Shri H.K. Chaudhary vs State Bank Of India
2013 Latest Caselaw 3486 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    W.P.(C) No.3468 /1997
%                                                       7th August, 2013


SHRI H.K. CHAUDHARY                                 ..... Petitioner
                  Through:               Mr. P.R. Chopra, Advocate.

                           versus

STATE BANK OF INDIA                          ..... Respondent

Through: Mr. A.K. Sangal, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner impugns the orders passed by

the Disciplinary Authority whereby petitioner has been visited with the

punishment of dismissal from service. I may note that the petitioner never

appeared in the enquiry proceedings in spite of notice, did not lead his

evidence, did not depose in his favour and hence did not stand the test of

cross-examination. The department on the other hand led evidence and

proved the charges against the petitioner.

2. The following Article of Charges were issued against the

petitioner:-

"STAFF : CLERICAL

It has been decided to initiate disciplinary action against you on account of the following acts of omission and commission and irregularities committed by you while working as Teller at our Seemapuri, Delhi Branch during the period 1989 to 1992.

i) You have availed undernoted advance against various securities which have persistently been running irregular:

D.L. Account No.11/6 against NSCs for Rs.10,000/- present outstanding Rs.15,678.08 as on 30.06.1994.

D.L. Account No.11/7 Clean-Present Outstanding, Since closed on 15.2.1994.

D.L. Account No.11/8 against NSC face value Rs.25,000/- Present Outstanding Rs.35,365.75 as on 30.6.1994.

D.L.Account No.11/15 against NSC Rs.30,000/- Present outstanding Rs.37,480/- as on 30.6.94.

D.L.Account No.11-C-1 Consumer Loan-present outstanding Rs.20,362/- as on 1.7.1994 including interest upto 30.6.1994. Festival Advance-Present Outstanding Rs.3814/- including interest w.e.f 1.9.93 to June, 1994.

ii) You have opened an account No.P-56 of your wife Smt. Pramila Chaudhary on 18.1.91 which was also introduced by yourself and closed on 29.4.91. Unauthorised overdraft of Rs.6,000/- was created on account of payment of cheque No.564030 dated 2.2.91 which was posted and passed by you. Interest amount of Rs.110/- was debited to the account on 29.4.91 but the same was not written in the day book. Later on after the closure of account it was reopened by yourself on 28.10.91 and a Banker cheque for Rs.110/- was issued in the name of Smt. Pramila Chaudhary which was posted, passed and encashed by you.

iii) You availed a scooter loan of Rs.17,000/- but instead of purchasing a scooter, you purchased a car for which you were not entitled. Present outstanding Rs.23,259/- including interest upto 30.6.1994.

iv) You have afforded undernoted Credits to your own account No.P-24 and Shri Kartar Singh, Account No.P-28 by debit to other accounts of constituents without proper authority/debit confirmation from these constituents.

         Date           Amount           Credit             Credited
                                         afforded           to
                                         from
         30.3.90        Rs.11,000/-      STB 71             P-28
         26.4.90        Rs.11,000/-      STB 145            P-28
         29.6.90        Rs.11,000/-      STB 152            P-28
         29.6.90        Rs.18,000/-      STB 152            P-24

v) You opened an account No.P-24 in your name on 27.10.88 and the same was converted into a joint account with Kartar Singh on the strength of a letter dated 14.3.89 which has been signed by you as constituted Power of Attorney of Shri Kartar Singh; overdraft limit of Rs.22,000/- was unauthorizedly sanctioned on this account against TDR No.553100 for Rs.22,000/-.

vi) You extended undue influence in getting an overdraft sanctioned in account No.P-28 in the name of your father namely Shri Kartar Singh. The present outstanding is Rs.21,408/-.

The above charges, if established would amount to gross misconduct in terms of Para 521(4)(d) and (j) of Sastry Award.

You are hereby instructed to submit your explanation in writing to the undersigned within 7 days of the receipt of this Memorandum failing which it shall be presumed that you have nothing to say in your defence and further disciplinary action would be initiated as per service rules.

DISCIPLINARY AUTHORITY ASSISTANT GENERAL MANAGER REGION.IV"

3. Charges (i) and (iii) are not very grave charges because the

amounts could have been recovered from the salary and other dues payable

to the petitioner. So far as Charge No.(ii) is concerned, the same is also a

small charge because the issue was an amount of Rs.110/- and that too for

only a few days. So far as Charge No. (v) is concerned, again the dues of

the bank to the petitioner, can cover the claim of the bank. Of course, the

aforesaid observations I am making solely qua the chargesheet however it

will subsequently transpire that these charges in themselves may not be

grave charges, however, petitioner is not guilty of not only not repaying till

date various loans taken from the bank but also from a Credit Thrift Society

and to which as of today approximately about 7 ½ lacs of rupees would be

due and which would have to be paid by the respondent no.1.

4. I was after hearing the petitioner, prima facie of the opinion

originally on 17.5.2013, that the punishment of dismissal from services may

be violative of doctrine of proportionality, and I thus requested the

department/bank/respondent to re-examine the issue. However, the

competent authority even on re-examination, in view of the charges of

misconduct and fraud against the petitioner, has refused to change the

punishment inflicted upon the petitioner.

5. So far as merits is concerned, and as already stated above,

report of the Enquiry Officer is final because the department led evidence

and proved its case. The petitioner failed to appear in the enquiry

proceedings and did not lead any evidence. Once petitioner led no evidence

and the department has led evidence there is no reason to disbelieve the

findings which are arrived at by the Enquiry Officer.

6. The real issue is the issue as to whether disproportionate

punishment has been imposed upon the petitioner. No doubt the doctrine of

proportionality is now well entrenched in service jurisprudence, however it

has also been held that while deciding whether or not to interfere with the

punishment imposed upon by the Departmental Authorities, Courts should

not interfere unless the judicial conscience of the Court is shocked. In my

opinion, there are three aspects which do not permit me to alter the

punishment of dismissal from service which is imposed upon the petitioner

and give a lesser punishment including of dismissal from service but with

terminal benefits as provided in Rule 6(b).

(i) The first aspect is that even though certain charges were either

minor charges including of taking of loans from the respondent-bank by the

petitioner, however, the petitioner has been less than fair in his dealings

because he never repaid these loans till date. Also, in the additional affidavit

filed by the respondent-bank it is shown that an amount of about

Rs.7,79,515/- is due against the petitioner as on 31.7.2012 to the Credit

Thrift Society from which the petitioner took a loan but till date petitioner

has not repaid the same, and therefore, the respondent-bank would be liable

to pay back this amount to the Hissar District Bank Employees Co-operative

Urban (S.E.) Thrift and Credit Society Limited, Hissar, Haryana. For the

present I am not saying one way or the other on the crystallized liability, but

the only object of stating the aforesaid facts as regards the various loans

having been taken by the petitioner, and they not being repaid back either to

the respondent-bank or to the Credit and Thrift Society, is only to show that

the petitioner has no equity in his favour.

(ii) The second ground which persuades me not to alter the

punishment imposed upon the petitioner is that Charge No.(iv) against the

petitioner was a very serious charge inasmuch as the petitioner wrongly

utilized the amount from the customer of a bank by making debit entries in

the account of the customer. No doubt, these entries were subsequently

squared off, but a banker who holds the position of utmost good faith cannot

act in a manner which would clearly be to defraud the customers of the

bank. If this is permitted, faith of the common man in the banking services

will be hit hard. Bankers deal with public monies and issues with respect to

financial irregularity, have to be viewed very seriously even if ultimately

bank may not be questioned by the customer and there is no financial

liability to the bank.

(iii) The third reason for not reducing the punishment imposed upon

the petitioner is that, petitioner never joined the services of the bank after he

gave his application dated 27.11.1992 for voluntary retirement. Admittedly,

another writ petition was filed by the petitioner to get the voluntary

retirement which was denied to him by the Bank but that writ petition was

dismissed, and therefore finality has been achieved on the aspect that the

petitioner was not entitled to voluntary retirement. If the petitioner was a

scrupulous person, then, petitioner should have joined the services of the

respondent at least after the writ petition was dismissed. No person decides

as per his own convenience when to leave the bank by merely submitting an

application for voluntary retirement or to continue. Surely work of the bank

would suffer if employees at their own convenience without getting sanction

of leave from the bank just fail to report for work. It could not be disputed

that there was no leave which was sanctioned in favour of the petitioner,

whether on medical grounds or any other ground, at the time of the

petitioner giving his application dated 27.11.1992 for voluntary retirement

and thereafter not joining work. Really therefore the petitioner

contumaciously and obdurately has abandoned his services with the bank.

7. Also I may note that since the charges in the present case are of

the period prior to submitting of the application for voluntary retirement on

27.11.1992, really, the application for voluntary retirement was filed to

avoid disciplinary proceedings against the petitioner. Disciplinary

proceedings were initiated subsequently by the chargesheet dated

31.10.1994, but as already stated above, petitioner till his superannuation

age failed to join the services of the bank. I am therefore not inclined in the

facts of the present case to interfere with the punishment of dismissal from

services imposed upon the petitioner.

8. Finally, I must state that it was argued on behalf of the

petitioner that petitioner is justified in not participating in the enquiry

proceedings because the respondent-Bank had decided to entrust the duty of

the Presenting Officer on a bank Manager who was against the petitioner,

and since the petitioner did not have good relations with him, the petitioner

was forced not to appear in the disciplinary proceedings. In my opinion,

this ground totally lacks substance because a Presenting Officer only

represents the bank in the capacity of a Presenting Officer and thus personal

relations are immaterial. There in my opinion in such facts does not arise

any issue of a charged official not appearing in the enquiry proceedings

because of an alleged bias of the Presenting Officer. In law, it is a bias of a

Presiding Officer which may affect the disciplinary proceedings but there

cannot be an issue of any alleged bias of a Presenting Officer on behalf of a

department.

9. In view of the above, there is no merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 07, 2013 Ne