Telangana High Court

Jayant V Selmokar, Hyd vs Chairman, S.B.H., Mumbai 4 Ot on 9 February, 2023

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

               W.P. No. 40501 of 2016
Between:
Jayant V Selmokar
                                           ... Petitioner
                         And

State Bank of India and others
                                        ... Respondents

      JUDGMENT PRONOUNCED ON: 09.02.2023

    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers            :    yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?            :       yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?       :           yes



                                 _________________
                                 SUREPALLI NANDA, J
                                                           SN,J
                                2




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 40501 of 2016
% 09.02.2023

Between:

# Jayant V Selmokar
                                                ... Petitioner
      and
$ State Bank of India and others

                                            .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri V.Satyam Reddy
^Counsel for Respondents: Alluri Krishnam Raju
                          Standing counsel for respondents




? Cases Referred:
1. (1995) 6 SCC 749
2. 2009 (5) ALD 1
                                                                   SN,J
                                 3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                   W.P. No. 40501 of 2016
ORDER:

Heard the learned Counsel for the Petitioner and

the learned Standing Counsel appearing on behalf of

the Respondents.

2. The Petitioner filed this petition seeking Writ of

Mandamus with prayer as follows :

"declaring the findings of 5th respondent the Inquiry Authority dated 07.06.2007 Disciplinary Proceedings of the 4th Respondent bearing NO. DPD/770 dated 12.09.2007 and consequential Order of the 3rd respondent Appellate Authority dated 15.02.2011 communicated through letter dated 12.09.2016 as being illegal, arbitrary, capricious, mala fide not only Violative of Principles of Natural Justice but also Violative of Articles 16 and 21 of Constitution of India Contrary to State Bank of Hyderabad Officers Services Regulations 1979 misuse of powers abuse of process of Law consequentially direct the Respondent No.s 2 to 4 Authorities to reinstate the petitioner into service with all consequential benefits uninterrupted Seniority due promotions".

3. The case of the Petitioner, in brief, is as follows:

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a) The Petitioner had been appointed as Clerk-cum-cashier

at Kavadiguda branch, Hyderabad on 12.12.1992 and was

promoted as J.M.G.S.I and posted to State Bank of

Hyderabad, Subhas Nagar Branch, Nizamabad and was later

posted to extension center at Collectorate, Nizamabad as a

sole in charge officer.

b) Later the extension center on 05.03.2005 was

converted into full fledged branch and the petitioner was

posted as 1st incumbent officer who is responsible for all the

affairs of the branch.

c) Petitioner vide his letter dated 01.06.2006, brought to

the notice of the Assistant General Manager, Region-I

Nizamabad certain irregularities of the branch employees and

the petitioner was instructed to settle the matter.

d) As per the directions of the Assistant General Manager,

Region INizamabad, the petitioner tried to settle as per the

banking procedure the issue but the employees of the branch

evaded the settlement and hence the petitioner had lodged a

complaint on 09.06.2006 to the General Manager, State Bank SN,J

of Hyderabad (i.e., 4th respondent herein) but reasons best

known to the respondents, no action had been initiated.

e) The petitioner had been appointed by the General

Manager, State Bank of Hyderabad (i.e., 4th respondent

herein) as 1st Incumbent Officer at S.B.H Collectorate Branch,

Nizamabad vide circular GB 2004/05/105 dated 05.03.2005.

f) The Petitioner as per H.O. Circular instructions DEP/6

OF 1984 dated 19.05.1984, the petitioner is authorized to

open accounts only at Collectorate Complex Branch,

Nizamabad and vide the H.O. Circular OPD 2002.03-3 dated

09.12.2002 unlimited signing and passing powers are

approved by the Bank Board of Directors. Vide H.O. Circular

GB 93-94/30 dated 26.08.2003, I.B.I.T Transaction are

permitted when there is delay in transfer of funds from one

branch to another branch of S.B.H.

g) The petitioner had been suspended from the service

vide suspension orders dated 17.07.2006 were issued to the

petitioner without conducting any preliminary enquiry or any

complaint from the Bank Authorities or employees as required

under Banking Service Regulations.

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h) A charge sheet dated 21.02.2007 had been issued to

the petitioner on 06.03.2007 levelling 7 imputations/charges.

Disciplinary Proceedings had been initiated dated 16.04.2007

granting 15 days time for submission of explanation. The

petitioner had asked for certain documents for finishing the

reply but the same had been denied.

i) The Inquiry was conducted in a hasty and malafide

manner from 24.04.2007 to 27.04.2007 by the presenting

officer and the Inquiry officer concealing the actual records

submitted the findings of the Disciplinary Authority on

07.06.2006 stating that all the imputations are established.

j) The Disciplinary Authority on 09.08.2007 issued a show

cause notice calling for explanation with reference to earlier

show cause notice dated 05.07.2007 which had not been

communicated to the petitioner at any point of time. The

petitioner had submitted his explanation on 17.08.2007 and

vide his letter dated 20.08.2007 requested to drop further

action.

k) The Disciplinary Authority by proceedings dated

12.09.2007 , without going into the merits of the case or SN,J

considering the explanation of the petitioner had imposed the

penalty of 'compulsory retirement' and further held that the

petitioner is not eligible for payment of allowances as per

service conditions 2002.

l) The petitioner aggrieved by the order of the Disciplinary

Authority had preferred an appeal before the Appellate

Authority (i.e.,The Chief General Manager, State Bank of

Hyderabad) the 3rd respondent herein. The Appellate

Authority, (i.e., 3rd respondent herein) without giving an

opportunity for personal hearing had disposed of the Appeal,

confirming the order of the Disciplinary Authority by order

dated 05.12.2007.

m) Aggrieved by the order of the Appellate Authority, the

petitioner have filed a Writ Petition No. 3270 of 2008 and the

said Writ Petition had been disposed of by setting aside the

order of the Appellate Authority through its order dated

25.10,2007 and remitted the matter to the Appellate

Authority for fresh consideration in accordance with regulation

70(2) of Regulations of 1979.

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n) Petitioner made several representations in pursuance of

the orders of this court but no steps had been taken as

directed by the Court and petitioner had issued a Contempt

notice dated 31.08.2016 on the Appellate Authority. The

Appellate Authority communicated the impugned order on

receipt of the contempt notice, vide letter dated 15.02.2011

through a cover letter dated 21.09.2016.

O) The Appellate Authority on 14.09.2016 had replied to

the contempt notice stating, that the 'impugned

proceedings/order' has already been communicated to the

petitioner, which in reality had not been communicated to the

petitioner at any point of time.

p) Before initiating the Disciplinary Proceedings, a criminal case had already been registered as Crime no. 228 of 2006 against the petitioner, on the file of 1 Town Police Station, Nizamabad under section 403, 209, and 420 of IPC.

q) The same had been taken up by the First-Class

Magistrate cum Special Mobile Court Nizamabad as C.C. No.

145 of 2009 and after due process of trial, the petitioner was

acquitted, finding not guilty of alleged offences by judgment

dated 09.01.2015.

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r) After the acquittal in the case, before the First-Class

Magistrate cum Special Mobile Court Nizamabad, the

petitioner had been approaching the respondent bank,

requesting to reinstate the petitioner with all consequential

benefits as per SBH Officers Service Regulations 69(iv), 7/1

and 8 (a) but to no avail.

s) The Enquiry Officer and the Disciplinary Authority had

not followed the procedure as contemplated under S.B.H

Officers Service Regulations 1979 and as per section 67 and

68, the whole proceedings will be vitiated as reported by the

Division Bench of this court in 2009 (5) ALD.

t) The penalty of 'Compulsory Retirement' is not in

consonance with the evidence, imputations and the

Disciplinary Authority had not applied their individual mind

but confirmed the order of the Inquiry Officer which was even

further confirmed by the Appellate Authority and the same is

contrary to the SBH Officers Service Regulations 1979.

Hence, the said Writ Petition.

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4. Counter Affidavit filed by the Respondents, in

particular, Para No.5 clause (c), (d), and (f), read as

under:

"c) The Enquiring Authority held the preliminary hearing on 09.04.2007 and conducted regular hearings from 24.04.2007 to 27.04.2007. The petitioner was represented by Mr Muhammed Ameruddin, Chief Manager as his defence representative during those hearings the Management was represented by Mr V.Vivekanand, Officer of the Bank as Presenting Officer. The management examined 2 witnesses and marked Ex.ME-1 to ME-33 and defence representative cross- examined the Management witnesses and marked 3 documents DE-1 to DE-3. The Enquiring Authority submitted report dated 07.06.2007, holding that all the charges are established.

d) The Enquiring, Authority elaborately discussed the oral and documentary evidence brought on record and assigned the reasons for the conclusions arrived in regard to each imputation and gave his findings which are supported by the evidence brought on record.

f) The Appellate Authority vide order dt.05-12-2007, dismissed the Appeal preferred by the Petitioner. The said order was questioned by the Petitioner in W.P. No. 3270 of 2008 and the Hon'ble Court set aside the Order dt.05-12-2007 and remitted the Appeal to the Appellate Authority for fresh consideration in accordance with SN,J

Regulation 70(2) and the writ petition was disposed of. In due compliance of the order passed in the said W.P the Appellate Authority passed order afresh in the Appeal preferred by the Petitioner which is impugned in the present writ petition.

PERUSED THE RECORD :

DISCUSSION & CONCLUSION :

5. A bare perusal of the specific averments made in

the counter affidavit filed by the Respondents in

particular para 5, sub-paras (a) to (k) and paras 8 & 9

clearly indicate that the contentions of the Petitioner

that the disciplinary proceedings were not conducted as

per the Officers Service Regulations 1979 is totally

false and incorrect. The Respondent Bank had

conducted the disciplinary proceedings as per the laid

down procedure and on examining the evidential values

of the documents as well as the proofs, the disciplinary

authority passed the orders of compulsory retirement.

The reliance of the counsel for the Petitioner in

particular to para 11 of the judgment dt. 09.01.2015

passed in CC No.145/2009 in the Court of the Judicial

Magistrate of First Class (Special Mobile) Nizamabad SN,J

and contending further that since the petitioner is

acquitted in criminal case it is the duty of the

authorities to reinstate forthwith without any further

disciplinary action is not tenable. In view of the simple

fact that at para 13 of the said judgment clearly

observed that benefit of reasonable doubt shall be

given to the accused and held the accused/petitioner

as not guilty for the offences punishable U/s. 420, 403

and 409 of the Indian Penal Code and acquitted the

petitioner U/s.248(1) of the Criminal Procedure Code.

Moreover, it is evident on perusal of the service

regulations that the same do not provide any

prohibition to conduct disciplinary proceedings

notwithstanding that the criminal complaint is lodged

in respect of the acts which are subject matter of the

charge sheet issued by the disciplinary authority. The

Service Regulations are also silent and do not provide

reconsideration of the penalty imposed in disciplinary

proceedings in the event the Petitioner is acquitted in a

criminal case subsequent to the order passed in

disciplinary proceedings.

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6. The Counsel for the Petitioner further places

reliance on the notice dt. 14.03.2007 of the Assistant

General Manager and 16.04.2007 of the Enquiring

Authority and contends that in view of the fact that in

both the said letters/notices it is clearly mentioned

that the petitioner is not allowed to take copies, the

same is in violation of principles of natural justice and

providing reasonable opportunity. The said contention

is however, negatived by letter dt. 16.04.2007 of the

enquiring authority addressed to the petitioner and a

bare perusal of the same clearly indicates that the

petitioner was permitted to verify the records in the

presence of an officer at the branch but he was not

permitted to take copies, but however, he was

permitted to take note of the same.

7. The Apex Court in the judgment reported in

(1995) 6 SCC 749 in B.C.Chaturvedi vs. Union of India

observed at paras 12, 13, 17 and 18 as under :

12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.

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Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by SN,J

the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa Ors. v. Bidyabhushan Mohapatra [AIR 1963 SC 779] held that having regard to the gravity of the established misconduct, the punishing authority SN,J

had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur [(1972) 2 SCR 218]. It is true that in Bhagat Ram v. State of Himachal Pradesh & Ors. [AIR 1983 SC 454], a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always can interfere with the same. In that case, the finding was that the appellant was to supervise felling of SN,J

the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu [AIR 1989 SC 1137], a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court. while exercising the jurisdiction under Article 136 of the Constitutions, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case (supra), where the court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to SN,J

the relevant facts, it was remitted to the appellate authority to impose appropriate punishment.

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. It 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.

8. The Counsel for the petitioner placed reliance on

judgement reported in 2009 (5) ALD Volume I in K.

Balarama Raju v High Court of Andhra Pradesh,

Hyderabad and another, in particular, paras 27 and 28:

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"27. Now, the point that arises for consideration is as to whether the order of punishment of compulsory retirement imposed on the petitioner requires any interference by this exercising power of judicial review under Article 226 of the Constitution of India?

28. It is noteworthy to state here that normally the High Court under Article 226 would not interfere with the findings recorded at the departmental enquiry by the Disciplinary Authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of an Appellate Authority. Judicial review is limited to the validity of the making process and not the decision. However, this does not mean that in no circumstance can the Court interfere. As held by the Apex Court in the decisions referred supra, the power of judicial review takes in its stride the domestic enquiry as well, and it can interfere with the conclusions only if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or that the findings were perverse, and that the charges cannot be sustained on mere conjectures in the absence of evidence."

9. The Counsel for the Respondents placed reliance

on the judgments given hereunder :

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1. State Bank of Bikaner & Jaipur v Nemi Chand Nalawaya (2011) 4 SCC 584.

2. Management of BHEL v M.Mani (2018) 1 SCC 285

3. Karnataka Poer Transmission Corportion Ltd. V C.Nagaraju and another (2019) 10 SCC 367.

4. Noida Entrepreneurs Associaton v Noida and others (2007) 10 SCC 385.

5. Avatar Singh v Union of India and others (2016) 8 SCC

471.

6. Lalit Popli v Canara Bank and others (2003) 9 SCC 471.

7. Pravin Kumar v Union of India and others (2020) 9 SCC

471.