Orissa High Court

Binay Kumar Padhi vs Chief General Manager on 16 March, 2021

                            ORISSA HIGH COURT : C U T T A C K

                                       W.P.(C) NO.9166 OF 2009

           In the matter of an application under Articles 226 & 227 of the
                                Constitution of India.

        Binay Kumar Padhi                                 : Petitioner

                                 -Versus-

        Chief General Manager
        & Appellate Authority,
        State Bank of India,
        Bhubaneswar & others                            : Opp. Parties


              For Petitioner        :     M/s.S.,Mallick, P.C.Das & M.Mallick

              For O.Ps.1 to 3       :     M/s.P.K.Mohanty, Sr.Advocate, &
                                          P.V.Balkrishna

              For O.P.4            :      None

        PRESENT :-
              THE HONOURABLE MR. JUSTICE BISWANATH RATH

         Date of hearing : 02.03.2021       : Date of Judgment : 16.03.2021


Biswanath Rath, J.        This Writ Petition involves a challenge to the finding

        of the Enquiring Officer, vide Annexure-6, the decision of the

        Disciplinary Authority, vide Annexure-7 and the order passed by the

        Appellate Authority thereby confirming the order of the Disciplinary

        Authority, vide Annexure-9. It is further claimed that on quashing of

        Annexure-6, 7 & 9, there may be direction to reinstate the Petitioner

        in his former post with all service benefits.
                                   2




2.              Undisputed fact goes to show that the Petitioner

joined service as a Cashier in the Opposite Party-Bank way back on

8.11.1974

. He had served in different capacity with different

assignments at various Branches/Offices of the Bank in the

meantime. While serving for more than 34 years and his service was

always found to be satisfactory, the Petitioner for his long tenure of

service applied for releasing him from service under the provision of

"Exit Option Scheme" as introduced by the Bank at the relevant

point of time. It is claimed that the Petitioner's application was

approved with observation that no disciplinary/vigilance case was

pending/contemplated against the Petitioner as on the date of

approval. It is while the matter stood thus and the Petitioner was

lastly posted as Branch Manager of Kantagaon Branch and in

pendency of giving effect to the approval of the Exit Option Scheme

to the Petitioner, he was placed under suspension by Opposite Party

No.3 on 1.2.2006. Explanation was called for from him on 22.3.2006

on the allegations indicated therein without service of Memorandum

of charges, which was however, subsequently served on 23.8.2006.

Based on service of Memorandum of charges, the Petitioner

submitted his Written Statement of defence denying all such

allegations. Being dissatisfied with the Written Statement of defence

of the Petitioner, enquiry was initiated and concluded, however, with

involvement of the Petitioner indicating that out of 11 alleged

imputations of misconduct, 8 imputations were proved/partially

proved, whereas balance 3 imputations failed. It is alleged that the

Disciplinary Authority in complete agreement with the Enquiring

Officer asked the Petitioner to file his show cause response. It is

pleaded that in complete ignorance of the response of the Petitioner

involving the enquiry report, the Disciplinary Authority passed order

of punishment, i.e., dismissal from service by its order dated

7.7.2008, vide Annexure-7. On Appeal at the instance of the

Petitioner, vide Annexure-8, the Appellate Authority dismissed the

Appeal by its order dated 10.2.2009, vide Annexure-9.

3. Assailing the impugned orders, the Petitioner

initially attempted to challenge the order of punishment on the

premises that the punishment amounts to disproportionate to the

quantum of offence involved, second limb of argument is that the

report of the Enquiring Officer remains perverse to the material

documents available on record. Question is also raised on challenge

to the punishment order vis-à-vis initiation of disciplinary

proceeding, if maintainable after the Management took a decision in

approval of the Application of the Petitioner under "Exit Option

Scheme". In course of submission, Sri S.Mallick, learned counsel for

the Petitioner abandoned Ground Nos.2 & 3 but however, continued

to challenge the impugned orders only on Ground No.1. In the

process of submission, Sri Mallick, learned counsel for the Petitioner

taking this Court to each of the imputations and the findings arrived

at by the Enquiring Officer, for the clear finding on failure of

establishing some of the imputations, contended that it is for

exoneration of the Petitioner from some of the imputations, the

punishment of dismissal from service becomes bad. Further taking

this Court to demonstrate the finding on each imputation and also

the extent of loss suffered by the Bank, Sri Mallick, learned counsel

for the Petitioner attempted to establish his claim hereunder and

finally prayed this Court for at least observing that the punishment

of dismissal from service remains disproportionate to the quantum

of offence involved herein.

4. Sri P.K.Mohanty, learned Senior Counsel assisted by

Sri P.V.Balkrishna, learned counsel for Opposite Party Nos.1 to 3 in

his response to the claim of the Petitioner on punishment remains

disproportionate to the nature of offence and taking this Court to the

charges and findings of the Enquiring Officer on each of the charges

contended that even though three of the charges failed but however

eight of the charges got established. Taking this Court to the nature

of charges either fully or partly established, Sri Mohanty, learned

Senior Counsel contended that even taking the charges individually,

each charge since involves serious allegation, establishment of any

of the charges would have warranted dismissal of the Petitioner from

service. It is in this view of the matter, Sri Mohanty, learned Senior

Counsel contended that this is not a case involving punishment

shockingly disproportionate to the nature of offence and thus

requested for dismissal of the Writ Petition.

5. Considering the rival contentions of the Parties, this

Court finds, through Annexure-3 the Petitioner faced the following

charges taken note herein below :-

"I. Shri Padhi sanctioned and disbursed the following loans to the persons who have denied having availed the loan. These persons had, however, availed the loans earlier as per the details given in the annexed list and due to non-payment of the loans, accounts became NPA and the outstandings were written off during the year mentioned against them.

A/c.No.016700 70089, 70537, 70322, 70246, 70717, 70061, 70086

II. Photographs of the Agriculture Cash Credit borrowers have not been obtained by Shri Padhi in any of the cases sanctioned by him during 1999.

01670070089, 70537, 70322, 70246, 70717, 70061

In the undernoted case where the photograph has been obtained, it is also disputed.

A/c.No.01670070086

III. While the undernoted borrower had signed in Oriya in the earlier loan documents, Shri Padhi obtained LTI in the present loan documents although the borrower's name, father's name and village of both the accounts are one and the same.

A/c.No.01670070089

IV. In the following case, Shri Padhi has not obtained any "no due certificate" from the local Cooperative Society.

A/c.No.01670070537

V. Shri Padhi has sanctioned and disbursed loans to the following borrowers, who have reported dead since long. Thus he has sanctioned loans in the names of deceased persons.

A/c.No.01670070411, 70483, 70712, 70600, ACC

VI. The following two proposals were sponsored by Block Office to SBI, Thuamul Rampur Branch for fiancé under SGSY Scheme. Although Block Office had recommended for sanction of Rs.26,000/- each to both the persons Shri Padhi had sanctioned and disbursed Rs.30,000/- each without confirmation of Block Office. Material alterations in the loan amount of Rs.26,000/- have been made and the loan amount has been changed to Rs.30,000/- without authentication.

VII. On perusal of his Savings Bank and Current Account maintained at Thuamul Rampur and Bhawanipatna Evening Branch, large number of cash transactions were observed, which do not commensurate with his known source of income.

a) CA No.77 (Thuamul Rampur) Limit : Rs.3,00,000/-

b) SB A/c.No.01190094141 at Bhawanipatna Evening Branch.

c) CA OD 01090094141 at Bhawanipatna Evening Branch.

d) CA OD 01090094141 was also overdrawn on 31.08.2005 & 30.11.05

VIII. An overdraft limit of Rs.72,000/- was sanctioned on 18.03.2005 to Shri Padhi at Bhawanipatna Evening Branch. The account is irregular since 30.04.2005 and the outstanding in the account is Rs.76741.82 as on 10.05.06.

A/c.No.0167009414100

IX. On verification of Bank Payment Register on 24.08.99, it is noticed that the payment proceeds of 4 different loan account Nos.ACC 2/948, 499, 500, 501 after adjustment were made to one person during his tenure as Branch Manager.

X. In their statements, several borrowers have complained that they had given their land documents to one Shri Durga Ch.Naiak of Thuamul Rampur who was working as a broker of the Branch during his tenure as Branch Manager and the false documents were prepared in collaboration with him for fictitious financing.

01670071124, 05323, 70396, 70978, 70154, 70654

XI. In view of the above irregularities alleged to have been committed by Shri Padhi, he has exposed the Bank to the pecuniary risk and the Bank is likely to be saddled with a financial loss of Rs.4.45 lacs approximately."

Coming back to the consideration of rival

contentions vis-à-vis the findings of the Enquiring Officer against

each of the charges/imputations, this Court finds, the Enquiring

Officer reported as follows :-

"Imputation No.1 - Thus, the Imputation No.1 is partly proved.

Imputation No.2 - In view of what has been mentioned above, the Imputation No.2 is proved in respect of all the accounts.

Imputation No.3 - Hence, the Imputation is considered as proved.

Imputation No.4 - The prosecution has not led any evidence in respect of this Imputation. Hence, the Imputation is considered as not proved.

Imputation No.5 - The Imputation No.5 is partly proved.

Imputation No.6 - Considering the above findings, the Imputation No.6 is partly proved.

Imputation No.7 - Thus, Imputation No.7 is partly proved.

Imputation No.8 - Hence, the Imputation is considered as proved.

Imputation No.9 - Hence, the Imputation is considered as proved.

Imputation No.10 - As such, the allegation is not substantiated and the Imputation is treated as not proved.

Imputation No.11 - Thus, the likely financial loss will be Rs.37,760.00 (Rs.6537 + Rs.31,223)."

In the net result, this Court finds, on analysis of the

findings of the Enquiring Officer on all the Imputations, the

summary of the enquiry report remained as follows :-

"13.Summary of inquiry findings Imputation No. Finding of I.A.

                     1                Partly Proved
                     2                Proved
                     3                Proved
                     4                Not proved
                     5                Partly proved
                     6                Partly proved
                     7(a,b,c)         Proved
                     7(d)             Not proved
                     8                Proved
                     9                Proved
                     10               Not proved
                     11               Rs.37,760.00 (Financial Loss)

6. Considering the allegations of the Petitioner that the

punishment remains disproportionate to the nature of offence, this

Court finds, in a Banking Institution the Petitioner got involved

inasmuch as in eleven Imputations including financial irregularities

or defalcation in several Accounts. There are some Imputations,

which again contain charges involving several Accounts. From out of

eleven Imputations, at least five Imputations are fully proved and

three are partially proved. So each of the Imputations has been

decided. There remains no doubt that every Imputation involves

financial transaction involving the Bank and the Petitioner was

holding a responsible post in a Schedule Bank.

7. Looking to the gravity of allegations and

establishment of as many as eight charges and a proven case of

financial loss, this Court finds, not only there are serious allegations

involving a Bank Officer but there has been also establishment of

many of the serious allegations through a duly constituted

disciplinary proceeding. There is no allegation of violation of natural

justice. It is at this stage, this Court takes into account a decision of

the Hon'ble Supreme Court in Union of India vrs. Sardar

Bahadur reported in (1972) 4 SCC 618, paragraph-15 of which as

follows :-

"15. .........Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court."

Further in the case of B.C. Chaturvedi v. Union of

India, reported in (1995) 6 SCC 749, Hon'ble Supreme Court

reviewed some of the earlier judgments and in SCC p.762, para 18

held as under:

"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."

This Court here finds decision of the Hon'ble

Supreme Court in Rajasthan Tourism Development Corporation

Limited and another Vrs. Jai Raj Singh Chauhan, reported in

(2011) 13 SCC 541 has also clear support to the case of the

Opposite Parties.

Further in the case of State Bank of India Vrs.

Ram Lal Bhaskar and another, reported in (2011) 10 SCC 249, in

paragraphs-12 and 13 of the above judgment, Hon'ble Supreme

Court observed as under:

"12. This Court has held in State of A.P. v. S. Sree Rama Rao, reported in AIR 1963 SC 1723 at pp.1726- 27, para 7).

7. ..... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and to arrive at an independent finding on the evidence."

13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re- appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent no.1 do not constitute any 19 misconduct and that Respondent no.1 was not guilty of any misconduct.

In the case of State Bank of Bikaner & Jaipur

vrs. Nemi Chand Nalwaya, reported in (2011) 4 SCC 584, Hon'ble

Supreme Court in paragraph-7 held as under:

7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another

view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C.Chaturvedi v. Union of India, reported in (1995) 6 SCC 749, Union of India v. G.Ganayutham, reported in (1997) 7 SCC 463, Bank of India v. Degala Suryanarayana, reported in (1999) 5 SCC 762 and High Court of Judicature at Bombay v. Shashikant S. Patil, reported in (2000) 1 SCC 416).

From the above, this Court finds there is little scope

available with the High Court to re-examine or re-appreciate the

evidence and materials involving the enquiry report to find out if all

or some of the imputations have been established or not. Similarly

in the case of South Indian Cashew Factories Workers' Union

vrs. Kerala State Cashew Development Corporation Ltd. and

others, reported in (2006) 5 SCC 201, this Court finds the Hon'ble

Supreme Court in paragraphs-11, 12 and 14 observed as follows :

11. In Delhi Cloth and General Mills Co. Ltd. v. Labour Court, reported in (1970) 1 LLJ 23 (SC), this Court has held that merely because the enquiry officer is an employee of the management it cannot lead to the assumption that he is bound to decide the case in favour of the management.

12. In Saran Motors (P) Ltd. v. Vishwanath, reported in (1964) 2 LLJ 139 (SC), this Court held as follows: (LLJ p. 141) "It is well known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer."

13. xx xx xx.

14. The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he was biased. The plea that the enquiry officer was biased was not raised during the enquiry or pleadings before the Labour Court or in the earlier proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved before the adjudicator. Such a plea was significantly absent before the Labour Court. We also note that the Labour Court itself found that the enquiry officer relied on the evidence adduced in the enquiry and his findings were not perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that the report is biased. In TELCO v. S.C. Prasad, this Court held that: (SCC pp. 380-81, para 13)

"13. Industrial Tribunals, while considering the findings of domestic enquiries, must bear in mind that persons 21 appointed to hold such enquiries are not lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do not prevail. Such findings are not to be lightly brushed aside merely because the enquiry officers, while writing their reports, have mentioned facts which are not strictly borne out by the evidence before them."

This Court here also takes into account the decision

of this Court in Sunil Kumar Mohanty vrs. Kalahandi Anchalika

Gramya Bank & Others reported in 2020 (II) ILR-CUT- 581, where

in similar situation this Court has declined to entertain the plea of

punishment disproportionate to the nature of offence.

8. It is in this view of the settled legal position and for

clear establishment of nine Imputations involving the charges

involved herein, this Court finds no infirmity either in the report or

in the order of the Disciplinary Authority or in the appellate order,

vide Annexure-6, 7 & 9 respectively, for which this Court dismisses

the Writ Petition. However, there is no order as to cost.

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