IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12561 of 2002 AJAY KUMAR SRIVASTAVA Versus THE STATE BANK OF INDIA & ORS ----------- 7/ 23/04/2009 Heard learned counsel for the petitioner and learned counsel for the respondent Bank. The original petitioner was the employee of the bank subjected to a departmental proceeding who came to this Court aggrieved. During the pendency of the writ petition, he has been deceased on 28.4.2004. I.A. No.3327/04 has been filed for substituting him by his legal heirs as mentioned in paragraph-3 of the application. On hearing counsels for the parties and considering that the writ petition, if allowed, may have financial implications for the family of the deceased, the interlocutory application is allowed. The legal heirs are permitted to be substituted in place of the deceased original petitioner. The petitioner was placed under suspension on 12.5.1983 and memo of charges were issued to him on 9.9.1997. The allegation was that while functioning as a Branch Manager of the State Bank of India, Mohania Branch the petitioner committed certain acts unbecoming of a bank officer in committing lapses/irregularities in sanction, conduct and follow-up 2 of advances during his tenure as a Branch Manager in the A.N.Y. Mohania Branch. He failed to perform his duties with utmost integrity, honesty, devotion and diligence in violation of Rule-50(4) of the State Bank of India Officers Rules. He was placed under suspension under Rule-50(2)A of the State Bank of India (Supervising Staff) Services Rules. The services of the petitioner were extended from time to time to enable completion of this departmental proceeding initiated during his service tenure. The last of such extension was on 21.11.1996 effective from 17.11.1996 to 16.11.1997. Aggrieved, the petitioner came to this Court in C.W.J.C. No.6364/98 questioning the extension of his services after retirement for the purpose of conclusion of the disciplinary proceeding. In that writ petition also the petitioner took the defence that documents were not being supplied to him. The respondents in their counter affidavit urged that the petitioner did not submit any written statement and was merely attempting to delay the matter by asking for documents even before submitting his written statement of defence and that too without specifying the specific documents that he wanted. The petitioner urged that the departmental proceedings were sought to be 3 initiated nearly 15 years after the alleged occurrence mentioned in the charge-sheet. He also sought to urge that there was a criminal case against him on the same charges and, therefore, during the pendency of the criminal case a departmental proceeding should not continue. Learned counsel for the petitioner fairly submits that the delinquent was charge-sheeted in the police case, but which has remained inconclusive. This Court by its judgement and order dated 21.12.1998 negatived the contention that the pendency of the criminal case shall prejudice him and, therefore, the departmental proceedings be stayed till disposal of the same. It further held that in view of the extension of his service under rules for purposes of completion of the departmental proceeding was valid and shall stand till the conclusion of the departmental proceedings. Quoting Rule-19(3) of the Rules of the bank the Court held that in the circumstances the officer continues to be in service for the purpose of continuance and conclusion of such proceedings. Directions were then issued to continue with the subsistence allowance and the writ petition was dismissed. Civil Review No.74 of 1999 was then filed by the bank that under the regulations of the bank the extended date of service 4 having expired the petitioner was entitled to provisional pension under the Rules till the conclusion of the departmental proceedings which came to be allowed on 1.8.2000. Learned counsel for the petitioner has strenuously urged that the documents asked for were never given to the petitioner. That even if the petitioner did not participate in the departmental proceedings, the respondents under the service rules were nonetheless bound to follow the procedure provided in Rule-297 and 298 of the Reference Book on Staff Matter, Volume-5 Miscellaneous of Personnel, H.R.D. Department, State Bank of India, in conduct of the departmental proceeding quoted elaborately in paragraph-3 of the writ petition. He submits that even if it was an ex parte enquiry, the documents were required to be exhibited and accepted. Due intimation of the progress made in the proceedings had to be sent to the petitioner notwithstanding his absence so that he may be kept acquainted with the developments. It is next submitted that subsistence allowance was not paid to the petitioner and, therefore, the departmental proceedings were bad. Reliance has been placed on a decision of this Court in 2000(3) P.L.J.R. 10 ( Kumar Upendra Singh Parimar vs. B.S. Co-Opt. Land Dev. Bank Ltd. & Ors.) 5 of the manner in which a departmental proceeding was required to be held even though the delinquent may not have participated. It was lastly submitted that no order of dismissal under the Rules could be passed after the petitioner had superannuated and the extended period of his service for the purpose of departmental proceeding had also lapsed. Learned counsel for the bank urged that the question of supply of any documents, after the petitioner specified the same could have arisen only when he participated in the departmental proceeding. The petitioner did not participate. He is now, therefore, precluded from raising any issues of any prejudice caused to him. There has been no procedural irregularities in the conduct of the departmental proceeding. Learned counsel for the Bank lastly relies upon a judgement of the Supreme Court reported in AIR 2005(6) Supreme 87 (State Bank of India and Anr. Versus Bela Bagchi and Ors.) to contend that notwithstanding the fact that his services were extended for the purpose of departmental proceedings and the order came to be passed after the period of such extension when proceedings continued during the 6 period of such extension a punishment of dismissal was sustainable in law. The petitioner was well aware of his legal obligation to face the departmental proceeding when his challenge to the same in C.W.J.C. No.6364/98 came to be dismissed on 21.12.1998. He was also aware of the objection of the bank that it was not declining to give him any documents, but that if the petitioner appeared, filed his written statement and asked for specified documents the bank was willing to give it to him. If the petitioner chose not to participate in the departmental proceeding despite the same, the question of any prejudice to him does not arise. It was sought to be urged that the petitioner fell sick and could not participate. However, this argument could not be substantiated from any materials on record of any pleadings, whatsoever, in the writ petition in support of the same. If the petitioner voluntarily chose not to participate in the departmental proceeding, having suffered an adverse verdict of this Court earlier, he has himself to blame. He was fully conscious of the position that he was putting himself into and the possible prejudice to be caused to him. If aware of the consequences he refused to participate, this Court cannot accept the plea that whatever may 7 have been the conduct of the petitioner is irrelevant and notwithstanding anything the actions of the bank will have to be tested in accordance with their hand book for conduct of the departmental proceedings. This Court has no hesitation in holding that the guidelines are in the nature of the mode for an ideal proceeding when a delinquent for reasons may not participate, but the bank was unwilling to wait. Had the petitioner placed materials on record that he intimated the authorities of his difficulties in participation and asked for extension of time, ignoring all of which the authorities insisted on proceeding ex parte, the matter would have been entirely different. In that event there may have been occasion for this Court to examine the issue of compliance by the bank of its guidelines in an ex parte enquiry. The submission that subsistence allowance was not paid does not impress the Court. After the bank filed Civil Review Application, he was entitled to provisional pension. It is not the case of the petitioner that he has not been paid any provisional pension after the said order. In the case of Kumar Upendra Singh Parimar vs. B.S. Co-Opt. Land Dev. Bank Ltd. & Ors relied upon by the petitioner, the facts of the case were entirely different as can be noticed from para-4 of the 8 judgement. No presenting officer was appointed on behalf of the bank, no witness was examined to prove the charges, nor documents exhibited. The enquiry officer on his own looked and verified the documents from the charges. The enquiry officer was none other than the cousin of the complainant. It was in this background that this Court interfered with the order of punishment. That is completely distinguishable on facts. In the case of State Bank of India and Anr. Versus Bela Bagchi and Ors relied upon by the respondent bank the Supreme Court was considering the issue of departmental proceeding and punishment against an employee of the State Bank of India. The Court noted the provisions of Rule-20A and 20B of the State Bank of India (Supervising Staff) Service Rules, 1975 which postulates conducting of a departmental proceeding even after the employee ceases to be in the bank’s service. The Rules were introduced with effect from 1.4.1977 and read as follows:- “20-A. Notwithstanding anything to the contrary in these rules, no employee who has ceased to be in the Bank’s service by the operation of, or by virtue of, any rule, shall be deemed to have retired from the Bank’s service for the purpose for the Imperial Bank of India Employees’ Pension and Guarantee Fund Rules or the State Bank of India Employees’ Pension Fund Rules unless such cessation of service has been sanctioned as 9 retirement for the purpose of either of the said pension fund rules as may be applicable to him. “20-B. In Case disciplinary proceedings under these rules have been initiated against an employee before he ceases to be in the Bank’s service by the operation of, or by virtue of, any of these rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in these rules as if the employee continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings.” It was noticed at paragraph-13 of the judgement that in the aforesaid Rules the bank had the discretion to continue the service of an employee for the purposes of continuance and conclusion of the departmental proceedings. It was next noticed at paragraph-15 that a bank officer was required to exercise higher standards of honesty and integrity because he deals with the money of the customers. Good conduct and discipline are inseparable. “Acting beyond one’s authority is by itself a breach of discipline and a misconduct”. Considering the loss caused to the bank the Supreme Court declined to interfere with the order of dismissal passed on 2.7.1988 when the departmental proceeding had been initiated during the service term and extended lastly by an order dated 1.5.1988 to 31.7.1988 to facilitate completion of 10 departmental proceedings. In the facts and circumstances of the present case, as discussed above, when the petitioner himself questioned the initiation of the departmental proceedings, and after having failed to persuade this Court to interfere, instead of participating in the departmental proceeding chose to maintain a back seat and refused to participate, this Court has no option but to hold that he did so fully conscious of the nature of his own action and the attendant consequences that may follow upon the same. If he chose to run a risk he cannot now complain that those who caused him injury because of this voluntary risk taken by him are answerable for the injury. This Court finds no merit in this application. The writ application is rejected. KC ( Navin Sinha, J.)