Dattatraya S/O Waman Limaye vs State Of Maharashtra And Ors.
2005 Latest Caselaw 478 Bom

JUDGMENT

N.H. Patil, J.

1. The petitioner is aggrieved by conduction of departmental enquiry against him and consequential imposition of punishment.

2. The petitioner contends that he was appointed as a Cashier in State Bank of India on 22nd October, 1960. He worked in the said capacity till September, 1974. He was promoted as Office In charge at Dondgaon Sub-Office of State Bank of India. Thereafter he was promoted as Officer Grade II. He worked as Accountant for one and half years and was thereafter made Field Officer and was transferred to Dongerkheda. The petitioner was appointed as Branch Officer of Agricultural Development Bank. It is contended that on 1-1-1977 he was promoted as Sub-Accountant and was transferred and posted to Kamgaon Branch. Thereafter the petitioner was transferred from Dongerkheda Agricultural Development Bank and was posted at Aurangabad Branch and while he was serving at Aurangabad he was suspended by an order dated 7-1-1982.

3. A departmental enquiry was instituted against him mainly on four charges which are :

"Charge No. I "That while working as Accountant at Mehakar ADB

(a) He negotiated and credited to his own Savings Bank Account the proceeds of 2 accounts by not negotiable cheques aggregating to Rs. 8,482 which were drawn in favour of Shri Deorao Gopalrao Tale one of the Bank's borrowers although the crop loan of Rs. 10,000 granted to him was overdue for repayment. He thus not only acted in a manner unbecoming of a bank official but also accommodated the borrower to the detriment of the Banks interest.

(b) He issued cheques on his Savings Bank a/c maintained at the Branch without keeping sufficient balance therein and thus acted in a manner unbecoming of an official of the Bank.

Charge No. II : That during his incumbency as Branch Manager, Dongarkheda ADB in complete violation of lending norms of the Bank he sanctioned/disbursed various agricultural loans thereby placing the Bank's interest in jeopardy.

Charge No. HI : That during his tenure as Branch Manager, Dongarkheda Branch, he made advance payment to M/s Sishil Agencies, Nanded, Dealers of Hindustan make tractors on behalf of branch borrowers for purchase of tractor recklessly flouting the Bank's lending norms, as a result of which recovery of the loans is posing a serious problem to the Bank.

Charge No. IV : He failed to ensure that the Log Book of Bank's motor Cycle maintained at Dongerkheda A.D.B. was properly maintained."

4. The enquiry was completed and the disciplinary authority by an order dated 29th June, 1985 imposed major punishment of reduction of salary by 4 stages i.e. from Rs. 1560 to Rs. 1320 with effect from 1-7-1985 in terms of Rule 49(c) of the State Bank of India (Supervising Staff) Service Rules (hereinafter referred to as "the said Rules"). Under Rule 51 of" the said Rules an appeal lay to the Appellate Authority and accordingly the petitioner preferred an appeal which also came to be dismissed.

5. The learned counsel Shri. Shinde appearing for the petitioner submits before us that the enquiry which was conducted against him was illegal and not maintainable. He was not provided with fullest opportunity before the Enquiry Officer or the Disciplinary Authority. The Appellate Authority did not issue any notice to him and decided the appeal ex parte. The review petition was also filed by the petitioner before Appellate Authority which came to be dismissed. On the merits of the matter it was submitted by the learned counsel that a cheque belonging to Mr. Tale was deposited in his account in good faith as Mr. Tale was in need of money urgently. The petitioner had accordingly paid money to Mr. Tale. There was no complaint made by Mr. Tale against the petitioner. There was no mala fide intention on the part of the petitioner to defraud the bank or commit an act of indiscipline in banking business.

6. On the charge of issuance of cheques by the petitioner without sufficient balance in the account it was submitted that the said charge relates to his personal matter and it should not cast any adverse effect on the functioning of the petitioner as a bank employee. He did not commit any lapse and contravention of rules in advancing loans to the agriculturists neither he utilised the motor cycle owned by the bank for the purpose of the banking business, attracting punishment. On the aspect of punishment it was sought to be submitted by the learned counsel that the same is shockingly disproportionate to the misconduct which is alleged against him. The punishment meted out to the petitioner of reduction of salary by four stages is not contemplated under Rule 49.9 of the said Rules. In the end, the learned counsel addressed that the petitioner retired on 30-11-1986 and at the fag end of his life the monetary loss he suffered due to punishment awarded against him be reimbursed by setting aside the impugned orders in the present petition.

7. On behalf of the bank, learned counsel Shri A. R. Joshi submitted that the bank had examined two officers to prove the charges but the petitioner did not examine any witness. The petitioner worked as a Manager of the bank and in other capacities at different times during his service tenure. The charges are proved against the petitioner. The petitioner participated in the enquiry. Therefore, now, he cannot make any grievance that he was not heard by the Inquiry Officer. The petitioner was defended by his nominee in the inquiry who cross examined the witnesses of the bank. As regards Rule 49.9 it was submitted that the punishment imposed on the petitioner is contemplated in Rule 49.9 and, therefore, there is no illegality committed by the authorities in awarding the punishment. The Appellate Authority dismissed the appeal. No show cause notice is contemplated in the rules according to the learned counsel. Even otherwise it was submitted that the petitioner never insisted for hearing before the Appellate Authority specifically.

8. We have considered the rival submissions of the learned counsel appearing for the parties. Rule 49 of the said Rules relates to discipline and appeal. Clause (e) of Rule 49 is regarding major penalties including reduction to a lower grade or post, or to a lower stage in a time scale. Rule 51 of the said Rules provides for a forum of an appeal to the delinquent employee. For the purpose of the facts of the present case the relevant provisions of Rule 51 read thus :

51 (1) An employee may appeal to the Appellate Authority against an order imposing upon him any of the penalties specified in Rule 49 or against the order of suspension referred to in Rule 50A.

(2) An appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the authority whose order is appealed against. The employee may, if he so desires submit an advance copy to the Appellate Authority. The authority whose order is appealed against shall forward the appeal together with its comments and records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified and/or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it deems fit in the circumstances of the case.

Provided that:

(i) If the enhanced penalty which the Appellate Authority proposes to impose is a major penalty specified in Clauses (e), (f), (g) and (h) of Rule 49 and an enquiry as provided in Sub-rule (2) of Rule 50 has not already been held in the case, the Appellate Authority shall direct that such an enquiry be held In accordance with the provisions of Sub-rule (2) of Rule 50 and thereafter consider the records of the inquiry and pass such orders as it may deem proper;

(ii) If the Appellate Authority decided to enhance the punishment but an enquiry has already been held as provided in Sub-rule (2) of Rule 50, the Appellate Authority shall give a show-cause notice to the employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the employee;

(iii) where the enhanced penalty proposed to be imposed is a major penalty specified in Clauses (e), (f), (g) and (h) of Rule 49 and the Appellate Authority is not of the same rank as or higher than the Appointing Authority in respect of the category of the employees to which the employee belongs, it shall submit to the Appointing Authority the record of the proceedings together with its recommendations and the Appointing Authority shall pass such final order on the appeal as it may deem appropriate."

9. Perusal of Rule 51 and in view of the facts and circumstances of the case, we are of the view that even if personal hearing was not accorded by the Appellate Authority to the petitioner, the impugned order would not get vitiated. We place reliance on a judgment of the Apex Court in Ganesh Santra Ram Sirur v. State Bank of India wherein it is observed :

"31. Mr. Salve invited our attention to para 17 of the judgment in State Bank of Patiala v. S.K. Sharma which deals with the opinion of the House of Lords in the United Kingdom. He also drew our attention to S.L. Kapoor v. Jagmohan and Managing Director, ECIL v. B. Karunakar in SCC paras 25, 26 and 28. The decisions relied on and cited above make one thing clear, namely, principles of natural justice cannot be reduced to any hard-and-fast formulae and as said in Russell v. Duke of Norfolk, these principles cannot be put in a straitjacket. Their applicability depends upon the context and facts and circumstances of each case. The objective is to ensure a fair hearing, a fair deal to a person whose rights are going to be affected. In our opinion, the approach and test adopted in Karunakar case should govern all cases where the complaint is not that there was no hearing, no notice, no opportunity and no hearing but one of not affording a proper hearing that is adequate or a full hearing or violation of a procedural rule or requirement covering the enquiry.

32. On proportionality of punishment imposed Mr. Salve cited Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar. In the above case it observed : (SCC p.374, para 9)

"9. In B.C. Chaturvedi v. Union of India it was observed : (SCC p. 762, para 18) '18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.'"

10. The Appellate Authority had addressed the issues which were germane for the just decision of the matter. The reasoning adopted by the Appellate Authority reflects application of mind. The issues raised by the petitioner were considered and, therefore, even if a grievance is made by the petitioner before us that fullest hearing was not accorded to the petitioner we do not find that the order passed by the Appellate Authority would be faulted on the said submissions. Even under the rule providing for filing of an appeal no such stipulation is noticed that petitioner was to be heard by the Appellate Authority before disposal of the appeal.

11. On merits, it is noticed that the charges faced by the petitioner were not trivial and insignificant one. The bank officers and employee are expected to act and discharge their functions in accordance with rules and regulations of the bank. Acting beyond one's authority is by itself a breach of discipline and trust which would amount to a misconduct.

12. The Appellate Authority perused the record of enquiry and it was found that a credit voucher for Rs. 8,482 pertaining to the Saving Bank Account of the petitioner was produced as evidence before the Enquiry Officer which was signed by the petitioner. A copy of ledger sheet of Savings Bank Account of petitioner was also produced. It is observed by the Appellate Authority that the petitioner had admitted in his defence that both the cheques were negotiated by him and the proceeds thereof were credited to his Savings Bank Account. It was further admitted by the petitioner before the Inquiry Officer that the cash was paid to Mr. Tale at his residence and in turn he recovered the money by getting the said cheques endorsed in his favour and crediting the proceeds thereof to his Savings Bank Account. We concur with the findings of the Appellate Authority as such a transaction is irregular and while doing so the petitioner jeopardised the interests of the bank.

13. As regards the other charges concerning re-depositing the amount after purchase of milk cattle it was observed that, the petitioner ought to have ensured that money spent was properly accounted for and the balance left over with the President/Secretary of the Society was credited to the respective borrower's accounts. The petitioner handed over money to third persons instead of handing it over to the Rural Development Officer. One of the charges against the petitioner was that he disbursed loans to illiterate borrowers without insisting on their presence. The petitioner's objection for accepting the handwriting expert's opinion without examining the handwriting expert did not cause any prejudice to the petitioner's case. As regards the non-delivery of the tractor and troller to the borrower by the dealer the Appellate Authority observed that the petitioner ought to have taken possession of the tractor and troller when full cost was paid to the dealer by the bank which was the security for the advance granted to one Mr. Kulkarni and Ors.

14. The other misconduct noticed by the enquiry officer and the Appellate Authority was established by the bank and we are satisfied that the observations and findings reached at by the disciplinary authority and the Appellate Authority do not invite any interference from us.

15. The learned counsel appearing for the petitioner submits that the punishment imposed upon the petitioner was grossly disproportionate to the alleged misconduct. Normally this Court is slow in interfering in the order of punishment meted out to the delinquent employee for the misconduct committed by him. In the present set of circumstances the authorities have considered the submissions advanced by the petitioner, his explanation and have arrived at conclusions which we find to be reasonable, just and proper considering the merits of the matter. We do not find this to be an exceptional case for causing interference in the order of punishment meted out to the petitioner. In the facts of the present case, we do not find that the punishment was grossly disproportionate. The charges levelled against the petitioner relate to the internal discipline of the bank which shall have to be maintained so that the trust of the people at large is maintained in the functioning of the bank. We are, therefore, not inclined to exercise our writ jurisdiction for causing interference in the impugned orders.

16. The petition, therefore, fails and it is accordingly dismissed. Rule is discharged with no order as to cost.