Srimanta Pratim Barooah vs State Bank of India and Others

J.N. Sarma, J.—This writ application has been filed challenging the legality and validity of the order dated January 4, 1998 (Annexure-L) by which the petitioner was dismissed from service, shortly for "Breach of Trust" reposed on him by the Bank. There was an appeal against that order and by order dated March 1, 2000 the appeal was dismissed. That is Annexure-N. Hence, this writ application.

The petitioner herein joined the Bank (State Bank of India) hereinafter called as "SBI" in the year 1974 as a Clerk. In that capacity the petitioner served for 8 years and thereafter the petitioner was promoted to the Managerial cadre in the year 1981 and posted at Dispur Branch where he worked till 1988, thereafter the petitioner was transferred and posted as Manager (Agricultural Division) of SBI, Kohima where he served till September, 1990. Thereafter the petitioner was transferred and posted at Zonal Office of the Bank of Shillong. After sometime the petitioner was transferred and posted at proposed Branch at Khanapara which was opened on March 30, 1991 as Branch Manager, designate. He served at Khanapara from March 30, 1991 to June 13, 1992. He was transferred again to Jowai Branch on April 10, 1992. An appeal was filed against this order of transfer, but that was rejected and he handed over charge to the new incumbent. The petitioner applied for sick leave and that was duly sanctioned. But within the leave period he received a letter asking him to report for duty, but he could not report for duty as there was curfew in Shillong. When the curfew was lifted on October 15, 1992 the Assistant General Manager (immediate controlling authority of the petitioner) came down from Shillong and delivered a suspension order to the petitioner at his Guwahati residence. The order of suspension is dated October 1, 1992. It may be stated here that even after the suspension order was passed, the petitioner was asked to report for duty within October 12, 1992. The petitioner had to vacate his official quarter and he shifted to a rented house and he also communicated the change in address to the controlling authority. It may be stated here in that on May 11, 1992 he wrote a letter to the authority vide Annexure-B regarding antedating some banker''s cheques. That Annexure is quoted below:

Miscellaneous

Security and Safety of Life

With reference to above I would like to mention that I have received threat of my life in connection with obliging a gangster and Coal mafia of Beltola area. The person came to the branch and threatened me at gunpoint that whoever comes with his reference should do a favour of issuing banker''s cheques at a back date for the interest best known to them. As bank''s norms do not permit me, I have to oblige them for the threat of my life. The person even threatened me not to inform to the local Police authority otherwise I would face dire consequences.

Under the circumstances I seek Zonal Office instructions and intervention in this matter.

Yours faithfully,

Sd/-

Branch Manager"

The petitioner did not receive any reply or response to this letter. The petitioner was not paid his subsistence allowances etc. as required and the petitioner had to file a writ petition being Civil Rule No. 2376/1994 before this Court for quashing the order dated October 1, 1992. Subsequently, the respondent No. 2 issued a charge-sheet dated December 16, 1993 against the petitioner alleging certain irregularities while the petitioner was posted as Branch Manager, SBI, Khanapara Branch from the period from March 30, 1991 to October 15, 1992. The Charge-Sheet is Annexure-C to the writ application and the relevant portion of it is quoted below:

"It is observed that you have committed the following irregularities of a serious nature while you were posted as Branch Manager, State Bank of India, Khanapara Branch during the period March 30, 1991 to October 15, 1992.

(a) In violation of the Bank''s extant instructions, you issued 12 numbers ante dated Banker''s cheque to various parties as per details enclosed in Annexure-1. The relative Banker''s cheques were actually issued on March 11, 1992, May 12, 1992 and May 20, 1992, but those were antedated and shown to be issued on May 09, 1992 in order to accommodate the applicants in respect of certain payments due to be made to the Sales Tax authorities. The dates of the cheques were subsequently altered so as to tally with the dates of the deposit vouchers. The banker''s cheques were, thereafter, passed by you for payment.

(b) It is observed that you (sic) permitted an overdraft of Rs. 1,69,643/28 in the current account of Singh Coal Traders beyond your discretionary powers, this was granted without obtaining any written request/undertaking from the party in utter disregard of the Bank''s instructions and procedures in the matter. Moreover, you also failed to report the matter to your Controlling Authority. It is now reported that the party has since left the place of business and is not traceable. You did not follow the extant instructions in the matter and have, thereby exposed the Bank to substantial financial loss."

Thereafter another Charge-Sheet was issued on March 10, 1994 vide Annexure-D levelling some more charges, but basically charges are almost same as will be evidence from a comparison of two charge-sheets. The charge-sheet which is Annexure-D is quoted below:

"Certain lapses of serious nature and gross irregularities were allegedly committed by you while you were posted as Branch Manager, Khanapara Branch, during the period March 30, 1991 to October 15, 1992. It has, therefore been decided to initiate disciplinary action proceedings against you in accordance with the provisions of the State Bank of India (Supervising Staff) Service Rules (corresponding to State Bank of India Officers Service Rules w.e.f. January 01, 1992) which are applicable to you.

In this connection, we enclose Annexure-I containing the Articles of Charges alleged against you and Annexures-II and III incorporating the Statement of imputation of lapses on which the charges are based.

You are hereby directed to submit your written statement of defence in terms of Rule 50(2)(iii) of the Service Rules (corresponding to Rule 68(2)(iii) of the State Bank of India Officers Service Rules w.e.f. January 01, 1992). In response to the Articles of Charge framed against you within 15 days from the date of receipt of the letter and its enclosures. In case you want to peruse the related documents, you have our permission to do so after obtaining the approval from your Controlling Authority.

Please note that if you rail to submit your written statement of defence within the period stipulated above, it will be presumed that you have nothing to state in your defence on the charges alleged against you and in that case, further action will be initiated against in terms of Rule 50(2)(iv) of the Service Rules (corresponding to Rule 68(2)(iv) of the State Bank of India Officers Service Rules w.e.f. January 01, 1992) without waiting for your written statement of defence.

In the meantime, please return the enclosed duplicate copy of this letter after recording thereon your full signature with date in ink, in token of your having received the original along with the enclosures.

Yours faithfully,

Sd/-

General Manager (Planning)

(Disciplinary Authority)"

That on June 9, 1995 on the basis of first Charge-sheet (Annexure-C) punishment: was imposed on the petitioner withholding promotion for 5 years in terms of Rule 67(c) of the State Bank of India Officers Service Rules. This order of punishment was received by the petitioner on July 19, 1995. Thereafter the. authority initiated a departmental proceeding against the petitioner in connection with the Charge- sheet dated March 10, 1994 and that departmental proceeding commenced on August 21, 1995. No show cause was submitted by the petitioner against the 2nd charge-sheet, but the petitioner appeared before the departmental authority and informed the departmental authority that with regard to the first charge-sheet he has already been punished. Before we proceed further, let us have a look at Rule 68 of the aforesaid Rules.

Rule 68 is basically with regard to decision to initiate and procedure for Disciplinary Action. It is not necessary to go to the other sub-rules save and except Rule 68(2)(xv) to (xxi). Those are quoted below:

"(xv) When the case in support of the charges is closed, the officer may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the officer shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer.

(xvi) The evidence on behalf of the officer may then be produced. The officer may examine himself as a witness in his own behalf, if he so prefers. The witnesses, if any produced by the officer shall then be examined by the officer and may be cross-examined by the Presenting Officer. The officer shall be entitled to re-examine any of his witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the Inquiring Authority.

(xvii) The Inquiring Authority may, after the officer closes his evidence, and shall if the officer has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer to explain any circumstances appearing in the evidence against him.

(xviii) The Inquiring Authority may after the completion of the production of the evidence, hear the Presenting Officer, if any, appointed and the officer or his representative, if any or permit them to file written briefs of their respective cases within 15 days of the completion of the production of evidence, if they so desire.

(xix) If the officer does not submit the written statement of defence referred to in Clause (iii) on or before the date specified for the purpose or does not appear in person, or through the officer''s representative or otherwise fails or refuses to comply with any of the provisions of these rules which require the presence of the officer or his representative, the Inquiring Authority may hold the enquiry ex parte.

(xx) Whenever any Inquiring Authority, after having heard and recorded the whole or part of the evidence in any inquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Authority which has, and which exercises, such jurisdiction, the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.

Provided that if the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall and cause that to be examined, cross-examined and re-examined as hereinbefore provided.

(xxi) (a) On the conclusion of the inquiry, the Inquiring Authority shall prepare a report which shall contain the following:

(1) a gist of the articles of charge and the statement of the imputations of misconduct.

(2) A gist of the defence of the officer in respect of each article of charge.

(3) An assessment of the evidence in respect of each article of charge.

(4) The findings on each article of charge and the reasons thereof.

Explanation: If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge.

Provided that the findings on such article of charge shall not be recorded unless the officer has either admitted specifically and not by inference the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(c) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include:

(1) the report of the inquiry prepared by it under

(a) above;

(2) the written statement of defence, if any, submitted by the officer referred to in clause (xv);

(3) the oral and documentary evidence produced in the course of the inquiry.

(4) Written briefs referred to in clauses (xviii), if any, and

(5) The orders, if any made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry."

The Inquiry was conducted on the following dates and the reasons for adjournment and findings are quoted below:

October 30, 1995 Hearing has been adjourned due to objection raised by the Defence as under:

"The Defence contention is that it is the charge against the O.P.A. by which it is alleged that the O.P.A. has violated some provisions of his Service Rules. The allegations are to be substantiate the charge leveled against the OPA. Therefore, when the basic charge is same, this inquiry cannot be held in accordance with law, where on the same charge, there had already been a departmental proceeding and punishment has also been imposed. Therefore, no enquiry can be held against the OPA, for the offence for which he had already been punished. Accordingly, Defence request to close the case.

As the points raised by the Defence relates to some legal decision, the inquiry was postponed by me. Seek Head Office clarification on the points raised by the Defence.

January 21, 1996 Due to absence of Charged Officer and Defence representative.

February 28, 1996 Due to absence of Charged Officer and Defence representative.

March 15, 1996 Due to absence of Defence representative.

March 25, 1996 Defence could not be present due to non-relieved from the Branch works.

April 19, 1996 Due to absence of Defence representative.

July 15, 1996 Presenting Officer was out of station.

August 7, 1996 Heard (sic) ex parte,

From the above Chart, it was observed that on the enquiry dates either Charged Officer or Defence Representative did not turn up. In this connection, I refer to the proceedings dated April 19, 1996, which read as under:

"Shri S.P. Barooah, Charged Officer, represented that he could not take part, in today''s enquiry due to absence of his Defence. Accordingly, it has been decided to give him last chance. If the Defence does not turn up on the next hearing day, the hearing will be held without Defence representative and no further time will be allowed for the said purpose.

As both Charged Officer and Defence framed did not turns up, today''s hearing, it has been decided to hold the enquiry ex parte without giving any further adjournment and advise the Presenting Officer to present the case. The Presenting Officer also advised to submit a list of documents by which the articles of charges are proposed to be proved."

The Officer by writing a letter on November 12, 1996 informed the authority the reasons of the adjournment and he also objected the proceeding and that is quoted below :

"Dear Sir,

I have received your letter No. DE/37 dated October 30, 1996. In this connection I would like to submit the following for your information, and necessary action.

That the dates of hearing fixed by you and the remarks against all the dates as mentioned by you is not correct as per my records it should be as under:

January 21, 1996 Inquiry could not be held since that day was a Sunday.

February 20, 1996 Telegram sent to you that the D.R. is not well, requested to postpone.

March 15, 1996 Inquiry officer did not communicate Sri. P.P. Dutta''s Controller to release him to attend the hearing at Shillong Zonal Office hence not released from SBI A.T. Road Branch.

March 25, 1996 Defence could not attend on account of non-relief from the branch due to yearly closing.

April 19, 1996Inquiry Officer''s letter fixing the date for hearing was dispatched from Shillong on April 11, 1996 only. April 12, 1996 was the last working day before Bihu holidays starts i.e. April 13 to April 16, 1996. Defence Representative went on leave w.e.f. April 17, 1996 and went to home town i.e. Dhubri. So, the letter did not reach him due to late dispatch, otherwise his controller would have relieved him to attend the hearing.

August 17 1996 Myself fell sick and intimated to inquiry officer by way of express telegram on August 6, 1996 and the Defence Representative''s controller was also not intimated by the inquiry officer to relieve Sri P.P. Dutta my Defence Representative.

From the above statement, it appears that myself or my Defence Representative shows no negligence in attending the said inquiry.

The ex parte decision of yours is unwarranted, looks biased, hence illegal, and seems to be a part of nefarious design. Similar approach was taken by the Bank in disposing the minor penalty proceeding without giving main opportunity to defend the case, the Bank had inflicted a minor penalty for withholding promotion for 5 years while sending the statement of imputation of lapses dated December 16, 1993 to my old address inspite of my Regd. Letter No. 2357 of October 20, 1992 informing my change of residential address to my controller, the fact of which the Bank has concealed in their show cause submitted to honourable Gauhati High Court, which came to light when the Bank notified in "The Shillong Time" April 7, 1995.

Now you have taken the same course of action to dispose of the same charges (now under major penalty proceeding), which amount to denial of natural justice. My case of illegal suspension is under subjudice and the Bank has submitted both the charge memos (under minor and major penalty proceeding) alongwith the show cause to the honourable Gauhati High Court, and the hearing of the case is fixed (serial No. 55, B/Bench, dated November 12, 1996 onwards) and charges will be before them for examination and the arbitrary disposal/conclusion by disciplinary authority/inquiry authority will be taken up there to meet the ends of justice.

For the reasons stated above, holding the departmental Inquiry itself was illegal and question of holding of ex parte hearing ought not to have come. Therefore, for fitness of thing please keep the departmental inquiry in abeyance till the case is finally disposed of by the Hon''ble High Court of Gauhati before whom the matter is pending.

Yours faithfully,

sd/-

(S.P. Borooah)"

Be that as it may, the report was submitted and thereafter it was accepted by the Disciplinary Authority and the punishment as indicated above have been imposed.

I have heard Mr. P.K. Goswami, learned senior counsel for the petitioner and Mr. L. Talukdar, learned counsel for the Respondent-Bank. Mr. Goswami makes two submissions (i) that the writ Court cannot question the decision but certainly it can look to decision making process meaning thereby that whether there was adherence to the Rules including the Principle of Natural Justice in conducting the enquiry and if the writ Court finds that there was deviation from it, the writ Court can quash the decision making process.

(ii) that the punishment which has been imposed is shockingly disproportionate to the gravity of the offence and is shocking to the conscience of the Court. On the other hand, Mr. Talukdar, learned counsel for the Bank submits that in this particular case, the officer even did not submit his show cause and a bare perusal of the record (relevant portion of it has been quoted above) will show that the inquiry authority had no option, but to proceed ex parte. He further submits that the authority adhered to the Rules and complied with the requirements of Natural Justice. Accordingly, this writ Court should not delve into the matter in order to find out whether there was some slip here and there in the decision making process. He further submits that each slip may not be so fatal as to bring a fall of the whole decision making process. Regarding fairness, he submits that the petitioner herein is a Manager of the Bank and once the Bank comes to a finding that there was ''Breach of Trust'' the question of retaining him in the service of the Bank does not arise. He further submits that the punishment imposed on the petitioner is not shocking, disproportionate to the gravity of the offence. Mr. Goswami, learned senior counsel for the petitioner submits that even when the proceeding is ex parte the authority is duty bound to comply with the Rules and as and when the proceeding is ex parte it does not mean that the enquiry shall be an empty formality and the Officer shall be found guilty without adequate materials on record or without adhering to the norms of the decision making process as laid down by the Rules. He submits that domestic enquiry in whatever form it may be considered cannot be a force. It must inspire the confidence. Mr. Goswami submits that in this particular case there was only one witness i.e. one P. Sarma Roy and the Presenting Officer as will be evident from the proceeding of the departmental enquiry at the same time acted as Presenting Officer and at the same time be deposed as witness. He draws my attention to the report which shows that this is correct. The Presenting Officer in his over all enthusiasm brought in some materials and that was also recorded by the Inquiry Officer. As a matter of fact, with regard to allegation No. 1 the witness did not say anything. He adduced evidence only with regard to allegation No. 2. Further, after the closure of the evidence by the department no chance whatsoever was given to the defence to adduce his evidence. Sri Goswami in support of his contention relied on the following decisions:

i) Jaluluddin Laskar v. State of Assam and three Ors. 1995 (2) GLT 371. In this case a single Judge of this Court pointed out that the initial burden to sustain the departmental proceeding by production of the record to show that the procedural safeguard given to an employee has been adhered to and the authority is duty bound to satisfy the conscience of the Court so that no certiorari may be issued and the record may be accordingly certified. The records were produced by the Bank in that particular case and the question was that, whether on the face of that record the certiorari as prayed for can be issued. This Court further pointed out that the standard of proof to be adopted in a departmental proceeding is not that of in a criminal case, but at the same time, it does not mean that the Enquiry Officer shall have the liberty to do anything and everything according to his own whims and caprices. If there is any procedure that must be followed by the Enquiry Officer.

ii) Union of India (UOI) Vs. T.R. Varma, . Mr. Goswami relies on this case to substantiate this contention that in a situation where there is no Rule in a departmental proceeding the authority is duty bound to adhere to the Principles of Natural Justice. The Supreme Court in paragraph 10 pointed out as follows:

"Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them."

iii) Meenglas Tea Estate Vs. Its Workmen, where the Supreme Court pointed out that after the close of the evidence the delinquent officer must be given a chance to rebut the evidence led against him. The Supreme Court pointed out that this is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted.

iv) State of Uttar Pradesh and Another Vs. Sri C.S. Sharma, . That was a case where no adequate opportunity was given to the delinquent officer for production of his defence witness or examine himself and on that ground the Supreme Court held that the whole enquiry is to be vitiated.

v) S.L. Kapoor Vs. Jagmohan and Others, where the Supreme Court pointed out as follows:

"The Principles of natural justice know of no exclusionary role dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

vi) Deokinandan Sharma Vs. Union of India and Others, . That also was a case under the same Service Rules. In that particular case, examination of witnesses on behalf of the Bank was completed. List of witnesses was filed by the defence. Date was fixed for their examination on that date, however, neither the defence representative appeared nor single witness was produced on behalf of the defence. The case was adjourned. On adjourned date also neither any defence representative appeared nor any defence witness was produced and thereafter the report was submitted by the Enquiry officer as inspite of full opportunity was afforded to the delinquent to adduce evidence, but no witness was examined and in that situation the Supreme Court held that reasonable opportunity was afforded to the delinquent to adduce evidence during the course of enquiry. That is not the situation in the case in hand. The situation in the case in hand is absolutely different as will be evident from the relevant portion of the enquiry proceeding quoted above after completion of the evidence on behalf of the Bank no date was fixed for examination of defence witness and it must be held that is a denial of reasonable opportunity to the delinquent employee as required under the Rules and on this short ground alone, I quash the order of dismissal (Annexure-L) as well as Annexure-N the appellate order. In view of the decision at Point No. 1 as urged by Mr. Goswami there is no need to discuss Point No. 2. It may be staled herein that there is further requirement as provided in the Rules that before the enquiry officer proceeding to write the report, the evidence adduced as against the officer must be explained put to him so that the officer may provide necessary explanation to it. That also was not done. Straightaway after the close of the evidence by department the inquiry authority submitted the report and that was accepted and was imposed, that is without adhering to the Rules of enquiry as indicated above.

The writ application is allowed. The impugned orders are set aside. No costs.