S. Elhance vs State Bank Of India
2013 Latest Caselaw 675 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     LPA 84/2013
      S. ELHANCE                                          ..... Appellant
                          Through :    Mr. Sidharth Mittal, Adv.

                          versus

      STATE BANK OF INDIA                                ..... Respondent
                   Through :           Mr. Rajiv Kapoor, Adv. for R-1.

    CORAM:
    HON'BLE THE CHIEF JUSTICE
    HON'BLE MR. JUSTICE V.K. JAIN
                        ORDER

% 12.02.2013 CM 2508/2013(exemption)

Allowed, subject to all just exceptions.

The application stands disposed of.

LPA 84/2013 & CM 2509/2013(delay in filing appeal for eight days) The respondent served a chargesheet upon the appellant in terms of

Rule 50(A)(i) of SBI (Supervisory) Staff Service Rules. The said

chargesheet contained four allegations against the appellant. On receipt of

the report of the Inquiry Officer, the Disciplinary Authority vide order dated

27th April, 1993, concurred with the finding recorded by the Inquiry Officer

expect on part of charges No.3 and 4 whereby the Inquiry Officer had also

held the appellant guilty of claiming fictitious medical bill. The

Disciplinary Authority passed an order removing the appellant from service.

Being aggrieved, the appellant preferred an appeal but during pendency of

the said appeal, he also filed W.P.(C) No. 4901/1993 before this Court.

During pendency of the aforesaid writ petition, the appeal preferred by the

appellant was dismissed vide order dated 11th February, 1994.

2. Vide order dated 22nd September, 1999, the writ petition filed by the

appellant was disposed of concluding that the finding of the Inquiring

Authority on the third and fourth charge alone had withstood the judicial

scrutiny. The learned Single Judge who passed the aforesaid order was of

the view that the quantum of punishment was required to be looked into

afresh by the Appellate Authority. It was also observed by the learned Judge

that this was a case where irregularity had been found in claiming

reimbursement of medical bill over a period of seven years. It was further

observed that neither the Disciplinary Authority not the Appellate Authority

had considered the proportionality of the punishment though it was for the

Appellate Authority to see as to what would be the appropriate punishment

In the light of only two charges having been established against the appellant. The order removing the appellant from service was accordingly

set aside and the Appellate Authority was directed to consider the

proportionality of punishment and pass an appropriate order.

3. The order dated 22nd September, 2009 was challenged by the

respondent by way of LPA No.21/2010 which came to be dismissed vide

order dated 13th August, 2010. The LPA No.664/2005 which the appellant

had filed was withdrawn by him on 16th September, 2010.

4. In compliance of the order passed by the learned Single Judge on

22nd September, 2009, a fresh order was passed by the Appellate Authority.

The Appellate Authority maintained the penalty of removal of the appellant

from service. Being aggrieved, the appellant filed W.P.(C) No. 8342/2010

challenging the order passed by the Appellate Authority. The aforesaid writ

petition having been dismissed, the appellant is before us by way of this

appeal.

5. Since the finding on charges No.3 & 4 were upheld by the learned

Single Judge vide order dated 22nd September, 2009, the said order became

final on account of LPA No.28/2010 and 665/2010 having been dismissed,

the only issue which the appellant agitates in this appeal is the quantum of punishment awarded to him vide order dated 15th May, 2010.

6. It is settled proposition of law that the Court should not interfere with

the punishment awarded in a departmental proceeding, unless it is shown

that the punishment is so outrageously disproportionate, as to suggest lack of

good faith. While reviewing an order of punishment passed in such

proceedings, the Court cannot substitute itself for the Appellate Authority

and impose a lesser punishment, merely because it considers that the lesser

punishment would be more reasonable as compared to the punishment

imposed by the Disciplinary Authority. The Court or for that matter even

the Tribunal can interfere with the punishment only if it is shown to be so

disproportionate to the nature of the charge against the delinquent official

that no person, acting as a Disciplinary Authority would impose such a

punishment. The following observations made by Supreme Court in

V.Ramana v. A.P.SRTC And Others: (2005) III LLJ 725 SC are pertinent

in this regard:

"The common thread running through in all these decisions is that the court should not interfere with the administrator‟s decision unless it was illogical or suffers from procedural impropriety or was shocking to the

conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."

In B.C.Chaturvedi (supra), Supreme Court, after considering a

Constitution Bench decision in State of Orissa And Others v.

Bidyabhushan Mohapatra: (1963) ILLJ 239 SC and some other decisions,

inter alia held as under:

"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.

7. The learned counsel for the appellant has assailed the order passed by

the Appellate Authority on the ground that though, the Disciplinary

Authority had not accepted the findings of the Inquiry Officer on the whole

of the Charges No.3 and 4, the Appellate Authority has, while awarding the

punishment vide order dated 15.5.2010, proceeded on the assumption as if

the aforesaid charges had been wholly proved and, therefore, the order

passed by him was based upon an incorrect premise. A perusal of the order

dated 15.5.2010 would show that the Appellate Authority was fully

conscious of the order passed by the learned Single Judge on 22.9.2009 in

W.P.(C) No.4901/1993. In fact, the Appellate Authority has specifically

referred to the direction made by the learned Single Judge in the order dated

22.9.2009. This would clearly show that he was aware of the extent to which

the findings on Charges No.3 and 4 was upheld by the learned Single Judge.

The Appellate Authority also referred to the LPA No.28/2010 which the

bank had filed against the order of the learned Single Judge dated 22.9.2010

and the order dated 16.4.2010 passed in the said appeal. Therefore, it cannot

be said that the Appellate Authority was proceeding on the basis of an

incorrect premise with respect to the findings upheld against the appellant.

The fact that the Appellate Authority was fully conscious of the charges

proved against the appellant, is also borne out from the order dated

11.2.1994. The reference to the charges proved against the appellant as

Charges No.3 and 4, appears to be for the sake of convenience only. The

Appellate Authority gave personal hearing to the appellant and noted down

the submissions made by him. Those submissions were dealt with by a

speaking order. The Disciplinary Authority had not accepted the findings

recorded by the Inquiry Officer only with respect to the medical bills being

forged documents. Nowhere has the Appellate Authority stated, in the order

dated 15.5.2010 that the Medical Bills furnished by the appellant were

forged documents, though he produced the Charges No.3 and 4 for the sake

of convenience. The Appellate Authority observed that the incidents quoted in the charges were not a single act but a series of a planned and deliberate

action spread over sufficiently long period of, in different place of postings,

involving a large number of bills. He also noted that the appellant refused to

appear before the Medical Board saying that he had no disease, though he

had taken reimbursement for as many as 52 diseases, which establish his

malafide intention in claiming medical bills for non-existent diseases and

amounts to misusing the medical facilities with a view to make profit out of

it. The Appellate Authority also took into consideration the fact that on an

earlier occasion also, the penalty of withholding of one increment was

imposed upon the appellant for misrepresentation of facts regarding his TA

bills. Therefore, it cannot be said that the penalty order passed by the

Appellate Authority on 15.5.2010 was based on extraneous reasons.

8. Considering the nature of charges against the appellant including that

the claim of the medical reimbursement was not a one-time act but was

spread over a number of years and on more than one places of posting,

which exhibit a pattern in obtaining false reimbursement, the penalty

awarded to the appellant cannot be said to be so disproportionate to the

charges proved against him as to shock the conscious of the Court. We, therefore, find no merit in the appeal and the same is hereby dismissed

without there being any orders as to costs.

CHIEF JUSTICE

V.K. JAIN, J FEBRUARY 12, 2013 sn/rd