Shri Ramesh Kumar Kachhawaha @APPELLANT@Hash State Bank of India

(2) Sl.

No.","Name of

account

holder","STDR A/c

Number","Transaction

Date",Paid Date,Amount (Rs.),"Excess intt.

Amount (Rs.)

1,"Basanti

Ramesh",3160281113 2,27.01.2011,11.05.2011,4000.00,12579.00

2,"Basanti

Ramesh",3160335523 4,27.01.2011,06.06.2011,200000.00,65613.00

3,"Basanti

Ramesh",3174755825 1,14.05.2011,11.06.2011,4000.00,13672.00

4,"Kaushaliya

Devi",3177629251 3,06-06-2011,20.09.2011,124000.00,43713.00

5,"Karan

Kachhwaha",3171037406 0,15.04.2011,10.05.2011,80000.00,23836.00

6,"Karan

Kachhwaha",3178421532 3,11.06.2011,26.09.2011,60000.00,19478.00

7,"Karan

Kachhwaha",3195970063 7,26.09.2011,04.11.2011,30000.00,9439.00

8,"Khushboo

Kachhwaha",3178421644 0,11.06.2011,18.08.2011,50000.00,16391.00

                                                                   Region-2,",,,,,,

Udaipur,,,,,,

          Date : 03.08.2013â€​,,,,,,

Learned counsel for the petitioner after arguing for some time, has given up the challenge to the impugned orders on merits, as admittedly, the",,,,,,

petitioner had opened eight accounts of his near and dear ones to give unauthorized and undue benefit of interest to such near and dear ones.,,,,,,

Learned counsel for the petitioner has further stated that in light of the fact that since no loss has been caused to the respondent-Bank and the,,,,,,

petitioner has rendered unblemished services for thirty three years to the respondent-Bank, therefore, a lenient view regarding quantum of punishment",,,,,,

may be taken.,,,,,,

Learned counsel for the petitioner relied upon the precedent law laid down by the Hon’ble Apex Court in Rajendra Yadav Vs. State of Madhya,,,,,,

Pradesh, reported in (2013) 3 SCC 73, relevant portion of which reads as under:-",,,,,,

“8. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly,,,,,,

reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was",,,,,,

proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both the appellants and,,,,,,

other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in",,,,,,

fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the appellant who",,,,,,

had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.",,,,,,

The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty,,,,,,

can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident.",,,,,,

Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing,,,,,,

the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is,,,,,,

disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.,,,,,,

The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 :,,,,,,

1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same",,,,,,

acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and",,,,,,

that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement",,,,,,

in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among codelinquents. This Court held that it",,,,,,

may, otherwise, violate Article 14 of the Constitution of India.",,,,,,

In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved,,,,,,

misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement",,,,,,

scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary",,,,,,

retirement from service from the month on which the others were given the benefit.,,,,,,

We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have,,,,,,

already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the,,,,,,

same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are",,,,,,

inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in,,,,,,

service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential",,,,,,

benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.â€​",,,,,,

Learned counsel for the petitioner has also relied upon the precedent law laid down by the Hon’ble Apex Court in Collector Singh Vs. L.M.L.,,,,,,

Limited, Kanpur, reported in (2015) 2 SCC 410, relevant portion of which reads as under:",,,,,,

“9. Jurisdiction under Article 136 of the Constitution is extraordinary and interference with the concurrent findings of fact recorded by the courts,,,,,,

below is permissible only in exceptional cases and not as a matter of course. Where the appreciation of evidence is found to be wholly unsatisfactory,,,,,,

or the conclusion drawn from the same is perverse in nature, in exercise of the jurisdiction under Article 136 of the Constitution, this Court may",,,,,,

interfere with the concurrent findings for doing complete justice in the case. In the facts and circumstances of the case, in our view, it is a fit case to",,,,,,

exercise the jurisdiction under Article 136 of the Constitution to interfere with the conclusion of the Labour Court upholding the punishment of,,,,,,

dismissal as affirmed by the High Court. â€​,,,,,,

 8. Learned counsel for the petitioner has also placed reliance on the judgment rendered by this Hon’ble Court in Chel Singh Vs. M.G.B. Gramin,,,,,,

Bank, Pali & Ors, reported in 2009(3) WLC (Raj.) 685, relevant portion of which reads as under:-",,,,,,

“21. I am also in agreement with counsel for the petitioner that the report of inquiry officer on its face is not a speaking and reasoned one. Hon'ble,,,,,,

Supreme Court in Anil Kumar's case (supra), while examining an issue as to how a report of inquiry is required to be constituted, held as follows:â€"",,,,,,

“5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is,,,,,,

wellsettled that a disciplinary enquiry has to be quasijudicial enquiry held according to the principles of natural justice and the Enquiry Officer has a,,,,,,

duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the,",,,,,,

evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant,,,,,,

did not appeal to him or was considered not credit-worthy. He, did not permit a peep into his mind as to why the evidence produced by the",,,,,,

management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the,,,,,,

reasons for the conclusion. T cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported,,,,,,

by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India(1966) 1 SCR 466 : (AIR,,,,,,

1966 SC 671), this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not",,,,,,

be, deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh(1971) 1 SCR 201 : ((1970) 1 SCC 764 : AIR 1970 SC",,,,,,

1302), this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that",,,,,,

appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the,,,,,,

character. In this case the enquiry report is an order-sheet which merely produced the stage through which the enquiry passed. It clearly disclosed a,,,,,,

total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have,,,,,,

been a gross case of non application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.,,,,,,

Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural,,,,,,

justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of",,,,,,

evidence. But where the evidence is annexed to an order-sheet and no correlation is established between the two showing application of mind.â€​,,,,,,

Hon'ble Gujarat High Court in H.P. Thakore v. State of Gujarat, reported in 1979 (1) LLJ 339, in quite detail considered the issue as to how",,,,,,

discretion is required to be exercised by the disciplinary authority to subject an employee with a specific penalty where number of penalties are,,,,,,

prescribed. The discussion made by Hon'ble Gujarat High Court in the case aforesaid in this regard deserves to be quoted and that is:â€",,,,,,

“A question of life-or-death-significance relating to service jurisprudence as to whether before imposing the economic death penalty of dismissal or,,,,,,

removal from service a disciplinary authority is bound to apply his mind to the three vital considerations, namely, (1)as regards the nature and",,,,,,

magnitude of the established charge, (2)as regards the desirability or other wise of retaining the Government servant in service in the context of the",,,,,,

charges found proved against him and (3)as to whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate, and",,,,,,

several other questions have surfaced in this petition under Art. 226 of the Constitution of India instituted by a Talati-cumMantri who was dismissed,,,,,,

from service at the conclusion of a departmental proceeding. ***,,,,,,

Be it administration of criminal Law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the",,,,,,

“end†in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following,,,,,,

factors must be considered:,,,,,,

(1) In a disciplinary proceeding for an alleged faultof an employee punishment is imposed not in order to seek retribution or to give vent to feeling of,,,,,,

wrath.,,,,,,

(2) The main purpose of a punishment is to correctthe fault of the employee concerned by making him more alert in the future and to hold out a,,,,,,

warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment.,,,,,,

(3) It is not expedient in the interest of theadministration to visit every employee against whom a fault is established with the penalty of dismissal and,,,,,,

to get rid of him. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never,,,,,,

commit any fault. And citizens would be deterred from joining Government service if the principle of security of service is scuttled and every,,,,,,

employee renders himself liable to lose his job, incur social stigma thereby, and exposes his entire family to misery if he commits a fault.",,,,,,

(4) In order not to attract the charge ofarbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault.,,,,,,

Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.,,,,,,

(5) When different categories of penalties can beimposed in respect of the alleged fault one of which is dismissal from service, the disciplinary",,,,,,

authority per force is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be,,,,,,

imposed having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to",,,,,,

the nature, content and magnitude of the fault committed by the employee concerned it would be risky to retain him in Government service, the",,,,,,

maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without jeopardizing the interest of the administration the,,,,,,

disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty whether,,,,,,

the penalty lesser than the penalty sought to be imposed can be imposed without jeopardizing the interests of the service.,,,,,,

(6) It cannot be overlooked that by and large it isbecause the maximum penalty is imposed and total ruination stares one in the eyes that the employee,,,,,,

concerned is obliged to approach the Court and avail of the costly and time consuming machinery to challenge in desperation the order passed by the,,,,,,

disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to make recourse to costly legal proceedings which result in loss",,,,,,

of public time and also result in considerable hardship and misery to the employee concerned.,,,,,,

(7) When the disciplinary proceedings end infavour of the employee the State has often to pay back wages say for about 5 years without being able to,,,,,,

take work from the employee concerned. The public exchequer suffers. On the other hand, the employee concerned would have had to suffer",,,,,,

economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable,,,,,,

burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed,,,,,,

instead of a lighter one.,,,,,,

Having regard to these considerations the disciplinary authority is bound to apply his mind carefully to this aspect. In the present case it is obvious that,,,,,,

he has given no thought to the relevant considerations involved in imposing the penalty of dismissal. Under the circumstances, the impugned order",,,,,,

deserves to be quashed also on the ground that if suffers from the vice of nonapplication of mind on the part of the disciplinary authority to a vital,,,,,,

function entrusted to him. In the present case it does not appear that the disciplinary authority has applied his mind in respect of each proved charge in,,,,,,

order to ascertain its magnitude with a view to inform himself whether the charge was so serious that the petitioner deserved to be dismissed from,,,,,,

service. He has simply made a reference in a general and vague manner to the accusations which formed the subject-matter of the charge-sheet.,,,,,,

Which particular charge is considered serious enough to merit the penalty of dismissal it is difficult to find out from the impugned order. Nor is it,,,,,,

possible to find out whether the disciplinary authority considered the charges to be of such a serious character as to merit an order of dismissal. It,,,,,,

must be realised that it cannot be the ipse dixit of the disciplinary authority. It is not every charge that merits the extreme penalty of dismissal. In order,,,,,,

to reach an intelligent decision as to whether or not the charge is serious enough, one has to consider the nature of the duties performed, the",,,,,,

consequences of the fault attributed to the Government servant, the loss or damage sustained by the administration on account of the alleged fault, as",,,,,,

also to consider whether the nature of the charge is such that the person concerned cannot be retained in Government service without detriment to the,,,,,,

public interest or the interest of the administration.â€​,,,,,,

In the present case the disciplinary authority imposed a penalty of removal and that is certainly a penalty lesser than dismissal, however, effect of",,,,,,

that is also termination from service without having any service benefits. The application of mind as sought to be impressed upon does not reveal from,,,,,,

reading of the order impugned dated 17.10.1994. The disciplinary authority after considering the findings given by the inquiry officer and also the,,,,,,

evidence available on record held the petitioner guilty for all the charges, however, neither in the notice for proposed penalty nor in the order imposing",,,,,,

penalty he has given any justification for selecting the penalty of removal from service. The disciplinary authority is not required to go in minute details,,,,,,

or to adopt a process of exclusion while choosing a penalty sought to be imposed upon the delinquent employee, however, the minimum requirement is",,,,,,

that the vital considerations as pointed out by the Gujarat High Court in H.P. Thakore's case (supra) should be kept in mind while making,,,,,,

consideration for choosing a penalty and such consideration should reflect in the order imposing penalty. As such the disciplinary authority should have,,,,,,

taken into consideration the magnitude and nature of the charges established against the petitioner, the desirability or otherwise of retaining the",,,,,,

petitioner in service in the context of the charges found proved against him and that a penalty lesser than extreme penalty of dismissal or removal,,,,,,

would have not met the act of misconduct for which the delinquent employee was found guilty. A judicious application of mind is certainly required,,,,,,

while selecting a penalty sought to be inflicted upon an employee. Such application of mind is conspicuously absent in present case.â€​,,,,,,

Learned counsel for the respondents has strongly refuted the aforesaid submissions made on behalf of the petitioner and has submitted that the,,,,,,

petitioner was discharging his duties of dealing with public faith and financial institution, and therefore, a strict view needs to be taken and the orders",,,,,,

impugned are well justified, and in the circumstances, the dismissal of the petitioner from service was well reasoned.",,,,,,

Learned counsel for the respondents relied upon the judgment rendered by the Division Bench of this Hon’ble Court in V.K.Garg Vs. State,,,,,,

Bank of India & Ors. (D.B.Civil Special Appeal No.217/2006 decided on 16.07.2015), relevant portion of which reads as under:-",,,,,,

“13. Learned counsel for the appellant has relied on the judgment in Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, in which the question of",,,,,,

proportionality of punishment was considered in the light of the previous decisions of Hon'ble Supreme Court, in Om Kumar v. Union of India, (2001)",,,,,,

2 SCC 386; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, and Union of India v. G. Ganayutham, (1997) 7 SCC 463 as well as Chairman and",,,,,,

MD, United Commercial Bank v. P.C. Kakkar, (2003) 4 SCC 364, and it was observed as follows:-",,,,,,

“21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the",,,,,,

departmental proceedings reveal that several acts of misconduct unbecoming of a bank official were committed by the respondent.,,,,,,

It is to be noted that the detailed chargesheets were served on the respondent employee who not only submitted written reply, but also participated",,,,,,

in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal,,,,,,

from service. The same was accepted by the disciplinary authority. The proved charges clearly established that the respondent employee failed to,,,,,,

discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank. In the appeal before",,,,,,

the prescribed Appellate Authority, the findings of the inquiry officer were challenged. The Appellate Authority after analysing the materials on record",,,,,,

found no substance in the appeal.,,,,,,

The scope of interference with the quantum ofpunishment has been the subject-matter of various decisions of this Court. Such interference cannot,,,,,,

be a routine matter.,,,,,,

Aforesaid being the position, the decision of the learned Single Judge on the quantum of punishment and of the Division Bench regarding alleged",,,,,,

violation of the principles of natural justice cannot be maintained and are, therefore, set aside. The inevitable conclusion is that the order of dismissal",,,,,,

as passed by the appellant Bank does not suffer from any infirmity. Appeal is accordingly allowed, but with no order as to costs.",,,,,,

In reply, learned counsel appearing for the respondent-Bank submits that the charges levelled against the appellant were serious enough to award",,,,,,

the punishment of dismissal. Even if the finding on Charge No. 12 is ignored, the decision taken by the Disciplinary Authority, does not require any",,,,,,

interference. Learned Single Judge has considered the arguments and has dismissed the writ petition, holding that the charges were proved, and that",,,,,,

no illegality was caused in the procedure. The principles of natural justice were observed, and that the punishment is proportionate to the charges,",,,,,,

which shows complete recklessness on the part of the appellant, as an Officer of the Bank in discharge of his duties. He has relied on the judgment in",,,,,,

Ganesh Santa Ram Sirur v. State Bank of India, (2005) 1 SCC 13, in which the Hon'ble Supreme Court observed, in para 34, as follows:-",,,,,,

“34. The bank manager/officer and employees of any bank, nationalised/or non-nationalised, are expected to act and discharge their functions in",,,,,,

accordance with the rules and regulations of the bank. Acting beyond one's authority is by itself a breach of discipline and trust and a misconduct. In,,,,,,

the instant case Charge 5 framed against the appellant is very serious and grave in nature. We have already extracted the relevant Rule which,,,,,,

prohibits the bank manager to sanction a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant did not appear to,,,,,,

have kept this aspect in mind and acted illegally and sanctioned the loan. He realised the mistake later and tried to salvage the same by not encashing,,,,,,

the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decision.,,,,,,

Rule 34(3)(1) is a rule of integrity and, therefore, as rightly pointed out by Mr. Salve, the respondent Bank cannot afford to have the appellant as bank",,,,,,

manager. The punishment of removal awarded by the appellate authority is just and proper in the facts and circumstances of the case. Before,,,,,,

concluding, we may usefully rely on the judgment Regional Manager, U.P. SRTC v. Hoti Lal, wherein this Court has held as under: (SCC p.614, para",,,,,,

10),,,,,,

“If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal",,,,,,

with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the persons deals with public money or is engaged in,,,,,,

financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness in a must and unexceptionable. Judged in that",,,,,,

background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned",,,,,,

Single Judge upholding the order of dismissal.â€​,,,,,,

After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, at length,",,,,,,

this Court is of the opinion that the petitioner has in fact rendered unblemished services of thirty three years with the Bank from 08.04.1980 to,,,,,,

03.09.2013.,,,,,,

This Court also finds that though the charges have been proved and are not contested by the petitioner, but the allegations even after being proved,",,,,,,

did not cause any loss to the respondent and the date of superannuation of the petitioner i.e. 31.07.2016 has already gone.,,,,,,

On perusing the aforementioned precedent law, this Court, considering the limited prayer of the petitioner regarding the quantum of punishment,",,,,,,

while upholding the impugned orders, deems it appropriate to substitute the punishment of dismissal from service with that of compulsory retirement.",,,,,,

The petitioner shall be accordingly given all retiral benefits and consequential benefits, as he shall be treated to be compulsorily retired with effect",,,,,,

from 03.09.2013. However, it is made clear that the period of suspension of the petitioner shall be notionally counted for the purpose of such benefits.",,,,,,

With the aforesaid observations and directions, the present writ petition stands disposed of.",,,,,,