Ch. Laxmikantham vs The Chairman, State Bank of India and Others

A.K. Samantaray, J.—In this Writ Petition under Articles 226 & 227 of the Constitution of India the Petitioner has challenged the order of discharge from service passed by the Disciplinary Authority (O. P. No. 1) and confirmation of the same by the Appellate Authority (O. P. No. 3) and has prayed for quashment of the said orders under Annexures 25 & 28. She has also prayed for her reinstatement in service with all service benefits right from the date of her suspension on 1.2.1997.

The background facts leading to the discharge of the petitioner from service and filing of this Writ Petition is narrated below.

The petitioner was appointed as Junior Assistant in the State Bank of India and her appointment was made on compassionate ground on 9.2.1985. In the first instance she was posted as a Clerk in the IDCO Tower Branch of the State Bank of India at Bhubaneswar and in May, 1992 she was transferred to Balasore. While holding office in the SBI, Main Branch, Balasore, she committed serious irregularities and gross misconduct in the month of January, 1997. The petitioner belongs to award staff and is governed by all India Industrial Tribunal (Bank Disputes) which is popularly known as Shastry Award and paragraph 512 of the Shastry Award prescribes the procedure relating to the disciplinary proceedings and imposition of penalty and the said Shastry Award is binding on the parties in accordance with Section 18 of the Industrial Dispute Act. The serious irregularities and gross misconduct came to light and the petitioner was placed under suspension by order dated 1.2.1997 vide Annexure-4. Thereafter, by order dated 1.7.1997 (Annexure-5) she was called upon to submit her explanation to the allegation that she had deceptively managed to obtain three numbers of SB withdrawals from Smt. Satyabati Das for Rs. 95,000/-, Rs. 75,000/- and Rs. 73,000/- aggregating to Rs. 2,43,000/- drawn on her S.B. account No. 557211 and presented them for payment with an ulterior motive knowing fully well that the balance in the account was insufficient on the material date i.e. 22.1.1997. She was also called upon to explain the allegation that she had deceptively removed the relative S.B. Ledger sheet of the Account and three paid withdrawals in question purposefully with an intention to destroy the evidence and defraud the Bank. She was also called upon to explain about her unauthorizedly leaving the Branch after receiving payment of Rs. 2,43,000/- on 22.1.1997 without obtaining prior permission from the appropriate authority and remaining absent since then from duty in an unauthorized manner without submitting any leave application, in violation of the rules of service conditions under which she was governed. She was further called upon to explain in the said Annexure-5 to the allegation that on the same day she had deposited Rs. 20,0065/- towards liquidation of her cooperative loan account from out of the amount drawn by her practicing fraud.

The petitioner on receipt of Annexure-5 submitted her show cause on 1.12.1997 vide Annexure-6 denying the alleged act of misconduct and irregularities levelled against her. Since the explanation furnished by her was not satisfactory and in fact the same was not a true reflection of the state of affairs a disciplinary proceeding was initiated and charge sheet was issued detailing the charges levelled against her vide Annexure-7 asking the petitioner to show cause why disciplinary action should not be taken against her and Enquiry Officer, namely, Anirudha Pattanaik was appointed and one Sri B. B. Parida was appointed as the Presenting Officer vide Annexure-8 dated 23.3.1998. On 7.4.1998 vide Annexure-9 Sri R. K. Ghose, MMGS-III, Manager (NPA), Region-III, State Bank of India, Zonal Office, Bhubaneswar was appointed as the Enquiry Officer in place of Sri Anirudha Pattanaik to conduct the inquiry and the same was intimated to the petitioner. On 7.4.1998 the petitioner submitted her show cause vide Annexure-10 and inquiry commenced form 10.7.1998. The petitioner was allowed defence assistance through out the inquiry and fully participated in the inquiry. On conclusion of the inquiry the Enquiry Officer submitted his inquiry report to the disciplinary authority with the following finding :

Going by the proceedings, the exhibits, & the witnesses it is observed that the entire charges are based only on circumstantial evidence which squarely point to the involvement of the CE at every stage of the transaction. No concrete evidences could be produced to substantiate the charges. Hence the involvement of the CE in the transaction is evident and has not been denied by the DC also. It is also established by Dex-2, that the SB account holder Smt. Satyabati Das has acknowledged receipt of the money/payment which has also been repaid with interest. Considering the above, it is considered that the involvement of the CE in the transaction is established.

Sd/- (R. K. Ghose) Enquiry Officer Dt. 3.5.99

The copy of the inquiry report was sent to the petitioner on 5.5.1999 calling upon her to make any representation or submission within fifteen days from the receipt of the same and the petitioner preferred a representation on 22.5.1999 vide Annexure-20 and the disciplinary authority on 20.9.1999 issued second show cause tentatively deciding to inflict upon her the punishment of discharge from service in terms of paragraph 21(iv)(b) of the Sixth Bipartite Settlement dated 14.2.1995. The petitioner submitted her show cause on 9.12.1999 and the disciplinary authority after receipt of the same decided to afford personal hearing to the petitioner and fixed 17.12.1999 for the same and on the date fixed after making personal hearing the disciplinary authority passed final order on 6.1.2000 and the said final order is quoted below :

She should be discharged from service" and "the period of suspension to be treated as not on duty.

The final order passed was communicated to the petitioner and after receipt of the same she filed an appeal memorandum before the Appellate Authority i.e. Deputy General Manager, who after affording personal hearing to the petitioner confirmed the punishment of discharge from service inflicted by the disciplinary authority. After this final order of dismissal was passed the petitioner has filed this Writ Petition challenging the orders passed by the disciplinary as well as the Appellate Authorities discharging her from service.

In the Writ Petition the petitioner has challenged the penalty of discharge inflicted on her on the following grounds :

(i) That no evidence has been made out against her basing on the inquiry report submitted by the Deputy Superintendent of Police, Balasore in view of the statement of the account holder Smt. Satyabati Das and other connected records.

(ii) That the sole allegation against the petitioner as per charge No. 1 has been partly proved simply basing on suspicion as the petitioner and her mother-in-law Smt. Satyabati Das were staying under one roof at the relevant time. This allegation is not enough to discharge the petitioner from service.

(iii) That there has been procedural impropriety in the conduct of the departmental inquiry as in the absence of the petitioner as well as the defence counsel the Enquiry Officer recorded the statement of some witnesses who could not be cross-examined and as such the proceeding is vitiated and the finding arrived at thereon cannot be sustained.

(iv) That had the petitioner not been the daughter-in-law of Smt. Satyabati Das, the Savings Bank account holder of SBI, Main Branch, Balasore, who had withdrawn Rs. 2,43,000/- on 22.1.1997, which withdrawal was verified and scrutinized by the Bank personnel, namely, Sri Harekrushna Das (the ledger verifying clerk), Sri R. K. Mohapatra, the Personal Divisional Manager (verifying officer) and Sri Laxmikanta Ghadei, (Cashier), she would not have been entangled in the affair and the transaction and that it is only in order to protect those bank personnel she has been proceeded against and penalized although she had no role to pay in the matter.

(v) That the account holder Smt. Satyabati Das has submitted her statement (Annexure-2) dated 29.1.1997 where she has stated that the withdrawal of Rs. 2,43,000/- has been made by herself and the same has been repaid along with interest, when she came to know that she was not entitled to withdraw the said amount from her personal Savings Bank account due to lack of sufficient fund. As per the Bank principles, if any amount is excessively withdrawn by the account holder either by fault of the account holder or by the Bank personnel, the said excess amount be received along with interest as a debt from the account holder.

(vi) That the management of the Bank filed an FIR to set the criminal action into motion on 29.1.1997 and the D.S.R., Balasore had investigated the matter and submitted his report that there was no direct evidence against the petitioner regarding her involvement in the said affair. Despite such report the management put her under suspension on 1.2.1997 being fully aware that there was no direct evidence against her and it was done only to protect the interest of the Bank personnel, namely, Sri Harekrushna Das, Sri P. K. Mohapatra and Sri Laxmikant Ghadei.

(vii) That as per the finding recorded by the Enquiry Officer out of five nos. of charges, four were not proved and the first charge was partly proved.

(viii) That the disciplinary authority proposing to differ from the report of the Enquiry Officer is required to give opportunity of hearing to the delinquent officer before recording his conclusion, which has not been followed and thereby there has been violation of principle of natural justice.

(ix) That after the disciplinary authority punished her by inflicting the punishment of discharge from service, she had preferred an appeal and the appellate authority on 10.4.2000 called her for personal hearing and recorded her statement wherein it has been recorded "that the unfortunate incident occurred due to some domestic troubles and financial crisis at the weakest moment of my life" which statement she has not made and she came to know about such recording when she received the order of the appellate authority on 18.4.2000 and she immediately approached the appellate authority (O.P. No. 3) for withdrawal/cancellation of her statement so recorded as she had not made such statement.

To support the contention raised the Learned Counsel for the petitioner submitted that the Opp. Parties when lodged FIR and thereby set the criminal law into motion they should not have simulataneously initiated administrative action against the petitioner and should not have placed the petitioner under suspension. Relying on the final report submitted by the police, he submitted that when police found no evidence against the petitioners and the petitioners involvement in the incident could not be prima facie made out in the police investigation, the initiation of departmental proceeding is bad in law. It is the settled principle of law that both the departmental proceeding and the criminal proceeding can run concurrently and even if there is an acquittal in the criminal proceeding where the charges were not proved beyond reasonable doubt, the standard of proof required to prove a charge of misconduct in departmental proceeding is not the same as that required to prove the criminal charges. This being the settled principle of law the grounds advanced by the Learned Counsel for the petitioner that the Opp. Parties should not have initiated the departmental proceeding which ultimately resulted in the discharge of the petitioner from service is untenable.

The next contention advanced by the Learned Counsel for the petitioner is that there has been procedural impropriety while conducting the departmental proceeding by the Enquiry Officer as because in absence of the petitioner or his counsel who was defending her, evidence of the witnesses was recorded. In this connection, he drew our attention to the 3rd sitting of the departmental inquiry and pointed out that the 3rd sitting was conducted on 6.11.1988 wherein one P. K. Mohapatra was examined and cross-examined. On behalf of the other two delinquents Laxmikanta Ghadei and Harekrushna Patra, the defence counsel cross-examined the witnesses and the witnesses since did not depose anything against this petitioner the defence counsel did not choose to put any question by way of cross-examination. We also find that the defence counsel has on the very same date stated before the Enquiry Officer that he had verbal consent of this petitioner to defend her and on the 4th sitting of the proceeding which was conducted on 21.12.1998, the petitioner was present with defence counsel and the defence counsel cross-examined the witnesses examined on that date. If at all there was any procedural impropriety and the Enquiry Officer conducted the proceeding in absence of the petitioner as well as her defence counsel on the 3rd sitting of the proceeding, she or her defence counsel could have brought this to the notice of the Enquiry Officer and could have urged to recall the witnesses or the witnesses examined behind her back for their cross-examination. No such prayer has been made by the petitioner or the defence counsel. Rather, it appears that since there was no statement made by the witnesses against the petitioner the defence counsel did not choose to cross-examine the witnesses. This being the factual position, as we observe, we find no procedural irregularity committed by the Enquiry Officer in the conduct of the proceeding.

It was also contended before us by Learned Counsel for the petitioner that the disciplinary authority after receipt of the enquiry report when proposed to differ from the said report, he should have afforded opportunity of hearing to the petitioner (delinquent) before recording his conclusion and in the instant case that has not been done and as such there is violation of principle of natural justice. We fail to understand the basis of such a contention when there is absolutely no question of the disciplinary authority differing from the finding given by the Enquiry Officer in the inquiry report (Annexure-18), which we have quoted in paragraph 3 of the judgment. The Enquiry Officer has found that the involvement of the charged employee in the transaction is established. This finding of the EO has been accepted by the disciplinary authority and the disciplinary authority has no where differed from the finding recorded by the Enquiry Officer and in such a situation the contention advanced by Learned Counsel for the petitioner that the disciplinary authority differed from the Enquiry Officer is based on misconceived notion. We, rather, find that the disciplinary authority before inflicting punishment has followed the procedure of calling for show cause and has given the petitioner personal hearing and there is no procedural irregularity or impropriety committed by the disciplinary authority.

Learned Counsel next contended that the disciplinary authority punished the petitioner by inflicting the punishment of discharge from service and the petitioner preferred an appeal and the Appellate Authority (Deputy General Manager) called the petitioner for personal hearing and on 10.4.2000 she appeared before the DGM in his office at Bhubaneswar where the Appellate Authority recorded the statement of the petitioner to the effect that "the unfortunate incident occurred due to some domestic trouble and financial crisis at the weakest moment of my life" and no such statement was made by the petitioner and she came to know about the recording of such statement only when she received the order of the Appellate Authority confirming/upholding the punishment of discharge from service inflicted by the disciplinary authority.

It is the admitted position before us that after the petitioner come to know that the Appellate Authority had recorded her statement as aforementioned, she wrote to the DGM (Appellate Authority) on 31.7.2000 for recall of the order dated 18.4.2000 i.e. the order dismissal of the appeal (Annexure-28) and for cancellation of statement recorded on the date of personal hearing i.e. 1 0.4.2000. Form the content of the letter to the Appellate Authority which has been annexed as Annexure-29, she has disowned her statement wherein she has not only made the aforementioned statement as quoted in paragraph-9 but also has categorically and in clear terms admitted that she had taken out three withdrawal from S.B. account of Smt. Satyabati Das amounting to Rs. 73,000/-, Rs. 75.000/- and Rs. 95.000/- aggregating to Rs. 2,43,000/- without sufficient balance in the account on 22.1.1997. She has also admitted that she had obtained three numbers of SB token bearing Nos. 114, 115 & 116 form Savings Bank counter against surrender of three tokens. She has also admitted that after taking payment of Rs. 2,43,000/- she left the Branch immediately without informing anybody. The aforementioned statement of the petitioner was recorded at the time of personal hearing by the Appellate Authority and the same has been signed by the petitioner. It further appears that after making a clean breast of all her fraudulent deeds she had requested the Appellate Authority to pardon her and to have mercy on her giving her another chance as the amount was repaid in the Bank along with interest within four days. But as her appeal was dismissed and the same was intimated to her she made a prayer to the Appellate Authority to cancel the statement so recorded at the time of personal hearing and at the same time she disowned the same lest it would seal her fate and she would not be entitled to any relief in future in any other forum. Learned Counsel for the Opp. Parties submitted that interference with the decision of the departmental authority can be permitted while exercising jurisdiction under Article 226 of the Constitution if such authority had held the proceedings in violation of the principle of natural justice or in violation of statutory regulation prescribing mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merit of the case, or if the conclusion made by the authority on the very face of it is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion or grounds very similar to the above. In support of this contention Learned Counsel cited the decision of the Apex Court in the case of the The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, . The Apex Court in the aforementioned judgment held as under:

However, it cannot be overlooked that the departmental authority is the sole judge of the facts, if the inquiry has been properly conducted. The settled position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution.

In a decision of the Apex Court in the case of Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain reported in 2005(1) Supreme 427 the Apex Court has observed as under:

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 the Wednesbury''s 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 to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put 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.

In the case at hand, Learned Counsel for the petitioner although has taken various stands to assail the decision of the management, he has failed to convince us that there has been any deficiency in the decision making process. The scope of interference being very very limited and the decision being fully within administrator''s domain, the Enquiry Officer finding the petitioner guilty which was accepted by the Disciplinary Authority and added to it the petitioner making a clean breast of her fraudulent deeds and detailing in her statement, the way she managed to withdraw huge amount of Rs. 2,43,000/- being fully conscious of the fact that there was scanty and insufficient fund in the account of her mother-in-law Smt. Satyabati Das, she is guilty of misconduct of such magnitude that the Disciplinary Authority has inflicted the punishment of discharge from service and the same has been confirmed by the Appellate Authority.

Learned Counsel for the petitioner finally submitted that the punishment imposed on the petitioner is shockingly disproportionate and on the face of the admitted fact that with all promptitude and within four days of such withdrawal the amount was repaid with interest and no loss has been sustained by the Bank and in such a situation the management should not have done away with petitioner''s services and should have afforded another chance to her which she had begged at the time of personal hearing by the Appellate Authority. In this connection, we would like to note that a Bank employee is required to maintain and exercise higher standards of honesty and integrity as because he deals with the money of the depositors and the customers and therefore he is required to take all possible steps to protect the interest of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence. He is not to do anything, which is unbecoming on the part of a Bank employee. Good conduct and discipline are inseparable from the functioning of every employee of the Bank who deals with public money and there is no defence available to say that there was no loss resulted to the Bank when an employee of the Bank unauthorisedly and fraudulently manages to withdraw money from the account of another wherein there is no sufficient fund and after being detected refunds the same with interest, as observed by the Apex Court in the case of Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, . The very discipline of the organization/bank is dependent upon each of its officers and employees acting and operating within their allotted sphere. Acting beyond one''s authority is by itself a breach of discipline and is misconduct. The charge of serious misconduct having been establihsed and candidly admitted by the petitioner and she being a Nationalised Bank employee having committed fraud on the Bank being totally oblivious of the sphere of work allotted to her, is guilty of serious misconduct and keeping in view the scandalous proportion of the misconduct committed, the Disciplinary Authority had imposed the well deserved punishment of discharge which stands confirmed in appeal which, in our opinion, is not at all shockingly disproportionate.

This being the position, we are not inclined to interfere with the order of the Disciplinary Authority as well as the Appellate Authority and accordingly direct dismissal of the Writ Petition.

B. P. Das, J.

I agree.