on the basis of inspection report submitted by Sri Ashutosh Pandey clearly forms the basis of establishment of charges against the petitioner but a reading of the entire enquiry report makes it clear that the said person, namely, Sri Ashutosh Pandey has never been produced as a witness during the proceedings either to substantiate his report or for cross examination by the petitioner. The said fact assumes importance in view of the fact that the petitioner had objected to the reliance being placed upon the report of Sri Ashutosh Pandey on the ground that Sri Pandey had earlier also been warned for wrong and casual reporting by the Zonal Officer. The said report had been produced by the petitioner during the enquiry proceedings as Exhibit-D Ex.13/8. However, the said submission of the petitioner had been rejected only on the ground that the said exhibit could not protect the charged officer for lapses committed by him. 15. It is, thus, clear that the enquiry officer has found the charges to be established against the petitioner on the basis of an inspection report submitted by an employee who was never produced in enquiry as a witness and also in the face of the warning letter of the zonal office regarding wrong and casual reporting by such an officer. It is, thus, clear that the enquiry officer has found the charges to be established against the petitioner on the basis of an inspection report submitted by an employee who was never produced in enquiry as a witness and also in the face of the warning letter of the zonal office regarding wrong and casual reporting by such an officer. Once the petitioner had objected to the reliance being placed on the inspection report of Sri Pandey, then it was incumbent upon the enquiry officer to have dealt with the issue thoroughly particularly in view of the warnings issued by the zonal office instead of dealing with the said objections in such a casual and cursory manner. 16. Apart from the statements of the aforesaid persons, various other documents pertaining to the loan accounts of many other borrowers have also been seen by the enquiry officer to hold the charges established against the petitioner but the enquiry report does not indicate as to whether such other borrowers were ever produced as witnesses in order to prove the charges against the petitioner. 17. The aforesaid factors clearly indicate an infraction of the provisions of Service Rules applicable upon the petitioner. Although various other factual discrepancies have also been indicated by learned counsel for the petitioner, the same is not being gone into in view of the settled law that factual disputes cannot be entertained in writ jurisdiction. Similarly, learned counsel for the opposite parties has also indicated various factual aspects of the enquiry report pertaining to the substantiation of charges against the petitioner but the same is also being ignored for the aforesaid reason. 18. Hon'ble the Supreme Court in a catena of decisions including the decision in Roop Singh Negi v. Punjab National Bank (supra) has specifically held that the authority conducting an enquiry against a delinquent employee clearly discharges a quasi-judicial function and is, therefore, required to act in a fair and impartial manner. It is obligatory upon the said authority not only to deal with the reply submitted by the delinquent employee but also a duty is cast upon him to find out the truth of the allegations leveled against the delinquent employee. The purpose of an enquiry is not to establish a delinquent employee guilty of the charges levelled against him. 19. It is obligatory upon the said authority not only to deal with the reply submitted by the delinquent employee but also a duty is cast upon him to find out the truth of the allegations leveled against the delinquent employee. The purpose of an enquiry is not to establish a delinquent employee guilty of the charges levelled against him. 19. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. 20. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more but nothing less. 21. Lord Denning, in the case of Kandaa vs. Govt. of Malaya, 1962 AC 322 has observed that: "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them." 22. In the present case, it is clearly discernible that a fair opportunity of hearing has not been afforded to the petitioner in view of the factors enumerated herein above and as such the disciplinary proceedings are clearly against the provisions of paragraph 68(2) of the Service Rules. It is also relevant that the petitioner objected to the non-adherence of the Rules even at the stage of enquiry proceedings itself, which, however, were rejected for unwarranted reasons. It is also relevant that the petitioner objected to the non-adherence of the Rules even at the stage of enquiry proceedings itself, which, however, were rejected for unwarranted reasons. The non-observance of the principles of natural justice although not taken in appeal were thereafter taken the petitioner in the review application but the same has again been rejected without proper examination of the disciplinary proceedings vis-a-vis the Service Rules. 23. So far as the judgments relied upon by learned counsel for the opposite parties are concerned, a perusal of the judgment rendered by Hon'ble the Supreme Court in State Bank of India vs. Tarun Kumar Banerjee and Others (supra) will make it clear that while Hon'ble the Supreme Court has held that a customer of the bank need not be involved in domestic enquiry as such a course would not be conducive in the interest of the Bank, but the same was in the circumstances of the said case and would not have applicability in the present case where the statement of the customer of the Bank forms the basis of establishment of charges against the petitioner and would, therefore be covered by the judgment rendered by Hon'ble the Supreme Court in the subsequent decision of Roop Singh Negi (supra). 24. The decision in State of Andhra Pradesh and Others vs. S. Sree Rama Rao (supra) pertains to the power of the High Court under Article 226 of the Constitution of India to interfere with the findings recorded in enquiry proceedings. The same would not have any applicability in the present case since this Court has not enquired into the findings of fact recorded in the disciplinary proceedings but has only tested the breach of the provisions of natural justice as envisaged in the service rules. For the same reason, the judgment rendered by Hon'ble the Supreme Court in State Bank of India and Others vs. Ramesh Dinkar Punde (supra) would be inapplicable in the present case. 25. The decision in K.L. Tripathi vs. State Bank of India and Others (supra) on the other hand would be of applicability since Hon'ble the Supreme Court itself has stated that the basic concept is fair play in action administrative, judicial or quasi-judicial. 25. The decision in K.L. Tripathi vs. State Bank of India and Others (supra) on the other hand would be of applicability since Hon'ble the Supreme Court itself has stated that the basic concept is fair play in action administrative, judicial or quasi-judicial. Hon'ble the Supreme Court has held that there is no requirement of cross-examination when on the question of facts there is no dispute and no real prejudice has been caused to a party as such, by absence of any formal opportunity of cross examination. This would be more so when a party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. In the present case, the petitioner even during the enquiry proceedings had clearly disputed the credibility of the statements made/pre-recorded against the petitioner and, therefore since there was a dispute with regard to the said statements, the right to cross-examine such witnesses was inherent and mandatory as held by Hon'ble the Supreme Court itself. 26. The decision in State Bank of India and Others vs. Narendra Kumar Pandey (supra) would also be inapplicable in the circumstances of the present case because of the disciplinary enquiry referred to in the said case was ex parte and in view of the said fact, Hon'ble the Supreme Court held that in an ex parte enquiry, if the charges are borne out from documents, no oral evidence is necessary to prove the charges. It has been held that when the charged officer does not attend the enquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. In the present case, the enquiry was clearly not an ex parte one and the petitioner was fully involved at all stages. For the same reason, the judgment rendered by Hon'ble the Supreme Court in Bank of India vs. Apurba Kumar Saha (supra) would be inapplicable in the present case. 27. A Full Bench of this Court in Asha Ram Verma and Others vs. State of U.P. 2003 (21) Lucknow Civil Decisions 493 has held that although the Evidence Act is not applicable in departmental enquiry but whenever any evidence is produced either oral or documentary and is relied upon, the person concerned should be given opportunity to cross-examine. 27. A Full Bench of this Court in Asha Ram Verma and Others vs. State of U.P. 2003 (21) Lucknow Civil Decisions 493 has held that although the Evidence Act is not applicable in departmental enquiry but whenever any evidence is produced either oral or documentary and is relied upon, the person concerned should be given opportunity to cross-examine. 28. With regard to the submission of learned counsel for the petitioner pertaining to dis-proportionality of punishment, relevant fact pertaining to the present case is that none of the charges imputed against the delinquent employee pertain to any collusive activity for defrauding the Bank or any charge pertaining to embezzlement. At best the charges would indicate negligence or failure to attain the highest standards of administrative ability against the petitioner. Hon'ble the Supreme Court in Union of India and Others vs. J. Ahmed, AIR 1979 SC 1022 has held that it is difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ispo facto constitute misconduct. The relevant paragraph is reproduced hereinafter: "11..........It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ispo facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence......." Applying the aforesaid judgment of Hon'ble the Supreme Court in the present case, it can be seen that dismissal of the petitioner from service is, therefore, exorbitant and disproportionate to the gravity of the charges particularly since there is no allegation that the petitioner was involved in active collusion with the borrowers for causing financial loss to the Bank. 29. No other point was argued by learned counsel for the parties. 30. 29. No other point was argued by learned counsel for the parties. 30. In view of the aforesaid, it is clear that not only are the enquiry proceedings vitiated for non-observance of the principles of natural justice according a fair opportunity to the petitioner to defend himself and on account of violation of paragraph 68(2) of the Service Rules, but also that the punishment imposed is disproportionate to the gravity of the charges. 31. It has been informed that during pendency of the writ petition, the petitioner has subsequently superannuated from service and the service regulations do not prescribe for holding of any disciplinary proceedings after superannuation. Therefore, in view of the judgment of Hon'ble the Supreme Court in Bhagirathi Jena vs. Board of Directors, O.S.F.C. and Others, (1999) 3 SCC 666 no remand for fresh enquiry can be directed. 32. In view of the aforesaid, the writ petition is allowed and a writ in the nature of Certiorari is issued quashing the impugned orders dated 18.07.2005, 27.10.2005 and 03.08.2006 with consequential service benefits to the petitioner.