Hon. K.N. Pandey, J.
1. We have heard Shri Samir Sharma for the petitioner. Shri Vipin Sinha appears for the respondent-bank.
2. This writ petition is directed against the orders dated 5.8.2000 passed by the General Manager (D & PB), as the Appointing Authority of the petitioner imposing penalty of dismissal against him after a departmental enquiry, and the appellate order dated 19.3.2001 passed by the Chief General Manager, State Bank of India, as the Appellate Authority rejecting the appeal.
3. The petitioner joined State Bank of India as clerk-cum-typist in the year 1973. He was promoted in the JMGS-I in the year 1991 and in the MMGS-II in the year 1996. Prior to his promotion in MMGS-II he was posted as Manager at Indian Oil Corporation Branch of the bank at Panki, Kanpur Nagar. where he was directed by the Asstt. General Manager-I, Zonal Office, State Bank of India, Kanpur to finance the borrowers under the Personal Segment Scheme (Big Buy), of consumer goods, repayable from their salaries received from the company.
4. The petitioner sanctioned various loans under the scheme to the permanent employees of M/s Duncons Industries Ltd., Panki, Kanpur Nagar. In order to safeguard the bank's interests, permanent check off facility towards repayment of the loans, was provided for deducting installments at source from the monthly salary as was agreed between the parties and affirmed by the employer of the borrowers. The accounts were duly inspected/ verified by the verification auditors in February 1996 and were found in order in the audit report dated 13.2.1996.
5. The petitioner was transferred to Shukla Ganj Branch of the bank at Unnao. His successor Shri Lal Chand confirmed that the check off facility under various Personal Segment Scheme to the employees of M/s Duncons Industries Ltd. was conducted in order, and timely payments were being received. The petitioner was transferred from Shukla Ganj, Unnao Branch to the lead bank office Maharajganj, Gorakhpur in March 1997, where he received, through the AGM, Gorakhpur on 6.8.1997 a suspension order in terms of Rule 68A (1) of the State Bank of India (Officers) Service Rules. He was attached to the branch office of the bank at Gorakhpur. The petitioner preferred an appeal against the suspension order under Rule 69 (1) on 25.8.1997. The appeal was dismissed on 5.8.1998.
6. A chargesheet dated 13.7.1998 was served on the petitioner on 6.8.1998. The statement of articles of charges against the petitioner for having committed serious irregularities in sanction, disbursement and conduct of loans under Big Bye (P) Segment Scheme and disbursement of car loan for the period July 1995 to February 1996 alleged as follows:-
"CHARGES IN BRIEF ARE AS UNDER CHARGE NO.1 You extended big buy financing under ''P' Banking Segment in a reckless manner to 107 I.O.C. employees and released/ disbursed of approx.Rs.29/30 lacs between August 1995 to February 1996 by issuing Bankers Cheques in favour of M/s Parakash TV Agencies, Prakash Radio & Electric Co., Suman Electronics & Mamta Furniture. You did not satisfy yourself about the supplier's whereabouts before releasing/ disbursing these loans. Neither manufacture's serial no. in respect of TVs, refrigerators etc. have been furnished on the bills issued by these firms/ parties against Big-Buy loan accounts, nor their quotations/ bills contain complete addresses, indicating the firms being fake/ non-existent.
CHARGE NO.2 You engaged services of Sri A.K. Mathur a middleman, who allegedly misappropriated substantial amount in connivance with you. This is indicative of the fact that you have made personal gains in the deals, in the name of tapping business at the branch.
CHARGE NO.3 You failed to ensure end-use of the funds so released and disbursed in these Big-Buy loans granted under your discretionary powers. You procured bogus possession certificates from the Big-Buy borrowers and wrongfully confirmed to the controllers about the proper end-use of the funds under Big-Buy loan a/cs.
CHARGE NO.4 The manner and the modus operandi with which you worked as Branch Manager, IOC (Kanpur) Branch in financing Big-Buy loans indicates that you acted irresponsibly in exercising the Branch Manager's discretionary powers.
CHARGE NO.5 You not only misrepresented relevant facts to the controllers for availing a car loan of Rs.one lac in November 1995 but also deliberately concealed reporting of disbursement of the said loan against purchase of another car with different registration No. by having tampered valuation report there against."
7. The details on which the charges were based were provided in Annexure Nos.1 to 5 appended to the chargesheet.
8. On the first date fixed in departmental enquiry on 21.12.1998 the petitioner denied the allegations. The petitioner stated that the allegations are not acceptable to him. The enquiry officer directed the presenting officer to prepare a list of prosecution documents to be perused by the petitioner on 25.1.1999, and to submit a certificate of inspection. He also directed that charged officer will also prepared a list of defence document to give names and addresses of the witnesses. The presenting officer was required to segregate the documents for arranging perusal by the charged officer and decide to fix the date for hearing after the exchange of documents, with the list of witnesses. On 7.10.1999 the enquiry officer noted that the petitioner had in the inspection certificate dated 26.5.1999 noted that only photocopies were shown, which is not readable on which original copies were shown to the petitioner. The presenting officer verified that he has various defence document and submitted inspection certificate.
9. The petitioner submitted his reply on 25.11.1999.
10. It is alleged that after recording evidence of Shri A.K. Jaiswal the enquiry proceedings were concluded, and an enquiry report was submitted on 9.12.1999 in which the Enquiry Officer added up certain new charges without affording any opportunity to the petitioner. On allegation no.1, the Enquiry Officer found that in collusion with Shri A.K. Mathur, an employee of IEL, Kanpur orders were given exclusively to few firms, which were not dealing in the goods, which they supplied. These firms were not found located at the addresses furnished in the quotation/ receipts etc. M/s Prakash Agencies and M/s Suman Electronics were main suppliers to the borrowers, however, existence of these firms were doubtful, which was proved from the report of Shri Vinod Lal Chandani, a lawyer of the bank. The lawyer verified and reported that sales tax registration numbers given on their bills was not correct. On the second allegation regarding addresses recorded on the receipts of M/s Suman Electronics; Mamta Furniture and Prakash Agencies, these firms were not found located at 109, LIG, Hemant Vihar, Burra-2, which was the residential address of Shri A.K. Mathur, the middleman. The Enquiry Officer did not find allegation proved as the prosecution did not establish that the above firms were located in the residence of Shri Mathur. He observed that merely producing paid bankers do not prove that the address of the supply firm and Shri Mathur were the same. The prosecution should have produced records of Punjab National Bank, where these firms had their accounts to confirm their address. On the third allegations regarding quotation/ bills, printed in collusion with Shri A.K. Mathur's relative, the Enquiry Officer found the charge to be partly proved, on the findings that the prosecution did not produce any material or oral evidence to prove that Shri A.K. Mathur was working in collusion with charged officer, if there was any collusion, that must be beneficial to the parties. The prosecution did not prove as to how the parties were benefited after collusion. The prosecution also failed to prove that Shri A.K. Mathur and alleged supplier were his brothers and sisters in law. The IOC employees were availing loan from IOC Branch as they were getting loan from their department at lower interest rates. He found that the petitioner persuaded the controlling office to increase the business of P-Sigment Advance and so he financed the employees of M/s Duncon Industries Ltd., Panki, who were ready to give check off facility to ensure repayment of loans as per instructions within his discretionary powers.
11. On allegation No.2, regarding collaboration with Shri A.K. Misra the allegation that bogus and fake bills of non-existent firm/ suppliers and the issuance of bankers cheques in favour of the fake firms, namely M/s Prakash Agencies; Suman Electronics and Mamta Furnitures was found to be proved, on the spelling mistakes in the bills of Prakash Electronics and Suman Electronics. These bills also did not mention their telephone number and gave fake sales tax registration number. The disbursement in cash for reduced amount to true borrowers through middlemen was not proved. On allegation no.3 for having failed to ensure end use of the funds disbursed under the Big-Buy financing at IOC, Kanpur Branch in as much as care was not taken to ensure supply of the articles and post disbursement inspection, the Enquiry Officer found the allegation to be partly proved in as much as the petitioner produced the documents DEx-34, letter from Inspection Department and DEX-36 relating to quality of advance and classification of assets in general.
12. On allegation No.4 that no S/B or C/A was opened in the name of the Big Buy borrowers as required under the Scheme and the margin money in respect of these loans were deposited in cash and further that all applications were filled up in a particular hand writing which resembles that of Shri A.K. Mathur, the middleman, the Enquiry Officer found allegation to be not proved as all the borrowers had put their signatures in token of having deposited the margin in cash by them as no deposit accounts of the borrowers were opened, and in view of the check off facility, the deposit of margin in cash was not found to be irregularity. The enquiry officer found quite similarity in handwriting in only few application and in the absence of hand-writing expert's opinion charge was not found to be proved.
13. On the fifth and last allegation against the petitioner for having purchased Car No.UMY-5787 costing Rs.50,000/- as against the demand loan of Rs.1 lac sanctioned by the controllers in respect of a second hand car no.UMY-7100 costing Rs.1.25 lacs and misusing valuer's report dated 11.11.1995 and by making alterations and thus misutilising bank loan and further in managing to receive the difference in amount of Rs.50,000/- in cash at IOC Branch through two demand vouchers dated 17.11.1995 in which seller's signature was forged, the Enquiry Officer found the first allegation of mis-representing the facts to be not proved; he, however, found that the signatures on the seller's receipt were forged and that the valuer's report was tampered. In this manner the enquiry officer found the following allegations to be proved:-
"ARTICLES OF CHARGE Based on proceedings documents listed during the course of enquiry, Presenting Officer's brief and charged officer's defence brief, I find:-
Allegation No.1 (i) Fully proved
(ii) Not proved
(iii) Partly proved Allegation No.2 (i) Fully proved
(ii) Not proved Allegation No.3 Partly proved Allegation No.4 Not proved Allegation No.5 (i) not proved
(ii) fully proved CONCLUSION From the forgoing and the submission made by the charged officer it is evidence that although the charged officer financed a large number of employees under Big Buy Scheme and repayment is assured the way advance were given e.g. fake bills/ receipts/ unreputed firms, indicate that assets were actually not purchased. However, the allegation that the bills/ receipts/ purchases were done through the middleman or the charged officer himself got benefited is not proved in the absence of documentary or oral evidences.
Further, the way in which payment were made to Smt. Pritam Kaur in cash instead of Banker's cheque give indication of malafides on the part of the charged officer.
Thus the charged officer while posted as Branch Manager at IOC (Kanpur) Branch during the period from July 1995 to February 1996 failed to discharge his duties with utmost devotion, diligence, integrity and honesty and acted in a manner unbecoming of a Bank official in deliberate violation of Rule 50 (c) of State Bank of India Officer's Service Rules.
(R.P. Shah) Inquiring Authority."
14. The disciplinary authority after summarizing the findings of the enquiry officer gave a notice to the petitioner along with copy of the enquiry report, which he accepted to submit his reply.
15. The petitioner submitted his reply. The Disciplinary Authority found him guilty of the lapses pointed out by the Enquiry Officer; drew his own conclusions and decided to impose upon the petitioner a penalty of dismissal form the bank service in terms of Rule 67 (j) of the State Bank of India Officers Service Rules.
16. The petitioner filed appeal on 11.9.2000, which was dismissed by the appellate authority on 19.3.2001.
17. It is submitted by learned counsel for the petitioner that the Disciplinary Authority has failed to comply with the provisions prescribed in the State Bank of India Officer's Service Rules. Out of four witnesses only one witness was produced , who did not prove the allegations levelled against the petitioner. The enquiry was concluded in hot haste, on the same day on 8.10.1999, when the only witness produced by the prosecution was examined at 3.30 p.m., without questioning the petitioner on circumstances against him in clear violation of Rule 68 (2) (18) of the Rules. The Enquiry Officer did not supply the list of documents as sought by the petitioner in his letter dated 18.9.1999 and concluded the enquiry in the absence of the documents. No other business was transacted on the only two dates fixed in the enquiry.
18. Learned counsel for the petitioner submits that the petitioner had requested for summoning documents in his letter dated 18.6.1999 and had requested for a list of names and address of 107 IOC employees and also the amount of advances financed to them by the petitioner. The documents and the details were not supplied to the petitioner. Only three dates were fixed in the enquiry namely 21.12.1998; 7.10.1999 and 8.10.1999. The enquiry officer closed the proceedings on 8.10.1999 after examining only one of the witnesses of the department, who could not prove anything against the petitioner. Even if his entire statement is accepted, no allegation was proved against the petitioner. Learned counsel for the petitioner has relied upon the entire cross-examination of the only witness namely Shri A.K. Jaiswal, Branch Manager, Colonel Ganj Branch.
21. It is submitted by learned counsel for the petitioner that the points raised in the defence brief of the petitioner were not considered by the enquiry officer in his enquiry report and the disciplinary authority. Some of these points are highlighted as follows:-
1. When the petitioner took over as Branch Manager, IOC, Kanpur in July, 1995, he explored the possibility of propagating ''P' Segment Scheme to the employees of M/s Duncan Industries Ltd., Panki. The IOC employees were not interested as they were getting loan facility from the employer at nominal rate of interest. Since the petitioner was posted at Indian Explosive Ltd, Panki Branch for two years from 1992-94, he had opted positive approach of check off facility on which the employees of Duncan's Industries Ltd. became interested in the ''P' Segment Scheme. There was great pressure from the bank to make the ''P' Segment Scheme successful;
2. The borrowers gave orders/ purchase of articles from the shops. They had problem to select any product. The petitioner's role was confined only to ensure that articles were of standard brand and were supplied by reputed suppliers.
3. The allegation that the goods were supplied only through M/s Prakash Radio and Electronics Ltd.; M/s Prakash TV Agencies; M/s Suman Electronics and Mamta Furniture is incorrect in as much as goods were supplied by many other dealers namely M/s Kailash Motor Co., GT Road, Kanpur; Bajaj Scooter; M/s Sine Electronic, Gumti No.5, Kanpur (colour TV and Bajaj Scooter); M/s Quality Motors, Govind Nagar, Kanpur and M/s Chabra Agencies, Gumti No.5 Kanpur (colour TV, freeze); M/s Computer Software Consultant Kanpur (Modi Olivetti Computer) and M/s Mid Land Agencies, Kanpur.
4. All the firms were genuinely dealing with articles/ items, which were ordered to be supplied. The addresses and telephone numbers of these firms were mentioned in the advertisement and could be matched with the bills and quotations.
5. Mr. Vinod Lal Chandani, Advocate was blacklisted lawyer. The bank had removed him from the panel of lawyers in November, 1996, and debarred him from handling the bank's legal matters. His opinion given on 13.5.1998 could not be relied upon in the departmental enquiry. Even otherwise he had only reported that M/s Suman Electronics is not registered with the sales tax office. M/s Prakash Agencies was registered and had recorded address 432/H2 Kidwai Nagar, Kanpur; the registration number was incorrect. On this letter the enquiry officer could not have recorded findings that all the firms from which goods were supplied, were not genuine firms.
6. The address taken from the loan application of Mr. A.K. Mathur indicating his residential address as 109 LIG, Hemant Vihar, Barra-2, Kanpur, was not the address of M/s Suman Electronics or any other firm. There was no material to record findings that these firms or some of the firms had given address, which was Mr. Mathur's residential address.
7. The Big Buy Finance Scheme was not extended by the petitioner to 107 IOC employees. The allegation of charge no.1 is absolutely incorrect. Not a single employee of IOC, Kanpur was financed by the petitioner. All the employees financed by the bank belonged to Duncan's Industries Ltd."
22. All the firms, which had supplied the goods had their verifiable address as follows:-
"1. M/s Prakash Radio & Electric Co., 133/2, ''M' Block Kidwai Nagar, Kanpur-23 Tel.No.271189.
2. M/s Prakash T.V. Agencies; Kidwai Nagar, Kanpur-23 Tel.No.271189
3. M/s Chhabra Agencies, 118/271, Kaushalpuri, Kanpur
4. M/s Quality Motors, 122/249, C, Govind Nagar, Kanpur
5. M/s City Motors, Shop No.2-5, D.B.S. market, Govind Nagar, Kanpur
6. M/s Cine Electronics, 41, Chaman Lal Market, Gumti No.5, Kanpur
7. M/s Kailash Motor Co., Jugal Bhawan, G.T. Road, Kanpur."
23. The serial numbers and chassis numbers of each item purchased by the borrower was mentioned on the bills/ register. The numbers of the Godrej Refrigerator, Videocon VCP; Washing Machines; Videocon CTV; Uptron TV, Samurai TV Games; Usha Mixer Grinder and Auto Scooters were all mentioned on the quotation/ bills. The findings that quotations/ bills were false is absolutely incorrect.
24. The loan amount was fully utilized by each of the buyers for purchasing consumer items through bankers cheques. The details of some of these buyers with their account numbers, loan advanced, the articles purchased given in the defence brief is quoted as below:-
"Shri K. Parthsarthi (A/c No.86) B.C. No.628711 dated 5.11.95 Rs.50,400.00; M/s Prakash Agencies Kanpur; CTV, Washing Machine, VCP etc. Shri Chandramajeet Prasad A/c No.13; Banker's Cheque No.628090 dt.2.8.95 Rs.23,819.00; M/s Kailash Motors (Kanpur); Bajaj Chetak Scooter.
Sri Raj Narain Dixit (A/c 7) B.Ch.No.628077 dt.27.7.97 Rs.39,330/-; M/s Prakash Radio & Electric co., Kanpur CTV Fridge & VCP Sri S.L. Mishra (A/c No.56 B.Ch. No.628652 dt.13.11.95 Rs.39630/-; M/s Prakash Agencies; CTV, Washing Machine etc. Sri Satya Narain (A/c No.46) 628495 dt.19.10.95 Rs.44,350/-; M/s Prakash Agencies Kanpur; CTV, Fridge VCP etc. Sri Bhagirathi (A/c No.37) Banker's Cheque No.628427 dt.5.10.95 Rs.39,630.00; M/s Prakash Agencies; CTV etc. Shri Rakesh Kumar Banker's Cheque No.628753 Dt.16.12.95 Rs.21,450/- M/s Prakash Agencies, Kanpur CTV Only) Shri R.C. Sharma (A/c 31) Banker's Cheque No.628411 dt. 29.9.95 Rs.40,380.00; M/s Prakash Agencies, Kanpur Consumers Durables.
Shri D.K. Singh (A/c No.30) Bankers' Cheque No.628364 Dt.16.9.95 Rs.50,650.00 Prakash Agencies Kanpur, CTV, VCP, Washing Machine etc. S/Shri A.K. Mathur (A/c No.71) B.Ch.No.628739, 740, 741 all dated 12.12.95 Rs.9,600/-, M/s Cine Electronics, Kanpur CTV, Rs.11,150.00 Kwality Motors Kanpur Rs.24,120.00 M/s Society Motors, Kanpur; Bajaj Scooter."
25. The loan amounts on the security documents is not shown as Rs.30,000/- but different amounts were mentioned as per the borrowers needs. The ledger sheets were verified. Shri C. Prasad had applied for Rs.18,000/-; Shri A. Alam Rs.38,000/-; Shri Dev Dutt Rs.20,000/-; Shri R.C. Pathak Rs.38,000/-; Shri S.N. Misra Rs.20,000/- etc. The bank had earned over a period of 4 years Rs.20 lacs as commission and interest on the borrowings in the schemes sanctioned by the petitioner at the material time.
26. Not a single account was declared irregular and that the bank did not suffer any loss in respect of any account.
27. Periodical certificates in respect of possession to goods was obtained as and when it fell due and was evidenced by Ex.PEx6 and DEx7, which were vouchers of insurance premium recovered from number of borrowers.
28. The allegation that Shri A.K. Mathur worked as middleman had no basis at all. The petitioner performed duties of Passing Officer; Accountant as well as Branch Manager and carried out the work of checking these items during weekends.
29. The identity of all the borrowers were checked as employees of Duncan's Industries Ltd., Kanpur through their identity cards, designation, works group, department and residential address as well as the latest photograph. Opening of saving bank or current account was not mandatory as availability of permanent checking off facility from the factory of M/s Duncan's Industries Ltd., Panki. The amount was deducted from their salary. All of them deposited margin money through group vouchers duly signed by them in token of confirmation of cash deposited by them.
30. The pre-owned Maruti Car 800 UMY 5787 Model 1987 was purchased by the petitioner for Rs.1.25 lacs and not for Rs.50,000/-. The loan application was forwarded in two sets. The original borrowers' report was not produced, to prove the allegation that the zerox copy was tampered with. The loan amount was not misutilised. The entire loan amount was paid to Smt. Preetam Kaur, the seller of the car through cash and banker's cheque both for Rs.50,000/- each. She was the only competent person to state factual position. She was neither summoned nor her specimen signatures were taken before recording the finding that banker's cheque, vouchers do not bear her signatures. There was no complaint by her nor she had denied that she did not receive full price of the car owned by her and which she had sold to the petitioner. Only presumptions have been drawn that she was not paid full price. There was no question of any mis-representation or mis-appropriation. The petitioner had paid back the entire amount of loan for purchase of car for which he had created lien on his provident fund account to the extent of Rs.1.4 lacs.
31. Learned counsel for the petitioner submits that the enquiry was vitiated by not following mandatory rules and thus violating principles of natural justice. The enquiry was hushed up after the bank's witness did not support the allegations. The petitioner was not given the documents, which he had asked for and that on the documents produced by the bank none of the charges could be established. The enquiry officer in his report did not find allegation no.1 (ii); allegation no.2 (ii); allegation no.4 and allegation no.5 (i) to be proved. He only found allegation no.1 (i) to be fully proved; 1 (iii) partly proved; allegation no.2 (i) fully proved; allegation no.3 partly proved and allegation no.5 (2) fully proved. The findings on proof and part proof of the allegations are vitiated both on the fact that there was no evidence at all to prove the charges and that enquiry grossly suffered from violation of principles of natural justice.
32. Learned counsel for the petitioner further submits that the disciplinary authority did not consider the petitioner's reply at all. The findings of the enquiry report without any evidence to be gospel truth and awarded extreme punishment of dismissal of service from the date of suspension. He also punished the petitioner by not giving any amount other than subsistence allowance during the period of suspension.
33. The petitioner had raised all the aforesaid points in his appeal. The Appellate Authority did not apply his mind to the grounds in appeal and dismissed the appeal on findings, which are just his surmises and conjectures. The conclusion drawn by the Appellate Authority regarding percentage of cases evidenced under Big-Buy scheme through the firms M/s Prakash TV Agencies and M/s Prakash Radio and Electronics and that 86% of the units were financed by fake bills/ cash memos have no foundation at all. The findings that fake firms were patronised is based on inadmissible evidence. He did not care to look into records at all. His further finding that post disbursement by the charged officer was waived is also against the record. Finally appellate authority's findings that there is hardly any resemblance between signature of Smt. Kaur on the sale receipt with those appearing on reverse of two demand loan vouchers and that application is visibly by naked eyes is entirely perverse. Neither Smt. Preetam Kaur was called as witness nor her signatures were taken and examined by any expert. The Appellate Authority could not have acted as expert on handwriting.
34. Learned counsel for the petitioner further submits that the findings that the availability of articles financed by the bank were never confirmed during post disbursement by the charged officer on the plea that the inspection has been waived by the bank leads one to believe that the appellant was aware of fake financing/misuse of the loan amount wantonly in disguise of circulars issued, is entirely perverse finding. Each of the financed articles was not only purchased but also used and that entire loan amount was deducted from the salaries of borrowers and paid to the bank, on which the bank earned huge profits. The banks witness Shri A.K. Jaiswal confirmed these facts. Further the findings that the petitioner misappropriated the loan amount of Rs.50,000/- for purchase of pre-owned car, is not based on any evidence that the petitioner did not purchase or use the car. The findings that the car was purchased for only Rs.50,000/-, and the loan was misappropriated is not based on any evidence at all.
35. Learned counsel for the petitioner lastly submits that the punishment is grossly disproportionate to the charges, which were not proved and is unconscionable.
36. Shri Vipin Sinha, learned counsel appearing for the respondent bank submits that the petitioner was charged with entertaining Big-Buy financing under E-Banking Segment recklessly. The firms to which the loans were advanced, which supplied the goods, were non- existing firms. The supplier's whereabouts were not verified. Shri A.K. Mathur was used as middleman, who misappropriated substantial amount in connivance with the petitioner. The petitioner was also charged with disbursing the Big-Buy loans under his discretionary powers by bogus possession certificate and wrongfully confirming to the controllers to the proper end-use of funds. The modus operandi in the Big-Buy Scheme loans indicated that the petitioner had acted irresponsibly in exercising his discretionary powers. He was also charged with mis-representing relevant facts in concealing the disbursement of the loan against the purchase of another car with different registration number by having tampered the valuation report. The petitioner was given all the documents and was allowed to defend himself by producing defence documents and witnesses. The charges were fully proved. The principle of natural justice were served in the departmental enquiry.
37. Shri Sinha submits that various irregularities in sanctioning and disbursement of loan under Big-Buy Scheme to the employees of Indian Explosives Ltd. were reported between July 1995 to February 1996. The irregularities with regard to sanction of disbursement of vehicle loan were also reported and observed. The departmental enquiry was conducted on the charge sheet dated 13th July, 1998, served on the petitioner on 6th August, 1998 in terms of Rule 68 of SBI Officers Service Rules. After close examination by the disciplinary authority of all the relevant records chargesheet, proceedings of the enquiry, the brief of the Presenting Officer and the defence representatives, were considered and upon independent examination of records, the disciplinary authority found the petitioner guilty of serious lapses on his part and ultimately decided to impose penalty of dismissal from the bank service. The period of suspension was treated to be as such and no salary, allowance and increments other than subsistence allowance was to be paid to him.
38. Shri Sinha submits that the witnesses were called in the enquiry on 8th October, 1999 and were cross-examined by the defence and the enquiring authority. The petitioner had earlier perused 36 documents in original on 22nd April, 1999 and had submitted a certificate of non-availability of the defence document by his letter dated 14th September, 1999. On 8th October, 1999, when the enquiring authority asked the defence whether the petitioner wants to examine any witness, the defence stated that they had examined the witnesses on which the enquiry was concluded. The petitioner was then required to submit a defence brief and thus ample opportunity was given to make submission and to defence himself.
39. Shri Sinha submits that aggrieved against the order of disciplinary authority dated 5th August, 2000 the petitioner preferred an appeal on 11th September, 2000 before the Chief General Manager, State Bank of India. The appeal was rejected on 19th March, 2001 with an elaborate and speaking order concluding that lapses observed were proved on the part of charged officer. It was revealed that he had abused his official position and willfully/ deliberately violated bank's system and procedure. He had exposed the bank to financial risk and besides compromising bank's position. He also mis-represented the facts to be violated of the goods and obtained cash payment of Rs.50,000/- from paying cashier as per documentary evidence indicating malafides on his part in misappropriating the loan amount.
40. Shri Sinha submits that the Court cannot sit in appeal over the findings of the competent authority in departmental enquiry. The principles of natural justice have not been violated and that punishment is not disproportionate to the charges. 41. We have carefully considered the documents annexed to the petition, the procedure followed in the departmental enquiry, and the findings recorded by the Disciplinary Authority and the Appellate Authority. We have also considered the submissions made by learned counsels appearing for the parties. Ordinarily this Court does not under Article 226 of the Constitution of India, interfere with the findings recorded, in departmental proceedings against the delinquent employees and does not enter into merits of the findings. The judicial review made by the Court is limited to the observance of the Discipline and Appeal Rules, to find out whether the principles of natural justice have been observed. The Court, however, may interfere where it finds that the findings recorded by the enquiry officer are wide off the mark, from the charges levelled against the delinquent employee. The Court may also interfere, if the findings are perverse. A perverse finding is one, which is based on no evidence or one that no reasonable person could have arrived at, on such evidence. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse. 42. In Arulvelu & Anr. Vs. State & Anr., (2009) 10 SCC 206 the Supreme Court held in paragraphs 24 to 30 as follows:-
"24. The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others (2001) 1 SCC 501 this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others AIR 1966 Cal. 31, the Court observed that 25 `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, 1 L.R. 1r. 371, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus:
"8.....We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court 27 would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under:
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
43. In our opinion in the present case the findings on the charges, which are alleged proved against the petitioner are entirely perverse, in as much as that the disciplinary authority while recording findings has made a conscious violation and has deviated from the charges levelled against the petitioner and on which the departmental enquiry was held. The entire evidence led by the prosecution does not support the conclusions drawn by the Disciplinary Authority and the Appellate Authority.
44. Let us examine the allegations, which was sought to be proved and evidence on which enquiry officer, disciplinary authority and the appellate authority sought to prove them. 45. The enquiry officer found allegation No.1 (i) to be fully proved and (iii) to be partly proved. Allegation no.1 (i) and (iii) provided with the chargesheet as Annexure -1 reads as follows:- DETAILS ON WHICH CHARGE NO.1 IS BASED
You in collusion with one Sri A.K. Mathur, Chemist IEL Kanpur gave orders towards supply of the goods/ consumer durables financed, exclusively to M/s Prakash TV Agencies, Prakash Radio & Elec., Suman Electronics, all at Kidwai Nagar, Kanpur and Mamta Furnitures, Lenin Park, Kanpur. These firms have neither been dealing in the consumer articles/ items financed nor have been found located at all on the addresses furnished in their bills/ receipts etc.
(ii) Quite differently from the addresses recorded on the aforesaid supplier's bills, these firms have been shown to be situated at 109, LIG, Hemant Vihar, Barra-II, Kanpur being residence of the aforesaid Sri A.K. Mathur, which is evident as from the Punjab National Bank, Nirala Nagar, Kanpur Branch records, where these firms had maintained their accounts at the material time.
(iii) It has been observed that fake quotations/ bills were got printed in the name of these firms, which were being operated by Sri A.K. Mathur through his brother and sister-in-law as proprietors of these fake firms."
46. From the documents and the statement of the only witness for prosecution namely Shri A.K. Jaiswal, we find that whereas the allegation in charge no.1 was that the Big-Buy Financing under 'P' Banking Segment was done in reckless manner to 107 IOC employees in which approximately Rs.29/30 lacs was released/ disbursed between August, 1995 to February, 1996 and cheques were issued in favour of M/s Prakash TV Agencies; Prakash Radio and Electronics Ltd.; Suman Electronics and Mamta Furniture in collusion with one Shri A.K. Malviya, IEL, Kanpur and that these firms have neither been dealing with consumer articles/ items financed nor have been found located at all on the addresses furnished in the bills, receipts etc., the Enquiry Officer did not take into account the defence that loans under the Big-Buy Scheme in 'P' Segment were not advanced to any of the IOC employee, but to employees of Duncan's Industries Ltd., under an arrangement in which the amount was to be deducted from their salary. The consumer articles were purchased from other dealers also such as M/s Chabbra Agencies; M/s Quality Motors; M/s City Motors; M/s Cine Electronics and M/s Kailash Motors Ltd. The address of these firms as well as M/s Prakash Radio and Electronic Company; M/s Prakash TV Agencies, was clearly given on their bills/ vouchers.
47. There was no complaint from any borrower regarding goods, their cost and about the supplier and there was no default committed in repayment of the loans. The only evidence relied upon by the enquiry officer is the letter of Shri Vinod Lal Chandani, Advocate, who was a blacklisted lawyer and was debarred from giving any opinion to the bank. Even he did not state that the two firms were non-existing firm. He was only required to verify the registration numbers of the two firms M/s Prakash Agencies and M/s Suman Electronics from the sales tax department. His report, which could not be relied upon as he was blacklisted and was not produced to prove his report only verified the fact that Suman Electronics is not registered with sales tax office, of registration number of Prakash Agencies in the sales tax office is different. From this letter the finding of the enquiry officer that the allegation of collusion with one Shri A.K. Mathur to give orders towards supply of goods/ consumer durables exclusively to M/s Prakash TV Agencies, Prakash Radio and Electronics, Suman Electronics of Kidwai Nagar, and these firms were neither dealing in consumer articles nor were found located on the address furnished in their bills/ rates, was not established. All that was established from the report of Shri Vinod Lal Chandani, Advocate a debarred lawyer, who did not appear to prove his report, that the existence of Suman Electronics and M/s Prakash Agencies created doubt. In our opinion there was absolutely no evidence to prove allegation no.1 of charge no.1 and, thus findings on proof of allegation no.(1) (i) is totally perverse.
48. On allegation no.(iii) of charge no.1 that fake quotations/ bills were got printed in the name of these firms, which was being operated by Shri A.K. Mathur through is brother and sister-in-law as perpetrators of these fake firms, the enquiry officer found that charge to be partly proved, the enquiry officer in his report discussed the evidence on this allegation as follows:-
"Further, the prosecution has not produced any material or oral evidence to prove that Sri A.K. Mathur was working in collusion with the charged officer. If there is any collusion that must be beneficial the parties and prosecution has not proved how the parties were benefited after collusion. The prosecution has also failed to prove that Sri A.K. Mathur and the alleged suppliers were his brother and sister in law. The prosecution has not produced any material evidence to prove the identity of alleged fake suppliers. Merely producing Banker's Cheque favouring the suppliers and stating that these were paid in clearing to Punjab National Bank, Nirala Nagar does not lead to prove the allegation that the firms were fake.
The charged officer in his defence has tried to prove that IOC employees were not availing loan from IOC Branch as they were getting loan from their department at lower interest rates and he was persuaded by the Controlling Office to increase the business of P segment advances and so he financed the employees of M/s DIL Panki who were ready to give check off facility to ensure repayment of the loan as per extant instructions within his discretionary powers.
From the above, and further discussions made in subsequent para it is clear that the allegation of fake receipts, fake suppliers and their non existence is proved.
The allegations made are therefore, partly proved."
49. We are unable to understand as to how the enquiry office after observing that prosecution has not produced any material or oral evidence to prove that Shri A.K. Mathur was working in collusion of charged officer and has further not produced any material nor evidence to prove that identity of the alleged fake suppliers, and that merely producing banker's cheque favouring suppliers, paid in clearing to Punjab National Bank does not lead to prove that allegation that the firms were fake, found the charge partly proved. On his observations that in his defence charged officer has tried to prove that IOC employees were not availing loan of IOC Branch as they were getting loan from the department at lower interest rates and he was persuaded or controlling officer to increase business of 'P' Segment advance and so he financed the employees of M/s DIL Panki, who was ready to give check off facility to ensure repayment of loan as per instructions within his discretionary powers, the allegation (1) (iii) could not be said to be partly proved. We find that the conclusion of the enquiry officer on these allegations to be wholly off the mark and perverse. He has not given any reason whatsoever, except narrating the defence of the charged officer, which give reasons as to why employees of IOC Branch were not interested in Big-Buy Scheme, and that employees of Duncan Industries Ltd., Panki, who are ready to take loan on check off facility. In our opinion, the findings that the allegations are partly proved on the discussion made in subsequent para, relating to charge no.2, is wholly perverse as he himself did not find any evidence to prove it.
50. In Annexure No.I in respect of allegations on charge no.2, which has been found to be proved is as follows:-
"DETAILS ON WHICH CHARGE NO.2 IS BASED You in collaboration with Sri A.K. Mathur, the middleman helped him in misappropriation of substantial amount through the Big-Buy loans by accepting bogus/ fake bills of the non-existent firms/ suppliers and paying these bills through Bankers Cheques issued in favour of these firms.
(ii) Although the loan amount on the security documents has been shown as Rs.30,000/- in most of the Big-Buy loans accounts, the disbursement had been made in cash for reduced amount ranging between Rs.16,000/- to Rs.19,000/- direct to the borrowers through the said middleman Sri Mathur, who had already procured earlier payment of the Bankers Cheques issued against the supply of the consumer durables by these non-existent firms."
51. On this allegation 2 (i), which the Enquiry Officer has found to be proved, he has relied upon the contention of the prosecution as to how it is possible that a city like Kanpur all the employees of Duncan's India Ltd. purchased TV, freeze, washing machine from only one shop i.e. Prakash Agencies only and confirmed dealing with products of Uptron, Videocon, Godrej can function without telephone on their establishments, as the telephone numbers have not been mentioned. Further in the bills of Prakash Electronics and Suman Electronics similar spelling mistake indicate that bills have not been issued by the reputed firms but by fake firms, who has not mentioned their telephone number in their bill and have given fake sales tax registration numbers. The enquiry officer thereafter observed as follows and arrived at conclusion that the charge is fully proved:-
"The charged officer has in his defence referred to the advertisement of M/s Prakash Radio and Electronics Company M/s Prakash TV Agencies to prove the existence of the firms. No doubt these firms are reputed and well established. But what about the firm like Prakash Agencies, Suman Electronics and Mamta Furniture. The advertisements produced by the Charged Officer relate to the reputed firm established at Kidwai Nagar and the charged officer has tried to mislead the Inquiring Authority to prove that M/s Prakash Radio and Electric Co. and Prakash Agencies are the same.
No doubt the borrowers who have purchased the items from M/s Prakash Radio and Electronics, M/s Kailash Motors, M/s Cine Electronics are reputed firm and there is no doubt about the receipts issued by these firms and financing to such borrowers who have purchased goods from these agencies.
The allegation is therefore fully proved."
52. The findings on this allegation is based upon allegation 1 of Charge no.1, regarding existence of M/s Prakash Radio and Electronics Company and M/s Prakash TV Agencies. We failed to understand as to how the petitioner tried to misled the Enquiry Officer to prove that M/s Praksh Radio and Electronics Company and M/s Prakash Agencies were the same. There was no such defence taken in the reply to the charges, nor any evidence led by the petitioner to prove that both these companies were the same. The enquiry officer, thereafter, correctly observed that the borrowers have also purchased items from M/s Prakash Radio Electronics; M/s Kailash Motors; M/s Cine Electronics, which are reputed firms and there is no doubt about the receipts issued by these firms financing to such borrowers, who have purchased goods from these agencies. On this evidence the allegation no. (i) of Charge No.2, that petitioner had in collusion with Shri A.K. Mathur misappropriated substantial amount through Big-Buy loans by accepting deductions/ fake bills of the non-existing firms/ suppliers and paid these bills through banker's cheques in favour of these firms, could not have been established. There was no evidence whatsoever, to arrive at such a conclusion, and in view of the inconsistent finding that M/s Prakash Radio and Electronics; M/s Kailash Motors and M/s Cine Electronics are reputed firms, the finding that bogus/ fake bills were accepted, from the non-existent firms/ suppliers, could not have been arrived at. The finding is not based on any evidence and is entirely perverse.
53. The Charge no.3 was found by the Enquiry Officer to be partly proved. Charge no.3 and allegation are quoted as below:-
"DETAILS ON WHICH CHARGE NO.3 IS BASED You failed to ensure end-use of the funds disbursed by you under the Big-Buy financing at IOC Kanpur Branch. You also did not take any care to ensure the supply of the articles or creation of assets in Big-Buy loans. You also did not conduct post-disbursement inspection cover as a one time measure to ensure proper utilisation of the Bank's funds disbursed in these Big-Buy loan a/cs."
54. The enquiry officer noticed the defence that although inspections were not required under the scheme, he randomly inspected some of the borrowings, as he found evident from the Branch Movement Cum Inspection Register DEx-12, that insurance premium was recovered from a number of borrowers, and that no insurance policy was produced to verify the details of the assets, and that merely saying that insurance officials must have verified policy is not acceptable in the absence of relative insurance policy. Even after noticing and mentioning of this defence, the Enquiry Officer observed as follows, to prove the charges:-
"The voucher of insurance premium (DEx-7) recovered from a few of borrowers does not prove that assets purchased by all the borrowers were insured.
DEx-1 submitted by the charged officer reads to ensure a proper end use of funds, only the goods sold by reputed dealers should be financed." However, when the genuineness of the firm like M/s Suman Electronics and Prakash Agencies is questionable, whether the goods were actually supplied is doubtful other than by the reputed suppliers like M/s Prakash T.V. Agencies and M/s Prakash Radio and Electric Co. The charged officer has in his defence produced DEx-34, which is a letter from inspection department, and DEx-36 which relates to quality of advances and classification of assets in general. Here we are concerned only with the assets purchased from the fake firms. The number etc. of the goods mentioned in the receipt issued by the fake firms can not be relied.
The allegation is therefore partly proved."
55. We find that after the Enquiry Officer found that voucher of insurance premium DEx-3 was recovered from few of the borrowers, he went back on the finding on charge no.1 alleging that since the genuineness of the firm like M/s Suman Electronics and Prakash Agencies was questionable, and it was doubtful, whether goods were actually supplied, other than by the reputed suppliers. After noticing that in DEx-34 a letter of inspection department of DS-36, relates to quality of advance and classification, observation was made that these documents are general in nature and since enquiry is concerned with the assets purchased from bake firms, the receipts issued by the fake firms cannot be relied.
56. We again failed to understand as to how the allegation of failing to ensure end-use of the fund, could be established from such a finding. The enquiry officer again and again goes back to the finding on charge no.1 in respect of the genuineness of the two firms, which was based upon the letter of Shri Vinod Lal Chandani, the debarred lawyer, who was not produced to prove his certificate, to record finding that since the existence of these two firms are doubtful, the end-use was not ensured.
57. Although the enquiry officer is merciful to the petitioner in saying that charge is partly proved, we find that there was absolutely no evidence to prove the allegations. On the contrary the insurance policies and the documents DEx-34 and 36 proved that inspections were carried out in respect of some of the articles, whereas no such inspection was actually required under the scheme.
58. The charge no.4 was not proved.
59. Coming to the finding on allegation no. (ii) of charge no.5 to be fully proved, the charge no.5 and allegations (i) and (ii) are reproduced as follows:-
"DETAILS ON WHICH CHARGE NO.5 IS BASED You purchased Car No.UMY-5787 costing Rs.50,000/- only as against the demand loan of Rs.one lac sanctioned by the controllers in respect of car UMY-7100 costing Rs.1.25 lacs. In the process you not only misused the valuers report dated 11.11.95 by making alterations therein, but also misutilised the Bank's loan for an inflated amount by having mis-represented the facts to your controllers.
(ii) You also managed to receive the difference in amount of Rs.50,000/- in cash at IOC (Kanpur) Branch on 17.11.95 though two demand loan vouchers. The seller's (Smt. Pritam Kaur's) signature on the sale receipt submitted by you is also forged. Even the valuation report dated 11.11.95 accompanying your car loan application had been tampered as regard the car no. and its valuation."
60. In order to appreciate the findings on this charge it may be useful to appreciate that the charge relates to mis-representation to the controllers for availing car loan of Rs.1 lac in November, 1995, by deliberately concealing, and reporting of disbursement of the loan against the purchase of another car with different registration number by having tampered with the valuation report. The details on which charge is based is that whereas petitioner purchased car no.UMY 5787 costing Rs.50,000/- as against the demand loan of Rs.1 lac sanctioned by the controllers in respect of car no.UMY-7100 costing Rs.1.25 lacs, the allegation was of misusing of the valuer's report dated 11.11.95, by making alteration therein and thus misutilising the bank loan for inflated amount. The allegation no.(i) of charge no.5 of mis-representation and alterations on valuation report was not proved. The allegation no.(ii) of Charge No.5, that the petitioner manged to receive the difference of the amount of Rs.50,000/- in cash at IOC Kanpur Branch on 17.11.1995 through two demand loan vouchers signed by seller Smt. Preetam Kaur by forging her signatures, and also tampering with valuer's report dated 11.11.1995 was found to be proved. The findings of the enquiry officer are as follows:-
"The defence has contended that the token No.93/2 was issued to Smt. P. Kaur and she received the payment after surrendering the token. The contention of the charged officer in his defence is not tenable as the token number has not been mentioned by the paying cashier in the payment register and name of the charged officer has been mentioned as the person to whom the amount of Rs.50,000/- was paid. further, the contention of the charged officer that the paying cashier wrote his name in the register inadvertently is not based on the facts. The documentary evidence prove that the cash was received by the charged officer.
The charged officer has in his defence produced a valuation report dated 24.10.96 in which the valuer has accessed the value of the Maruti Car Model 1987 at Rs.1.20 lacs. If for a movement we presume that the car purchased in 1995 must have been purchased for Rs.1.25 lacs, and amount of Rs.1 lac was paid from Car loan, how the balance of Rs.25,000/- was paid to the seller. The defence has not submitted any documentary evidence of having paid the sum of Rs.25,000/-. If the charged officer has paid full amount of Rs.1.25 lacs to Smt. Pritam Kaur, he should have produced documentary evidence and in the absence of document he could have produced Smt. Pritam Kaur as witnessed to substantiate that he purchased the car for Rs.1,25,000/- and paid full amount.
The way in which the payment was made to the seller i.e. partly in cash and partly by Banker's cheque instead of issuing a Banker's cheque in favour of the seller for the full amount of Rs.1.25 lac indicates his malafides intentions and proves that the car was purchased only for Rs.50,000/- and the balance amount of Rs.50,000/- was received by the charged officer in cash and thus misutilised the loan of Rs.1 lac sanctioned for purchase of the allegation is, therefore, fully proved."
61. The enquiry officer after finding that mis-representation by giving different car number and the tampering of valuer's report was not proved, proceeded to consider as to whether Smt. Preetam Kaur had actually received the payment. The enquiry officer found that the token number has not been mentioned by the paying cashier in the token register and the name of the charged officer has been mentioned as the person to whom Rs.50,000/- was paid. He, thereafter, observed, considering the defence of the petitioner that the bank had assessed the value of Maruti Car of the year 1997 at Rs.1.20 lacs, then the car must have been purchased for rs.1.25 lacs. If the amount of Rs.1 lac was paid over the car loan the balance of Rs.25,000/- was paid to the seller. The enquiry officer, thereafter, proceeded to observe that no documentary evidence of having paid Rs.25,000/- has been produced by the defence. If he had paid full amount of Rs.1.25 lacs to Smt. Preetam Kaur, he should have produced documentary evidence and in the absence of the document he could have produced Smt. Preetam Kaur as witness to substantiate that he purchased the car for Rs.1.25 lacs and paid full amount. The enquiry officer thereafter proceeded to observe that the way in which the payment was made to the seller as in cash and partly by banker's cheque instead of issuing a banker's cheque for the full amount indicates his malafides intentions and proves that the car was purchased only for Rs.50,000/- and the balance amount of Rs.50,000/- was received in cash and thus misutilised the loan of Rs.1 lac sanctioned for purchase of the care costing Rs.1.25 lacs.
62. In making the observations that the value of the car was Rs.1.25 lacs, and thus full amount ought to have been paid by banker's cheque, and since instead Rs.50,000/- was paid by vouchers, which are signed by Smt. Preetam Kaur, it should be presumed that the petitioner had paid only Rs.50,000/- to her, the enquiry officer thus placed the burden of proving the charge on the petitioner and observed that since he has not produced Smt. Preetam Kaur, it is to be presumed that he has misutilised loan of Rs.1 lac and had paid only Rs.50,000/- to her.
63. We are unable to accept the conclusions drawn by the enquiry officer, and find that the Disciplinary Authority went a step ahead in finding that the petitioner managed to receive difference of Rs.50,000/- in cash through demand loan vouchers and forged the signatures of Smt. Preetam Kaur. No such finding of forgery was arrived at by the enquiry officer to be accepted by the Disciplinary Authority.
64. It appears that when the Disciplinary Authority found that he could not have sustained the findings on Charge no.5, he reiterated the charge of forging signature of Smt. Preetam Kaur. The burden of proving these charges was squarely on the bank, which neither produced Smt. Preetam Kaur nor examined her signatures through any handwriting expert. The Appellate Authority went further ahead in examining the signatures himself and found dissimilarity between them.
65. In this regard it will be useful to quote findings of the Enquiry Officer, the conclusion of the Disciplinary Authority and the observations of the Appellate Authority, as follows:-
"A. Finding of the enquiry officer Based on proceedings documents listed during the course of enquiry, Presenting Officer's brief and charged officer's defence brief, I find:-
Allegation No.1 (i) Fully proved
(ii) Not proved
(iii) Partly proved Allegation No.2 (i) Fully proved
(ii) Not proved Allegation No.3 Partly proved Allegation No.4 Not proved Allegation No.5 (i) not proved
(ii) fully proved CONCLUSION From the forgoing and the submission made by the charged officer it is evidence that although the charged officer financed a large number of employees under Big Buy Scheme and repayment is assured the way advance were given e.g. fake bills/ receipts/ unreputed firms, indicate that assets were actually not purchased. However, the allegation that the bills/ receipts/ purchases were done through the middleman or the charged officer himself got benefited is not proved in the absence of documentary or oral evidences.
Further, the way in which payment were made to Smt. Pritam Kaur in cash instead of Banker's cheque give indication of malafides on the part of the charged officer.
Thus the charged officer while posted as Branch Manager at IOC (Kanpur) Branch during the period from July 1995 to February 1996 failed to discharge his duties with utmost devotion, diligence, integrity and honesty and acted in a manner unbecoming of a Bank official in deliberate violation of Rule 50 (c) of State Bank of India Officer's Service Rules.
(R.P. Shah) Inquiring Authority."
B. Findings of the disciplinary authority (4) You managed to receive the difference of Rs.50,000/- in cash on 17.11.95 through two demand loan vouchers at IOC (Kanpur) Branch. The seller's (Smt. Pritam Kaur's signature on the sale receipt submitted by you is also forged. Even the valuation report dated 11.11.95 accompanying your car loan application had been tampered as regards to the card no. UMY-5787 and its valuation."
C. Findings of the appellate authority
(v) Although the appellant continues to claim that out of Rs.1 lac demand loan sanctioned to him for purchase of car, Rs.50000/- was paid to Smt. Pritam Kaur (seller) in cash as per the discharge on the reverse of two demand loan vouchers and Rs.50000/- by banker's cheque, yet he has not explained to Bank's satisfaction the propriety/ need for paying part amount in cash when the sale receipt dated 17.11.195 purportedly executed by the seller was for Rs.125000/-. Similarly his statement that the advance amount of Rs.25000/- was handed over to Smt. Pritam Kaur (Seller) without insisting for a cash receipt does not seem to be logical.
Although the I.A. has not admitted sale receipt as prosecution document for its original has not been perused by the CSO and photostat of the same has not been listed, yet the fact remains that there is hardly any resemblance between the signatures of Smt. Kaur on "Sale Receipt" with those appearing on reverse of two demand loan vouchers and the variation is visible with naked eyes. The prosecution, on the basis of cashier's noting in the payment register has been successful to prove that the amount of two demand loan vouchers entered as one entry of Rs.50000/- has been paid to Shri B.M. Nigam, charged officer and not to Smt. Pritam Kaur, which also indicates malafide on the part of the appellant in misappropriating the loan amount.
The lapses observed and held proved on the part of charged officer revealed acts of abuse of official position and willful/deliberate violation of Bank's systems and procedures. By these acts, the appellant exposed the Bank to financial risk besides compromising Bank's position. He also misrepresented fact about the valuation of the car and obtained cash payment of Rs.50000/- from the paying cashier as per documentary evidence indicates malafide on his part in misappropriating the loan amount."
66. On the aforesaid discussion, we are of the view that for reasons best known to the bank, the petitioner was framed by the bank to be punished. This conclusion is supported by the fact that no one had made a complaint of mis-use of the Big-Buy Scheme in the 'P' Segment. Loans were given to the employees of Duncan's Industries Ltd., whereas the charges was levelled in respect of loans to the employees of IOC. Only two firms, who had supplied the consumer goods, out of seven were picked up, to be doubted as fake funds. The details of addresses and telephone numbers of these firms were prominently given on their letter, bills and vouchers. No one cared to examine these addresses instead a report of a lawyer, who was debarred by the bank from giving opinion was relied upon, without examining him as a witness and that too only in respect of the registration number of Sales Tax Department for one of the firms, which he could not verify. The lawyer was never produced to prove the report. His inadmissible report, was relied upon to establish the charge that the fake firms in connivance with one Shri A.K. Mathur, a middleman were used and fake bills were raised. The charge of connivance with Shri A.K. Mathur was never proved. The doubts expressed were sought to be established by inadmissible evidence and that too only in respect of one of the seven firms. The bank authorities conveniently disregarded insurance policies and inspection register, in arriving at finding that end-use was not ensured, whereas it was admitted by Shri A.K. Jaiswal, the witness of the bank that no one had complained and that no amount was due to be paid by any of the end-user to the bank. He also admitted that no enquiries were made with regard to end-user and that he did not take the assets had only made few borrowers, who also did not make any complaint. Shri Jaiswal admitted that the advances to the Duncan's employees was good business to the bank.
67. The entire records bear testimony to the fact that no one applied its mind to the charges nor considered the evidence adduced to prove the charges. The Enquiry Officer, the Disciplinary Authority and the Appellate Authority acted mechanically, as if they had already decided to punish the petitioner. The charges were not proved at all. The charge of misrepresentation for availing car loan, purchase of a car other than for which the car loan was applied and tampering with valuation report were not proved; and was given up during enquiry and a new charge without following any procedure and giving opportunity to the petitioner was alleged. The banking authorities, fixed him on another charge that vouchers of Rs.50,000/- were not signed by the seller and that her signatures on the voucher were forged. She was neither produced by the bank, nor her signatures was examined. It was nobody's case that the petitioner did not purchase the car, for which a lien was created on his account and that the entire loan amount was paid back by him.
68. We are thus of the opinion that entire exercise of the departmental enquiry was undertaken to victimise the petitioner. None of the charges were proved against him. The findings of proof of some of the allegations discussed as above, are entirely perverse as no reasonable person could have come to such conclusions on the material produced by the bank to prove the allegations.
69. We may also observe here that since no loss was caused to the bank, nor any misappropriation was proved, the bank could not have awarded the extreme and unconscionable punishment of dismissal from service, to the petitioner.
70. The writ petition is allowed. The punishment orders dated 5.8.2000 (Annex.8 to the writ petition) passed by the Disciplinary Authority, and the order dated 19.3.2001 (Annex.10) passed by the Appellate Authority are quashed. On the findings recorded by us that the charges cooked up against the petitioner were never established, we find that the petitioner was illegally deprived of the working as officer of the bank and thus we direct that the petitioner be reinstated with 50% of the back wages, and all other consequential benefits. If the petitioner has retired, 50% wages upto date of retirement will be paid with further direction that he will be paid full pension as if he retired while serving with all consequential benefits.
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