-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 593 OF 2001 A.V.K. Poduval ) r/o B/4 Amar Enclave, Opp. ASPT, ) Pune-Solapur Highway, Pune-411 013 )..Petitioner versus 1. Chief General Manager, ) State Bank of India, Local Head Office, ) 6th floor, SBI Bhavan, Madam Cama Road, ) Mumbai-400 021 ) 2. Deputy General Manager, ) Bombay Zonal Office, State Bank of India, ) 88C Leo House, Old Prabhadevi, Mumbai-400 025 ).Respondents Mr. P.O. Varghese, instructed by Mr. K. Balakrishnan, for the petitioner. Mr. Dinesh Pednekar with Mr. Girish Thakar, instructed by M/s. Advani & Company, for the respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JUNE 30 , 2009 ORAL JUDGMENT (Per P.B. MAJMUDAR, J.): By this petition, the petitioner has challenged the order of dismissal dated 28th August, 1999 passed by the appointing authority by which the petitioner has been dismissed from the services of the respondent Bank. The petitioner had further carried the matter in appeal before the Appellate Authority against the said dismissal order. The Appellate Authority dismissed the -2- said appeal by its order dated 17th April, 2001. Being aggrieved by the aforesaid orders, the petitioner has approached this Court by way of this writ petition under Article 226 of the Constitution of India. 2. The petitioner joined the services of the respondent Bank as a Probationary Officer on 6th September, 1965. At the relevant time, the petitioner was working as Assistant General Manager in the respondent Bank. It is the case of the petitioner that the petitioner was required to supervise 33 Bank branches, which included Vashi-Turbhe Branch and Ambarnath Branch. The petitioner was served with a memo on 2nd April, 1993 in connection with the performance report of Vashi-Turbhe branch to which the petitioner replied and the Bank accepted the reply. On 23rd April, 1993, the petitioner received another memo regarding the irregularities in the conduct of advances at Vashi-Turbhe Branch. Thereafter the petitioner submitted a report to the Deputy General Manager regarding the performance as per the directions given by the Bank. After the submission of his report, a suspension order dated 29th May, 1993 was issued to the petitioner placing him under suspension with effect from 31st May, 1993, pending charge-sheet, in connection with the irregularities at Vashi- Turbhe Branch. Thereafter, the petitioner was subjected to charge-sheet in connection with certain irregularities committed by him when he was working as the Assistant General Manager. The articles of charge were served upon the petitioner vide letter dated 19th April, 1995. A copy of the same is annexed at -3- Exhibit- Q to the petition. The petitioner submitted his detailed reply to the said charge-sheet on 15th May, 1995. A regular departmental enquiry was held against him. The enquiry officer, after considering the facts and circumstances and considering the evidence on record came to the conclusion that charge nos. 1 and 2 are not proved but rest of the charges are held to be proved. The learned counsel for the petitioner submitted that on reading of the reasoning of the enquiry officer, it cannot be said that the said charges are proved. The petitioner thereafter was given a copy of the enquiry officer’s report along with the second show cause notice issued by the disciplinary authority. The petitioner was given an opportunity to make his submissions on the findings of the enquiry officer. The petitioner also submitted his reply against the findings of the enquiry officer. The disciplinary authority thereafter came to the conclusion that the charges levelled against the petitioner are proved and passed an order of dismissal which order was confirmed in appeal by the appellate authority. 3. Mr. Varghese, learned counsel appearing for the petitioner, submitted that in case the disciplinary authority was not agreeable in connection with the findings of the enquiry officer qua any of the charges, show cause notice was required to be given to the petitioner and on that ground the order passed by the disciplinary authority is vitiated. In this behalf, the learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Punjab National Bank and others vs. Kunj Behari Misra1 and submitted that when 1 AIR 1998 SC 2713 -4- the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, an opportunity of hearing to the delinquent is must before recording its conclusions, otherwise the said action would be contrary to the principles of natural justice. It is further submitted that initially the disciplinary authority decided to pass an order of compulsory retirement against the petitioner. Thereafter, an opinion of the CVC was sought for by the disciplinary authority. The CVC however recommended for the punishment of dismissal. The learned counsel for the petitioner submitted that the CVC had no authority to suggest punishment and ultimately it was the prerogative of the Disciplinary Authority to pass appropriate punishment. In this behalf the learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Nagaraj Shivan Karjagi vs. Syndicate Bank 1 and submitted that the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case and cannot act the dicta of the CVC. Learned counsel further submitted that in view of this, the order passed by the Disciplinary Authority dismissing the petitioner from service as well as the order of appellate authority are required to be set aside. 4. Mr. Dinesh Pednekar, learned counsel appearing for the respondents, on the other hand, submitted that on reading of the order of the Disciplinary Authority it cannot be said that the Disciplinary Authority has disagreed with the report of the enquiry officer. He submitted that the petitioner had advanced 1 AIR 1991 SC 1507 -5- loan in favour of M/s. Manek Enterprises without taking appropriate security in connection with the transaction at Vashi-Turbhe branch of the Bank and subsequently he had tendered an application for voluntary retirement and when it was noticed by the Bank that he had advanced a loan to a defaulter of the Bank as large amount was outstanding towards the aforesaid firm in connection with the Ambernath branch transaction that the petitioner has failed to take interest of the Bank. 5. It is submitted by the learned counsel for the respondent that it is true that subsequently petitioner tried to recover the amount due to the Bank while in service but his initial action of sanctioning loan without proper verification and in undue hurry in the said transaction was against the interest of the Bank. Learned counsel for the respondent submitted that it is true that the Disciplinary Authority recommended punishment of compulsory retirement by giving detailed and adequate reasons but since CVC was required to be consulted as per Rules and since the CVC recommended that the petitioner should be dismissed that the order of dismissal has been passed. It is submitted that even otherwise, the Disciplinary Authority ultimately was of the opinion that the recommendation of the CVC is required to be accepted. 6. We have heard the learned counsel appearing for the parties and perused the documents. -6- 7. During the course of hearing, learned counsel for the petitioner submitted that he is restricting his argument only on the point of adequate punishment. It is submitted by the learned counsel for the petitioner that once the Disciplinary Authority was of the opinion that compulsory retirement order should be passed, it is not open for the CVC to insist that the petitioner should be dismissed from the services. In this connection, reference is required to be made to the correspondence ensued between the Disciplinary Authority and the CVC. The copies of the same are at pages 371 to 385 of the paper book. The aforesaid correspondence clearly shows that the Disciplinary Authority wanted to inflict the punishment of compulsory retirement for which even detailed reasons have been given, instead the CVC has recommended that the petitioner should be dismissed. In this connection, reference may be made to the decision of the Supreme Court in the case of Nagaraj Shivarao Karjagi (supra). In paragraph 19, the Supreme Court held thus: “19. The corresponding new bank referred to in S. 8 has been defined under S. 2 (f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. -7- No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer.” 8. Considering the said aspect, in our view, when the Disciplinary Authority has given detailed reasons for inflicting the punishment of compulsory retirement, the CVC could not have compelled the Bank to pass an order of dismissal. The correspondence annexed to the paper book shows that the Disciplinary Authority had made up its mind that the petitioner should be subjected to compulsory retirement. In view of the judgment of the Supreme Court referred to above, the order of dismissal, therefore, is not sustainable. The learned counsel for the petitioner stated that the petitioner at present is not in a position to move and is in a crippled condition. 9. In view of the fact that the Disciplinary Authority should not have accepted the dictum of the CVC and completely fettered the directive of the CVC, the impugned order of dismissal is liable to be set aside and the order of punishment is to be substituted from dismissal to compulsory retirement. We accordingly hold that the punishment of dismissal from service be substituted by the order of compulsory retirement. Since the petitioner is retired since long, it would not be proper to remand the matter again before the disciplinary authority to pass a formal order of compulsory retirement. Accordingly, we set aside the -8- impugned orders and direct that the order of dismissal be substituted by order of compulsory retirement. 10. In view of the above, whatever benefits the petitioner are entitled to by way of compulsory retirement on the date of passing the impugned order of dismissal i.e. 28th August, 1999, the same shall be paid to the petitioner within four months from today. Rule is made absolute accordingly in the aforesaid terms. In view of the above, the learned counsel for the petitioner is not pressing any other points. P.B. MAJMUDAR, J. R.M. SAVANT, J.