Brijendra Kumar Srivastava vs Bhagirath Gramin Bank and others

S. H. A. Raza, J.—Being aggrieved against an order of remo�val from services dated 1711987 and the order dated 19887 by means of which appeal preferred by the petitioner was dismissed, the petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of India.

The petitioner, who was Manager of Bhagirath Gramin Bank at Sitapur was charged that while he was posted as Branch Manager, Sahadatnagar during the period August 1985 to November, 1985 he allowed over�draft to one Anjani Kumar, a businessman, dealiug with Timber at Sitapur to the tune of Rs. 84,800/ beyond his discretionary power. In this way he did not follow the standing instructions/orders of the Head Office in case of allowing overdraft in current account. He was further charged that while he was posted at Bahadurganj Branch during the period between March, 84 and April, 1985 he allowed the advances to the persons menti�oned below and had obtained the purchase receipts :

Mewa Lal s/o Ghunna

Gulam s/o Nanga

Munna s/o Srinand

Kesan s/o Buddha

Santoo s/o Ganga

Bishambhar s/o Sattideen

Babadeen s/o Nanhoo

Churai s/o Bhikhari

Jabbar Ali s/o Baiju

Ram Naresh s/o Shiv Narayan

Devram s/o Shiv Raj

Nanhoo s/o Narayan

Ram Asrey s/o Dwarika

Vidya s/o Maiku

Bachey Lal s/''o Moti Lal

Garibey s/o Chheddee

Chandresh s/o Rameshwar

Jhagroo s/o Raghuraj

Ambica s/o Swaroop

Lakhan s/o Bharosey.

A depaitraental enquiry was initiated by the disciplinary authority against B. K. Srivastava, ExManager who at the time of passing of the impugned order was under suspension.

The chargesheet was issued against the delinquent on 1321986. Sri D. N. Singh, the then Inspecting Officer was asked to conduct the enquiry of the aforesaid matter and to enquire into the charges levelled against him. The delinquent submitted his explanation on 1931986. The enquiry officer after holding due enquiry submitted his report. The record was placed before Sri P. C. Yadava, Chairman and Disciplinary Authority of the Bank,

The disciplinary authority came to a conclusion that the petitioner had allowed the advances while posted at Bahadurganj branch to the borrowers for purchasing of Dunlopcart and bullockcart, but did not obtain the purchase memo from the borrowers and failed to obtain hypoth�ecation of the Dunlopcart. Thus, he failed to observe the guideline as contained in the circular No. BGB/HO/ADV/1242 dated 1991979 regard�ing execution of the document from the borrowers. He did not obtain the required documents in cases of advance to borrowers under different cate�gories like Dunlopcart & Bullockcart, as a result of which the amount out�standing in those account became insecured and doubtful. Thus he was guilty of dereliction of duty. He also violated the prescribed norms and instructions contained in the circular issued from the Head Office. Thus he was guilty of not maintaining integrity and devotion to duty as also failed to protect the interest of the Bank. The aforesaid acts amounted to acts of misconduct in terms of Regulation 30 of the said Regulation.

As far as charge no. 1 is concerned, enquiry officer was of the view that it was deliberate act on the part of the charged officer as he sanctioned overdraft in contravention of norms and procedures of the Bank circularised from time to time. During the course of the enquiry the delinquent gave his statement to pay the amount from his own pocket, but the disciplinary authority was of the view that such an act of misconduct on his part can�not diminish the seriousness of the charge and it cannot be a ground for determining the quantum of penalty. One who proposes to involve himself in such activities detrimental to the interest of the organisation cannot expect any lenient view at the hand of the management of such organisa�tion. The disbursement of advances to forty borrowers corroborate the cultivation of a continuous habit to ignore the instructions of the depart�ment in his normal working. Such an officer who willfully and knowingly does an act in contravention of the standing instructions of the department deserves to be dealt with severely and the punishment should be an exem�plary one. The seriousness of omission of such an act has to be viewed, not from a social or moral angle, but from a point of view of its actual effect, that is damage or loss to the organisation itself. The enforcement of discipline which includes the compliance of the standing instructions of the organisation by the subordinates, is the demand of the time. The act or the omission which can be fraught with the test of incurable injury to the organisation needs to be dealt severely. An Officer who decides to cultivate a habit of defying standing instructions of the department result�ing in irreparable losses and serve damages to the organisation cannot expect to continue in the service inspite of such deliberate decision of his own, and thus, is not worthy of being allowed to continue in service in the Bank. The record of service of the said Sri Srivastava is adverse to his own interest and does not support to take a view otherwise, as the same evidences imposition of a penalty on the said Sri Srivastava for his failure to act and follow the proceduial norms of the Bank in relation to discharge of duties assigned to him. After giving the aforesaid finding, Sri P. C. Yadava, Chairman and the Disciplinary Authority of the said Bank removed the petitioner from service.

It was asserted by Sri A. R. Khan, counsel for the petitioner that by means of the letter dated 131986 delinquent requested for the supply of both the circulars mentioned in the charge sheet i. e. circular dated 1182 and 1991982, but he was not supplied with the aforesaid circulars, as a result of which his defence was prejudiced and he was denied reason�able opportunity to showcause during the course of enquiry.

lnpara11 of the counteraffidavit this fact has been rebutted and it was stated that circular dated 111982 was shown to the petitioner while there was no circular dated 19982. In fact there was circular dated 19979 and as it was not demanded by the petitioner, it was not shown to him. In view of the fact that the petitioner was allowed inspection of the aforesaid circular dated 1182, the ground of denial of furnishing copy of material and relevant papers to the petitioner fails.

It was further contended by Sri A. R. Khan that it was the normal practice followed by the Branch Managers in the Bank to sanction over�draft to the borrowers. In this regard he referred to the averment made in para23 of the writ petition, wherein the names of various Branch Managers of the said Bank in the said District have been mentioned, who issued overdrafts to the borrowers to the tune of several lacs.

10 The contention of Mr. A. R. Khan is that no action against the managers of the said branches were taken, although they were also guilty of violating the same circular by exceeding the limit in sanctioning over�drafts, not only to one person but to various persons. But the petitioner has been singledout, although he issued overdraft to one person only to the extent of Rs. 84,400/. The practice which was followed by the Branch Managers in sanctioning the overdraft to the borrowers was accepted by the authorities concerned and it was never objected. While the managers of various branches were allowed to sanction overdraft, the petitioner was discriminated and was proceeded with the departmental enquiry ard he was awarded extreme punishment of removal from service. The managers of the bank have been issuing overdrafts on being satisfied that a party had the financial background to pay the amount as well as the interest to the extent of 17.5%. It was contended by Sri A. R. Khan that the petitioner was never charged thet due to the sanction of overdraft the amount was not paid by the borrower and the bank suffered any loss.

11 He further asserted that while making advances for taxitruck, bus and Tempo, the requirement is limited to the extent that Form S.M.4 is filled up by borrower. In the instant case, all the cases which have been considered by the Enquiry Officer and on the basis of which it has been found that the charge2 had been proved, related to the advances of Dunlopcart. Form S. M. 4 was not required Before the Enquiry Officer the petitioner specifically pleaded to explain as to which document was not got executed by him while making advances and the Manager (Advances) be summoned to disclose as to which form was required to be filled up, while making advance to DunlopCart. Inspite of the specific prayer made by him, neither the Manager (Advances) was summoned, nor any specific form was disclosed, but it has been found that Form S. M. 4 was not filled up.

12, This contention has been disputed in paragraph22 of the counter affidavit, wherein it has been indicated that the Enquiry Officer in his find�ing had held that the irregularities pointed out by the Presiding Officer and pre and post survey has not been made by the Charged Officer, consent ? of borrowers not obtained regarding the change of purpose in the case of Sri N K Maurya and payment made cash (although a part thereof) and not obtaining the receipt for this payment is although minor in nature, but admitted as mistake on the part of the cherged offctr

As far as the second charge relating to sanctioning of amount of the borrowers for purchasing the Dunlopcart and Bullock is concerned, petitioner was charged that he had not obtained the purchase receipt from the purchasers and not obtained the hypothecation of Dunlop cart. He failed to obtain the documents from the borrowers, while allowing the advances to them. The petitioner has pleaded that Form S.M 4 was not required to be filled up in grant of loan to borrower for dunlopcart. It was contended that the charge regarding nonexecution of the relevant papers is vague because particulars of those documents were not indicated in the charge itself. In the counter affidavit it was sated that irregularities were treated as minor irregularities, but it was a mistake on the part of the charged officer.

It is the admitted case of the parties that the petitioner sanctioned overdraft to the tune of Rs. 84800/to a borrower contrary to the direc�tions issued by the bank. As stated above, the petitioner has vehemently put forward his case to the effect that for that reason, he could not be dis�missed from service, for the reason that Managers of the various branches of the same bank in the same district sanctioned over draft to the borro�wers to the tune of several lakhs. In the counter affidavit it has been averred that over draft shown by the petitioner against the Branch Managers were mostly adjusted by the parties and action was being contemplated against them as & when the cases would come to the notice of the Bank. It was further stated in the objection/affidavit filed on behalf of the respon�dents to the supplementary affidavit filed by the petitioner that the petiti�oner has not raised any such plea during the departmental inquiry to the effect that he was being discriminated from others. The other officers with similar charges were also dealt with in accordance with law and have been punished keeping in view the totality of the charge. In paragraph 6 it was further stated that S/Shri S. P. Verma and K C. Sharma had been dismissed from service whereas Sri A. B. Singh had died. The disciplinary proceedings in regard to the remaining officers were being conducted in accordance with law. Against the order of dismissal Sri K. C. Sharma preferred a writ petition and the order of dismissal was stayed by the Court on 1391991. The allegation against Sri A. B. Singh pertained to the year 1984 when he allowed over draft to one person, but no proceedings were taken against him till he expired in the year 1988. Besides the aforesaid persons one Sri Kant issued an over draft to a person to the tune of Rs. 2,40000/ while Sri R. K Srivastava issued over draft to a person to the extent of Rs. 2,35,000/, but no action was taken against them. Similarly, S/Sri K. P. Misra and M. P. Trivedi, who had issued over draft to some persons were asked to get the over draft amount deposi�ted in the bank''s account from the aforesaid persons and guarantor. The aforesaid persons were not subjected to any departmental proceedings. They failed in their effort to get the amount deposited from the aforesaid persons. Thereafter the authorities of the Bank directed to deduct Rs. 1500from the salary of Sri K. P. Misra and Rs. 1000/from the salary of Sri M. P. Trivedi every month. No satisfactory explanation has been given in the counter affidavit as to why the Branches of the Bank of some other places were dealt with leniently, while the petitioner was singled out for that lapse. In the present case the Bank had filed a civil suit for the recovery of the said amount against the borrower in whose favour one over draft was issued, which was decreed by the Court.

In the light of the aforesaid facts it has to be seen as to whether the petitioner, who had completed ten years of continuous service till he was dismissed from service could be awarded the extreme penalty of remo�val from service, particularly when the Manager of the various Branches of the same district sanctioned over drafts to borrowers to the tune of several lakhs.

It cannot be said that the petitioner had not committed any act of misconduct. There were specific instructions which forbids the Branch Managers not to sanction over draft to any borrower above the limit pres�cribed in various bank orders. The lapse on the part of the petitioner Cannot be minimised for the reasons that the other Branch Managers also violated the Bank''s circulars and sanctioned over drafts, but the only circumstance which goes in favour of the petitioner to some extent is that while other Branch Managers were not dealt with as severely as the peti�tioner was subjected to. The order of extreme punishment of dismissal from service, in my view, is not commensurate with the gravity of the charge.

In the case of Rama Kant Misra v. State of U. P. AIR 1982 SC 1552 Hon''ble Supreme Court considering the facts and circumstances of the case held that dismissal for use of indiscrete, indecent, or threatening language to the superior only once in the course of long unblemished ser�vice was disproportionately excessive instead withholding of two increment with future effect would be proper punishment. Similar observations were made by Hon''ble Mr. Justice Bhagwati, J. in his dissenting judgment in the case of Bachan Singh v. State of Punjab (1982(3) SCC 24) at pages 2930). In the case of Sri Bhagat Ram v. State of Himachal Pradesh (reported in AIR 1983 SC 454) it was indicated that the penalty imposed must be commensurate with the gravity of misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Art. 14 of the Constitution of India. In the case of K. L. Tripathi, who was an employee of State Bank of India in AIR 1984 SC 273 it was observed :

"However, having regard to the service record to the appellant prior to his conduct and the fact that no loss had been occasioned to the bank by the improper conduct of the appellant, the bank, might in the interest of justice consider to give some job or employment in some capacity which might mitigate or compensate in some measure the loss suffered by him due to dismissal from service."

In the case of M. A. Khalsa v. Union of India (1988 Supplemen�tary Supreme Court Cases 426) where the charges of misappropriation of money received by making false claim for honorarium payable to another employee was established against the delinquent, it was held that the order of dismissal passed against the delinquent was proper having regard to the seriousness of the charge. But in view of the long lapse of time and long period of the service of the appellant, reinstatement in service, withholding two increments with cumulative effect and with consequently loss of senio�rity, but without break in service for the purposes of pension was ordered. In the case of Alexander Pal Singh v. Divisional Superintendent reported in 1986 Supplementary SCC 668 where the delinquent was charged for an act of negligence, amounting to misconduct in not reporting to the Govern�ment hospital for treatment and instead submitting ceitificate of a private doctor, and was dismissed from service, Hon''ble Supreme Court held that a lesser punishment of withholding of two increments with cumulative effect for three years and reinstatement without backwages and allowances would be justified.

In the case of Ram Kumar v. State of Haryana (1987 Supp. SCC582) where the delinquent, a Bus Conductor was charged for nonissuing tickets to nine passengers after taking fares from them was dismissed from service Hon''ble Supreme Court directed to consider his reemploy�ment, because he was father of five minor children, having no means of livelihood.

In the case of Major G. S. Sodhi v. Union of India reported in 1991(1) SVLR(L)190 Hon''ble Supreme Court directed that in place of dis�missal, the appellant shall be taken to have been compulsorily retired from service from the date of the dismissal being operative. In the case of ExNaik Sardar Singh v. Union of India (19913SCC213) Hon''ble Sup�reme Court held :

"Even assuming that the offence committed by the appellant Jawan is covered by the residuary Section 63 the Court Marshal has to keep in view the spirit behind section 72 of the Act in awarding the punishment and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding of the lesser punishment enumerated in Section 71 of the Act. Therefore, much depends upon the nature of the act or omission for which the person is found guilty."

Although the petitioner was guilty of acts of misconduct and deserves punishment, but I am of the view that extreme penalty of dismis�sal from service, in the light of the circumstances that tome Branch Mana�gers, who had sanctioned over draft to the tune of several lakhs were dealt with leniently, is not commensurate with the gravity of the act of mis�conduct alleged to have been committed by the petitioner. The petitioner was employed in the service of the Bank in the year 1977. He was removed from service on 1711987. In view of the long lapse of time, that is ten years of service, any minor punishment like one of withholding of increrrunts etc. would have met the requirement of justice. It was brought to the notice of the Court that earlier also the petitioner committed act of misconduct and was punished by stoppage of one increment due to irregularity commit�ted by him, but he continued to commit irregularity by acting against the Bank Orders issued from time to time, hence no leniency should be shown to him. The Enquiry Officer also referred that aspect of the matter in his report, but in view of the fact that the present chargesheet was silent about the past acts of misconduct alleged to have been committed by the petitio�ner, this aspect of the matter could not have been gone into by the Enquiry Officer as the petitioner was not given an opportunity to show cause against the same.

It was also contended by the learned counsel for the petitioner that the order of dismissal from service was passed by the Chairman who presided over the meeting in which the appeal of the petitioner was consi�dered, hence he became the Judge of his own cause and for that reason the order of the appellate authority deserves to be quashed.

As stated above, since I am of the view that since the order of removal was passed in the year 1983, the petitioner must have suffered a lot ; particularly when he remained out of employment during the last ten years ; the realities of life must have a sobering effect in his outlook and attitude towards maintaining highest discipline in service, particularly in Banks where extreme honesty and integrity is expected from an officer, hence considering the entire aspect of the matter I am of the view that petitioner deserves to be given a lesser punishment, I have not strolled to consider the other grounds.

In view of what has been indicated hereinabove the writ petition succeeds in part. A writ in the nature of certiorari qvashing the impugned order of dismissal (Annexure6) and appellate order (Annexure11) is issued. In view of the long lapse of time and ten years period of service of the petitioner his reinstatement in service without back wages shall be subject to withholding of two increments with cumulative effect and consequential loss of seniority, but without break in service. No order is made as to costs.

(Petition partly allowed.)