SHIV KUMAR DAS vs STATE BANK OF INDIA

The petitioner is aggrieved of the penalty order dated 04.04.2017 and the appellate order dated 19.07.2017. He has suffered penalty of dismissal

from service.

Pursuant to a process for selection in the clerical cadre, the petitioner, who was selected as Assistant, was appointed under the respondent-State

Bank of India vide letter dated 30.11.2012. He was relieved from Regional Business Office, Dhanbad and directed to report the Branch Manager,

State Bank of India, Bhelatand Branch on 14.01.2013. A complaint alleging appointment through fraudulent means was received on 23.01.2013 in

which it was alleged that the petitioner never appeared in the written test, however, he appeared in the interview on 04.09.2012. On a preliminary

enquiry finding substance in the complaint, the matter was referred to GEQD, Kolkata for obtaining opinion on the signatures, before a final decision is

taken in the matter. On 12.01.2016, the petitioner was put under suspension under clause 12(b) of the Bipartite Settlement dated 10.04.2002. In

the departmental proceeding a charge-memo was served upon him on the allegation of unfair use and immoral practice in securing appointment.Â

Specific charge of misconduct under clause 5(m) and 5(o) of the Memorandum of Settlement of Disciplinary Action for Award Staff dated

10.04.2002 was framed against the petitioner.

Contending that during the departmental proceeding the petitioner has suffered serious prejudice on account of non-supply of OMR-sheet,

application form and voter’s identity card, Mr. Arpan Mishra, the learned counsel for the petitioner submits that the penalty of dismissal from

service is liable to be quashed on the ground of breach of the rules of natural justice.

As against the above, Mr. Manindra Kumar Sinha, the learned counsel for the respondent-State Bank of India contends that once allegations of

forgery and illegal means for securing appointment stand proved, the plea founded on the principles of natural justice would not render the penalty

order unsustainable. Contention raised on behalf of the respondent-Bank is, that fraud vitiates everything and an appointment secured through

fraudulent means must not be sanctified in law.

On admitted facts, the petitioner has participated in the departmental enquiry and he has been served a copy of the enquiry report and the report of

finger-print expert. Grievance raised by the petitioner on non-supply of OMR-sheet and voter’s identity card, in the face of       Â

CFSL report dated 17.07.2015, turns out to be without any substance. Non-production of CCTV footage in view of the enquiry report and CFSL

report dated 17.07.2015 becomes irrelevant. In “Devendra Kumar Vs. State of Uttaranchal & Ors.†reported in (2013) 9 SCC 363, the

Hon’ble Supreme Court has observed as under:

“dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such

circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf.â€​  Â

Power of judicial review by the writ Court under  Article 226 of the Constitution of India has been explained by the Supreme Court in “Syed

Yakoob Vs. K.S. Radhakrishnan†reported in  AIR 1964 SC 477. It has been held by the Supreme Court that only in cases where the order

of punishment has been passed in breach of the rules or in breach of the rules of natural justice, a writ of certiorari shall lie. Another instance in

which the writ Court would interfere with the decision of the departmental authority is, where the departmental authority has recorded a finding

contrary to the materials on record which renders the penalty order perverse. It is also well-settled that it is not the merit of the decision which, in

exercise of the powers of judicial review under Article 226 of the Constitution of India, is examined by the writ Court, it is the decision making process

which is under scrutiny. In “State of Andhra Pradesh & Ors. Vs. Chitra Venkata Rao†reported in (1975) 2 SCC 557, the Supreme Court has

observed that the writ Court does not sit in appeal over the decision of the departmental authority and it does not act as an appellate authority.

In view of the facts established during the departmental enquiry and the law on the subject, finding no infirmity in the penalty of dismissal from

service, the writ petition is dismissed. Â