S. Elhance vs State Bank of India

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. 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.

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 The LPA No. 664/2005 which the appellant had filed was withdrawn by him on 16th September, 2010.

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.

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.

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 Vs. A.P.S.R.T.C. and Others, 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 Vs. Bidyabhushan Mohapatra, 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.

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. 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.