CIVIL WRIT JURISDICTION CASE No.5716 OF 1997 -------- In the matter of an application under Article 226 of the Constitution of India. ------- 1. Sona Devi, W/o late Siya Ram Ojha „Azad‟ 2. Karun Kumar Ojha, son of late Siya Ram Ojha “Azad‟ 3. Rahul Kumar Ojha, son of late Siya Ram Ojha „Azad‟ 4. Shilpa Kumari, daughter of late Siya Ram Ojha „Azad‟ All resident of village Nawadih, P.S. Sandaur, District Bhojpur -----Petitioners Versus 1.The State Bank of India through its Chairman having its office at Mumbai, Central Office, Madam Cama Road (Post Box No. 12) Mumbai- 400021 2.Dy. Managing Director and Corporate Development Officer, State Bank of India, Central Office, Mumbai 3.The Chief General Manager, Local Head Office, Patna Judges Court Road, P.S. Pir Bahore, in the town & District of Patna 4.Sri R.R.Dutta, Middle Management Scale grade-3 Zonal Office Muzaffarpur------------------------------------------------Respondents ------- For the Petitioners : M/S Awadhesh Kr. Mishra, Arun Kr.Mandal, Advocates For the Respondent Bank: M/S Kaushlendra Kr.Sinha, Sunil Kr.Singh,Advocates -------- P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA -------- R.K.Datta,J. Heard learned counsel for the petitioners and learned counsel for the respondent State Bank of India. 2. The petitioners are aggrieved by the order of dismissal from service passed by the Chief General Manager, State Bank of India, Local Head Office, Patna by his letter dated 20.6.1996 and also the appellate order dated 2 4.2.1997 passed by the Deputy Managing Director and Corporate Development Officer (Appellate Authority). 3. The original petitioner was posted as Branch Manager at Ranka Branch of the State Bank of India, in the district of Palamau during which period he was placed under suspension by order dated 22.9.1982 in contemplation of departmental enquiry and charge memo was served upon him on 23.2.1983. As many as 11 charges were enumerated in the charge-sheet dated 23.2.1983, which are as follows : “I) That during your incumbency as Branch Manager of our Ranka Branch from 28th November, 1981 to 14th February, 1982, you with mala fide intentions sanctioned & disbursed loans under various segments indiscriminately in utter disregard of the Bank‟s laid down instructions. Assessment and appraisal of loan proposals were not done or done in a most perfunctory manner. In many cases even loan application on the prescribed forms were not taken no regard was paid to business activity of the borrower their credit worthiness. Advances were made available to firms/persons outside the operational area of Patna Circle. Loans have also been disbursed on forged signatures to certain persons who have subsequently denied having taken any advance. Your abovementioned acts have exposed the Bank to a great financial loss. The grounds on which this charge is based are given in Paragraph 1 of the annexure. II) That during your said incumbency, you sanctioned, and disbursed loans under DIR scheme indiscriminately, sacrificing all norms for making such advances and without taking proper applications in many cases. (A few advances were given to fake persons and in 3 some cases borrowers signatures have been forged). The grounds on which this charge is based are given in paragraph 2 of the annexure. III) While sanctioning and disbursing loans, you did not care to take appropriate documents. In certain cases income etc. and irregular documents were taken exposing serious threat to the security of Bank‟s money. In some cases, documents were not even taken. The grounds of this charge are given in paragraph 3 of the annexure. IV) No pre-sanction survey was done nor follow-up/inspections of evidences were carried out by you. Insurance was not taken nor stock statements at a periodical interval obtained from the borrowers. Still drawings were allowed without regard to the availability of sufficient stock. The grounds of this charge are given in paragraph 4 of Annexure. V) That in order to keep your controlling authority in dark about your irregular activities, no control return of advances sanctioned under your discretionary power was submitted by you, nor any performance report, weekly abstract etc. were submitted. You were so pre-occupied with your activity of indiscriminate sanctioning of advances that you allowed the writing of Branch Books to fall into arrears. The grounds of this charge are given in paragraph 5 of Annexure. VI) That you took advance from Suspense Account at various Branches on account of your transfer or deputation, but no bills were submitted for adjusting the entries in the Suspense Account violating laid down instructions in this respect. A list of such advances taken by you is given in paragraph 6 of Annexure. VII) You have allegedly demanded and accepted illegal gratification in consideration of your sanctioning advances during the aforesaid period certain deposits/remittances made in your/your mother‟s account are beyond your known sources of income. Some deposits into your account have been made by a borrower and in one case it was by one Shri Raj Kr.Ojha, altered to read as Raj Kr. Ram 4 under your authentication. The details of these deposits are given in the Annexure. The amount of deposits and remittances indicate misuse of your official position for your personal pecuniary gain and to detriment of Bank‟s interest. The grounds of this charge are given in paragraph 7 of the Annexure. VIII) That during your abovementioned incumbency, certain security forms were found missing from the Branch a list of which is given in paragraph 8 of the annexure. IX) That you knowingly let outsiders have access to the Bank‟s records and also allowed a Bank‟s guard and borrowers to write the Branch Manager‟s scroll. Grounds of this charge are given in paragraph 9 of the Annexure. X) That during your aforesaid incumbency, you negotiated at Ranka Branch a cheque for Rs.1000/- on 24.12.1981 drawn on Daltonganj Bazar Branch, but did not dispatch the cheque immediately and held it in your drawer. Again a cheque for Rs.1000/- dated the 2nd February 1982 drawn on your saving Bank Account at Ranka Branch and negotiated by you at Garhwa Branch was received at Ranka for realization which along with the relative list was not put through by you but was found in your drawer by your successor. Another Demand Draft purchased by you on 21.7.82 for Rs.990/- at Arrah Branch on Ranka Branch was returned unpaid (on 27.7.82) as there was insufficient balance in your account at Ranka Branch as on that date. XI) By your abovementioned acts of omission and commission, you have failed to discharge your duties with utmost honesty, integrity, diligence and devotion as required under Rule 32(4) of State Bank of India (Supervising Staff) Service Rules.” All the charges relate to the period from 28th November, 1981 to 14th February, 1982 in the departmental proceedings. In the departmental proceedings as many as 61 documents with many enclosures were submitted on behalf 5 of the employer and four witnesses were also examined. Finally the Enquiry Officer submitted his report dated 14.5.1994 holding that Charge Nos.1.2, 1.3, 1.5 to 1.7, 3 to 9 and 11 were proved; whereas Charge Nos. 1.1, 1.4, 2 and 10 were partly proved. The disciplinary authority by his order dated 21.6.1996 on the basis of the enquiry report came to the conclusion that the gravity of the misconduct committed by the original petitioner established lack of integrity on his part and thus his continuance in the Bank‟s service was considered prejudicial to its interest and therefore inflicted the penalty of dismissal from Bank‟s service in terms of Rule 67(h) of State Bank of India Officers‟ Service Rules, apart from holding that he would not be entitled for salary and allowances, increments and other benefits for the period of suspension which shall not be counted as duty and directed for the forfeiture of whole amount of gratuity payable under the Payment of Gratuity Act. The appeal filed by the original petitioner against the said order was also dismissed by the appellate authority by his order dated 4.2.1997. Aggrieved by the same, the original petitioner had filed the present writ petition. 4. Learned counsel for the petitioners submits that the departmental proceedings had continued for 14 years although the proceedings had not been stayed and thus the 6 order passed in such departmental proceedings ought to be set aside. 5. Further contention of learned counsel is that the findings of the Enquiry Officer, the Disciplinary Authority and the Appellate Authority are perverse because each article of the charge has not been discussed by them while arriving at the conclusion that the charge in question has been proved. 6. It is also the contention of learned counsel that the contents of the exhibits are not automatically proved unless the same are proved by the relevant witnesses and for which purpose each and every loanee should have been examined and the same not having been done the said contents cannot be looked into. 7. It is also urged by learned counsel that there has not been any compliance of principles of natural justice as the orders in question are not reasoned or speaking orders. 8. It is lastly submitted by learned counsel that the misconduct relating essentially to irregularity in the sanction of loan should be seen in the context of the fact that it was the first posting of the original petitioner as Branch Manager and there was shortage of hands in the Branch, which coupled with the fact that the original petitioner had 26 years of unblemished service, hence the 7 punishment of dismissal is disproportionate to the misconduct; more so because the petitioner is already dead and his widow is living without any family pension, so lenient view ought to be taken. 9. In support of the aforesaid proposition learned counsel relies upon various decisions. The first case is Kuldeep Singh vs. The Commissioner of Police and others : AIR 1999 SC 677 in paragraph-27 of which it has been held as follows : “27. This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witness in the presence of the accused who is also to be given an opportunity to cross-examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought on record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured.” 10. Learned counsel also relies upon a decision of the Apex Court in the case of Hardwari Lal vs. State of U.P. 8 and others : AIR 2000 SC 277 in paragraph-3 of which it has been observed as follows : “3. Before us the sole ground urged is as to the non-observance of the principles of natural justice is not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.” 11. Another case cited by learned counsel is State of H.P. vs. Sada Ram & Anr. : AIR 2009 SC (Supp) 302(2) in paragraphs 2 & 3 of which it has been observed as follows : “2. The High Court, while dismissing the petition, passed the following orders :- “CMP No. 224 of 2006 Heard. We do not see any reason to interfere with the judgment of the Tribunal. The petition is dismissed. CMP No. 332 of 2006 In view of the order passed in the main matter, this application shall also stand dismissed.” 3. In our view, the High Court, while disposing of the writ application, ought to have at least given some reasons for dismissing the same and ought to have passed a speaking and a reasoned order. Such being the position and 9 without going into the merits of the writ petition, we set aside the impugned order and restore the writ petition and request the High Court to decide the writ petition afresh on merits.” 12. He further relies upon a decision of the Punjab and Haryana High Court in the case of Ex. H.C.Hari Krishan vs. State of Haryana and others :2000(1) SLR 32 for the proposition that the order of dismissal not discussing the length of service and claim of the petitioner with regard to his pension is not proper. 13. Learned counsel also cites a judgment of this Court dated 15.7.1988 passed in C.W.J.C.No.956 of 1988 (Shri Brajendra Nath Tripathy alias B.N.Tripathy vs. The State Bank of India & others), in paragraph-8 of which it has been held as follows : “8. It was rightly contended on behalf of the petitioner that the Enquiry Officer violated the provisions of the Rules contained in Rule 50(1) (XXX) (a) (3 and 4). The full assessment of evidence in respect of each articles of charges and the findings on each article of charges with the reasoning of the Enquiry Officer is not borne out from the report of the Enquiry Officer. It is obvious that the procedure was not followed by the Enquiry Officer while conducting the departmental enquiry. There is no assessment of evidence on each specific charges and the findings have not been recorded on each such charges. The Enquiry Officer has not recorded his reasoning on each one of these charges.” 14. Learned counsel for the State Bank, on the other hand, submits that almost all the charges against the 10 original petitioner have been found proved and the rest have been found partly proved by the Enquiry Officer. It is urged by learned counsel that on a perusal of the different charges it is evident that each of the charges constitutes a gross misconduct and even if any one of them had been proved the only punishment that could be awarded is of dismissal. 15. It is also the contention of learned counsel for the respondent Bank that contrary to the submission of learned counsel for the petitioner the Enquiry Officer has considered each and every article and sub-article of charge separately and given his findings upon the same by a detailed enquiry report running into 23 pages and thus there is no substance in the submission that there is no finding on each article of charge. It is also the contention of learned counsel that the disciplinary authority and the appellate authority having agreed with the findings of the Enquiry Officer they are not required to again discuss each of the articles of charge and the evidence separately. 16. It is further urged by learned counsel that the provisions of Evidence Act do not automatically apply to the departmental proceedings. In support of his contention he relies upon a decision of a Division Bench of this Court in the case of Chandra Prabha Srivastava vs. The State Bank of India through its Chairman & Ors. : 2010(4) BBCJ 11 V-71, in paragraph-11 of which it has been laid down as follows : “11. That would bring us to the submission of learned counsel for the appellants with regard to the procedural infirmity in an ex parte departmental proceeding. The main attack in this regard is that the documents were not formally proved by examining any witness in course of ex-parte departmental enquiry. Such submission again has to be noted only for its being rejected, inasmuch as, there is no requirement of proving the documents adhering to the principles of Evidence Act which is not ipso facto to be made applicable in a departmental proceedings, unless there is a serious challenge to authenticity of a document.xxxxxxxxxxxx” 17. It is the further contention of learned counsel that a wrong statement has been made on behalf of the original petitioner that it was his first posting as Branch Manager whereas it is evident from the statement made in the counter affidavit that the original petitioner had earlier functioned as Branch Manager in two separate branches for the period of more than one year and thus no such plea could be taken by him. Moreover, even in the case of first posting it is not expected from the Branch Manager to act in a reckless manner in sanction of loans as the original petitioner had done. He could have always obtained advice from his superior officers. 18. It is lastly submitted by learned counsel for the respondent Bank that service in a Bank requires a higher 12 degree of rectitude than that of other organizations as Banks deal with public money and thus in case of laches or misconduct on the part of Bank officers a very severe punishment is required to be meted out. 19. In support of the aforesaid proposition, learned counsel relies upon several decisions of the Apex Court. In the case of State Bank of India and others vs. S.N.Goyal : (2008) 8 SCC 92 it was observed in paragraph-41 as follows : “41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower‟s account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.” Similarly in the case of State Bank of India and Anr. Vs. Bela Bagchi and Ors. : 2005(6) Supreme 87 the following observations were made in paragraph 15 of the judgment : 13 “15. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager vs. Nikunja Bihari Patnaik (1996(9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one‟s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance.” To the similar effect are the observations in the case of Tara Chand Vyas vs. Chairman & Disciplinary Authority and others : (1997) 4 SCC 565. In paragraph-2 of the said judgment it has been further held as follows : “2. Economic empowerment is a fundamental right of the weaker sections of the people, in particular in Scheduled Castes and Scheduled Tribes, ensured under Article 46 as a part of social and economic justice envisaged in the Preamble of the Constitution; the State is enjoined to promote their welfare effectuated under Article 38. Distribution of material resources to elongate that purpose envisaged in Article 39(b) is the means for the development of the weaker sections. The banking business 14 and services were nationalized to achieve the above objects. The nationalized banks, therefore, are the prime sources and pillars for establishment of socio-economic justice for the weaker sections. The employees and officers working in the banks are not merely the trustees of the society, but also bear responsibility and owe duty to the society for effectuation of socio- economic empowerment. Their acts and conduct should be in discharge of that constitutional objective and if they derelict in the performance of their duty, it impinges upon the enforcement of the constitutional philosophy, objective and the goals under the rule of law. Corruption has taken deep roots among the sections of the society and the employees holding public office or responsibility equally became amenable to corrupt conduct in the discharge of their official duty for illegal gratification. The banking business and services are also vitally affected by catastrophic corruption. Disciplinary measures should, therefore, aim to eradicate the corrupt proclivity of conduct on the part of the employees/officers in the public offices including those in banks. It would, therefore, be necessary to consider, from this perspective, the need for disciplinary action to eradicate corruption to properly channelise the use of the public funds, the live wire for effectuation of socio-economic justice in order to achieve the constitutional goals set down in the Preamble and to see that the corrupt conduct of the officers does not degenerate the efficiency of service leading to denationalization of the banking system. What is more, the nationalization of the banking service was done in the public interest. Every employee/officer in the bank should strive to see that banking operations or services are rendered in the best interest of the system and the society so as to effectuate the object of nationalization. Any conduct that damages, destroys, defeats or tends to defeat the said purposes resultantly defeats or tends to defeat the constitutional objectives which can be meted out with disciplinary action in accordance with rules lest rectitude in public service is lost and service becomes a means and source of unjust enrichment at the cost of the society.” 15 20. Having considered the rival submissions of learned counsel for the parties, this Court does not find any force in the submission of learned counsel for the petitioner. The submission that no findings have been recorded on each and every article of charge is not at all borne out by the detailed enquiry report in which each article and sub-article of charge has been separately dealt with on the basis of the evidence brought on the record. So far as the disciplinary authority is concerned, it is not expected from the disciplinary authority to again repeat the finding that has already been recorded by the enquiry officer. If he is in agreement with the same it is required to be seen as to whether there has been application of mind by the disciplinary authority to