The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 343 of 2023 ---- Mahesh Rajwar, Aged about-68 years, Son of Sahyam Lal Rajwar, Resident of Village-Obra, P.O.-Oredona P.S. – Petarwar, District-Bokaro. … … Appellant/Petitioner Versus 1.The State Bank of India Through its Deputy General Manager-cum-Appellate Authority, At-Administrative Office, S.B.I., P.O. & P.S.-Barmasia, District-Deoghar. 2.Regional Manager-cum-Disciplinary Authority, State Bank of India, Regional Business Office, P.O. & P.S.-Pakur, District-Pakur. … … Respondents/Respondents ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ------ For the Appellant For the Respondent : Mr. Rajesh Kumar, Advocate : Mr. Deepak Kumar Dubey, Advocate Order No. 05 : Dated 13th May, 2024 Sujit Narayan Prasad, J: -------- I.A. No. 5419 of 2023 1. The instant Interlocutory Application has been filed for condonation of delay of 239 days in filing the appeal. 2. Learned counsel for the appellant has submitted that the petitioner since was dismissed from service long back in the 2016, as such he is facing acute financial crisis and due to which he was not able to take further steps to file the present appeal. He somehow managed to contact the present counsel and requested him to take further steps for filing the present appeal and only after that the impugned order was obtained and the present appeal was filed. - 1 - 3. It has further been submitted that the delay in filing the appeal was caused due to financial crisis and the time spent collecting the necessary document to be filed along with the appeal is purely unintentional. 4. Learned counsel for the respondents-Bank has submitted that there is long delay in filing the present appeal, however, no counter affidavit to the Interlocutory Application has been filed. 5. This Court having heard learned counsel for the parties and considering the reason assigned in the Interlocutory Application is of the view that delay in filing the appeal is required to be condoned. 6. Accordingly, I.A. No. 5419 of 2023 stands allowed and delay in filing the appeal is condoned. L.P.A. No. 343 of 2023 Prayer: 7. The instant appeal, under Clause 10 of the Letters Patent, is directed against order dated 17.10.2022 passed in W.P. (S) No. 48 of 2020, whereby and whereunder the writ petition filed by the petitioner for quashing the order of dismissal passed by the disciplinary authority being
Legal Reasoning
confirmed by the appellate authority, has been dismissed. Brief facts of the case - 2 - 8. The brief facts of the case, as per the pleadings made in
Decision
the writ petition, reads as under: 9. The petitioner was initially appointed as Messenger in respondent-State Bank of India on 10.05.1988 and promoted in Clerical Cadre on 05.12.2008 and was going to retire on 31.11.2016 but dismissed from service on 24.10.2016 vide Memo No. 4803 dated 24.10.2016. Against the order of dismissal, the petitioner preferred appeal stating therein that after recovery of the amount in question, there is no loss to the bank. However, the appeal preferred by the petitioner stands dismissed. 10. Being aggrieved with the order of dismissal passed by the disciplinary authority and appellate authority, the petitioner approached this Court by filing writ petition being W.P.(S) No. 48 of 2020, which was dismissed vide order 17.10.2022 declining to interfere with the order passed by the disciplinary as well as appellate authority, against which the present appeal has been filed by the appellant-employee. Argument on behalf of appellant 11. Mr. Deepak Kumar Dubey, learned counsel appearing for the appellant has submitted that since the guilt is admitted on the behest of respondent-State Bank of India, as such he is not arguing the case on merit, so far as the finding - 3 - recorded by the enquiry officer is concerned, rather, the ground is being taken on the quantum of the punishment. 12. It has been submitted that as per Bipartite Settlement dated 10.04.2002, which pertains to disciplinary action against workmen staff and procedure, as applicable to the petitioner-appellant, there is another punishment, as has been referred under para 6 (b) i.e. to remove from service with superannuation benefits i.e., Pension and/or Provident Fund and Gratuity. 13. According to learned counsel for the appellant has submitted that at best the aforesaid punishment i.e., under para 6(b) ought to have been inflicted upon the petitioner by taking into consideration the long unblemished service career instead of punishment as referred in Clause 6 (a). 14. Learned counsel for the appellant on the aforesaid premise has submitted that since the learned Single Judge has not taken into consideration the aforesaid aspect of the matter, as such the order passed by learned Single Judge may be quashed and set aside on the ground of quantum of punishment. Argument on behalf of respondent: 15. Mr. Rajesh Kumar, learned counsel for the respondents- Bank has submitted that the petitioner was a bank official and he committed gross financial irregularities and - 4 - misappropriated the public money which he has admitted and further the enquiry officer has also found the charges proved, which shakes the confidence of the employer and public at large. It has further been submitted that duty performed by a banker is totally different to that of other public servant as they are custodian of the public money and tax payers money, therefore, there cannot be any leniency in awarding punishment and considering the aforesaid fact if the learned Single Judge has dismissed the writ petition refusing to interfere with the order passed by the disciplinary and appellate authority, the same cannot be said to suffer from error. Analysi: 16. We have heard learned counsel for the parties, perused the documents available on record as also gone across the finding recorded by learned Single Judge in the impugned order. 17. This Court, before examining the legality and propriety of the impugned order, thought it proper to first go into the legal proposition to exercise the power conferred under Article 226 and 227 of the Constitution of India in the case of making interference if the punishment is shockingly disproportionate and to examine the case of the petitioner in the light of the same. - 5 - 18. In this regard reference may be made to the judgment rendered by Hon’ble Apex Court in the case of Ranjit Thakur Vrs. Union of India and Others, reported in (1987) 4 SCC 611 wherein, while dealing with the case of summary court marshal wherein the punishment of dismissal from service was imposed upon the Army personnel on the allegation of disobeying the lawful command given by his superior officer and the Hon’ble Supreme Court, while interfering in exercise of power of judicial review, has laid down at paragraph 25 that judicial review generally speaking, is not directed against a decision, but is directed against the decision making process. The question of choice and quantum of punishment is within the jurisdiction and discretion of the court marshal, but the sentence has to suit the offence and the offender, it should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court marshal, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. In Council of Civil - 6 - Service Unions Vrs. Minister for the Civil Service reported in (1984) 3 WLR 1174 Lord Diplock said as follows:- “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call „illegality‟ the second „irrationality‟ and the third „procedural impropriety‟. That is not to say that further development on a case by case basis may not in curse of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of „proportionality‟ which is recognized in the administrative law of several of our fellow members of the European Economic Community; xxxxxxxxxx.” 19. At paragraph 26 the reference of judgment rendered in the case of Bhagat Ram Vrs. State of Himanchal Pradesh reported in AIR 1983 SC 454 wherein the Hon’ble Apex Court has held that it is equally true that penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Accordingly Hon’ble Apex Court, while interfering with the order of dismissal of the said army personnel, has corrected it in exercise of power of judicial review by setting aside the sentence with the order of reinstatement along with all consequential benefits. 20. In the case of Ram Kishan Vrs. Union of India and Others reported in (1995) 6 SCC 157 that is the case where - 7 - the constable was dismissed on the charge of abusing his superior but the nature of abusive language was not stated, hence the order of punishment of dismissal has been directed to be reversed to that of stoppage of two increments on the principle of making interference by reaching to the conclusion that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable. 21. In the case of Dev Singh vrs. Punjab Tourism Development Corporation Ltd. and Another, reported in (2003) 8 SCC 9 wherein at paragraph 6 it has been held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscious of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to consider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. For ready reference, the relevant paragraph 6 is quoted as under: “6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty - 8 - imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 22. In the case of Union of India and Another Vrs. S. S. Ahluwalia, reported in (2007) 7 SCC 257 wherein while dealing with the scope of judicial review in a matter of imposition of penalty as a result of departmental proceeding which has been held to be very limited but the court can interfere with the punishment if it is found to be shockingly disproportionate to the charges found to be proved and in such a case the court has to remit the matter before the authority for reconsideration of punishment (para 8). 23. In the judgment rendered in the case of Jai Bhagwan Vrs. Commissioner of Police and Others reported in (2013) 11 SCC 187, the said judgment was in the case of Assistant Wireless Operator who has been inflicted with the punishment of dismissal from service on the allegation that he was not in proper uniform and refused to give the Log Book to the Inspector when asked and snatched the same from him when the inspector has picked it from the table, but Hon’ble Apex Court, while exercising the power of judicial review, by referring to the judgment rendered in the case of - 9 - Ranjit Thakur Vrs. Union of India and Others (supra); Dev Singh vrs. Punjab Tourism Development Corporation Ltd. and Another (supra), has entered into the quantum of punishment and reversed the order of dismissal to that of the order of reinstatement. 24. In the case of Ishwar Chandra Jayaswal Vrs. Union of India and Others reported in (2014) 2 SCC 748 which was a case of illegal demand in which the order of dismissal was passed, but the Hon’ble Apex Court, by exercising the power of judicial review by relying upon the judgments rendered in the case of Union of India Vrs. S.S. Ahluwalia (supra) has reversed the order of dismissal to that of the order of reinstatement since it was shockingly disproportionate. 25. It is, thus, evident after going through the ratio laid down in the judgments referred herein above that the High Courts or the Hon’ble Supreme Court can exercise the power of judicial review on the pretext of the punishment having been found to be excessive and not commensurate with the offence committed. 26. It also requires to refer herein the judicial pronouncement of the Hon’ble Apex Court on the issue of quantum of punishment dealing with the case of the employees working in the financial institutions like the bank, - 10 - holding therein that the bankers are supposed to perform their duty with utmost sincerity and integrity and they are to be treated differently to the other civil servants on the ground that they are dealing with the public money. 27. Reference in this regard be made to the judgment rendered in Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar, [(2003) 4 SCC 364], which reads as hereunder: “14.A bank officer is required to exercise higher standards of honesty and integrity. He deals with the 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 v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194] 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. These aspects do not appear to have been kept in view by the High Court.” 28. Further, the Hon’ble Apex Court in the judgment rendered in State Bank of India & Ors Vs. S.N. Goyal - 11 - [(2008) 8 SCC 92] has been pleased to hold at paragraph 41 as under: “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.” 29. It is, thus, evident that the service rendered by the civilian and the bankers are on two different pedestal as the bankers are to discharge their duty with utmost sincerity. 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. - 12 - 30. Further, in the case of Union of India & Ors vs. M Duraisamy reported in (2022) 7 SCC 475 wherein at paragraph the Hon’ble Apex Court has been pleased to hold that there cannot be any leniency and undue sympathy in the matter of punishment awarded to the bankers. 31. For ready reference paragraph 15 and 17 of the judgment reads as under: 15. Merely because the respondent employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount along with penal interest and therefore there was no loss to the Government/Department cannot be a ground to interfere with the order of punishment imposed by the disciplinary authority and substitute the same from removal to that of compulsory retirement. Neither the Tribunal nor the High Court have, in fact, considered the nature and gravity of the misconduct committed by the delinquent officer. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the disciplinary authority. 17. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. Therefore, in the facts and circumstances of the case, both, the Tribunal as well as the High Court have exceeded in their jurisdiction in interfering with the quantum - 13 - of punishment imposed by the disciplinary authority and to substitute the same to that of compulsory retirement. 32. Now, adverting to the factual aspect of the present case, as per the allegation, which has been admitted by the petitioner huge amount of money was transferred by him in the account of his close relatives, for ready reference the relevant portion of charge is quoted as under: “Allegation (i): While crediting the proceeds from the list of beneficiaries of Govt. Briddawastha Pension received at Dharampur branch, he allegedly credited the amount pertaining to many deceased pensioners and pensioners with wrong account numbers, to his own account/joint accounts maintained with his close relatives and the account of Canteen Boy of Dharampur Branch through his own User Id. Allegation No. (ii). He allegedly gained unauthorized access to many deceased/in- operative accounts of Dharampur as well as Maharo Branch where he was previously posted and withdrew money from such accounts fraudulently with his PF ID 3809447 for pecuniary gain to either himself of his close relatives. Allegation-(iii) Due to his above acts of omission and commission, the Bank is likely to suffer a tentative loss of Rs. 5.03 lacs plus interest and expenses in addition to serious reputational loss. Allegation No.(iv) His above acts constitute malafides/breach of trust in performing his duties which is highly prejudicial to the interest of the Bank and if established, will tantamount to “Gross Misconduct” on his part in terms of paragraph 5(j) of the Memorandum of Settlement dated 10th April, 2002 (Bipartite).” 33. After framing of charge, the proceeding started by commencement of the enquiry and charge has been found to be proved by the enquiry officer. The respondent-bank by - 14 - taking into consideration the gross misconduct committed by the appellant in misappropriation of public money, accordingly, the disciplinary authority imposed the punishment of ‘dismissal from service without notice’ in terms of Para 6(a) of the Memorandum of Settlement dated 10.04.2002. The said punishment has been affirmed by the appellate authority. 34. The argument has been advanced while pressing the appeal by learned counsel for the appellant-employee that lenient view ought to have been taken and instead of dismissing from service as prescribed under para 6(a) of the memorandum at best the punishment as prescribed under para 6(b) which pertains to removal from service with superannuation benefit i.e., pension and/or Provident and Gratuity may be imposed upon the petitioner. 35. The question of showing leniency is the sole argument advanced on behalf of learned counsel for the appellant. 36. Law in this regard is well settled that there cannot be any compassion in imposing punishment and the same is strictly applicable in the matter of discharge of official duty by the delinquent employee, particularly the bankers as per the judgment rendered in the case of State Bank of India & Ors Vs. S.N. Goyal (supra) wherein it has been held that the employees of the bank in particular the Manager are expected - 15 - 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. 37. Further the interference which is to be shown on the quantum of punishment, the conscience of the Court is required to be shocked and when even the Court comes to the conclusion that the conscience has shocked then also the due reason has to be assigned that what reason is there for shocking the conscience of the Court, as per the judgment rendered in the case of Dev Singh vrs. Punjab Tourism Development Corporation Ltd. and Another (supra); Ishwar Chandra Jayaswal Vrs. Union of India and Others (supra) etc. 38. This Court by taking into consideration the fact that the bankers are to be treated in different pedestal to that of the civilian who is required to discharge duty with utmost sincerity and trust because they are the custodian of the public money and in a case where the guilt has been proved that the act of the appellant constituted mala fides/ breach of trust in performing the duties which is highly prejudicial to the interest of bank. - 16 - 39. Therefore, contention has been made on behalf of respondent-Bank that there is total loss of confidence upon the appellant, as such ground has been taken by the respondent-Bank that it is not a case to show compassion. 40. This Court considering the case laid down in the case of of Union of India & Ors vs. M Duraisamy (supra) and limited scope of judicial review with respect to decision passed by the administrative authorities in a departmental proceeding as also considering the nature of allegation which is serious in nature and is not expected from the bankers which ultimately caused loss to the people at general, and applying the principle laid down in the cases referred hereinabove if the learned Single Judge has not interfered with the impugned order, which according to our considered view cannot be said to suffer from any error. 41. Further, since the petitioner was working in bank and as has been held by Hon’ble Apex Court in the case of Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar (supra) that a bank officer is required to exercise higher standards of honesty and integrity as he deals with the money of the depositors and the customers, this Court is of the view that the impugned order passed by the administrative authorities suffers from no error. The learned Single Judge taking into consideration the - 17 - facts in entirety and the scope of judicial review in exercise of power conferred under Article 226 of the Constitution of India, according to our considered view, is correct in not interfering with the orders passed by the administrative authorities as impugned. 42. Accordingly, the instant appeal fails and is dismissed. 43. Pending Interlocutory Application, if any, stands disposed of. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Alankar/ A.F.R. - 18 -