Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon. Ashwani Kumar Mishra, J.)
1. The petitioner, while was working as field officer (JMGS-I), was subjected to disciplinary proceedings and was served with a charge sheet on 30.11.2005, levying following charges:-
Charge No.1 You failed to obtain proper introduction and proof of identity in respect of opening of current account No.01000060253 in the name of M/s Fashionque International with Mahendra Singh as Proprietor.
Charge No.2 You unauthorizedly allowed clean overdraft in current account No.01000060253 of M/s Fashionque International.
Charge No.3 You purchased foreign currency D.A. bills from M/s Fashionque International without sanction of the appropriate authority. You failed to obtain proper security documents and collateral security as also did not properly assessed the foreign currency bills limit as applied to by M/s Fashionque International before purchasing foreign currency bills from them.
Charge No.4 You failed to ascertain the status of Shri Mahendra Singh, Prop. of M/s Fashionque International before purchasing foreign currency bills.
You suppressed the fact at the material time i.e. before purchasing foreign currency bills on 31.10.2008 that Shri Ratan Mani, a defaulter borrower of the branch is behind the affairs of the firm M/s Fashionque International.
Your above lapse cast aspersion on your bonafide and integrity.
Charge No.5 You released amount of retained margin against foreign bills purchase from M/s Fashionque International before these bills are paid. Hence increased the risk explosion. Your above lapse exposed the bank to a loan of Rs.88.00 lakhs.
2. The petitioner denied the charges. Thereafter, the enquiry proceeded in the matter and the Enquiry Officer submitted his report on 29.6.2006, wherein all the charges levelled against the petitioner were found to be proved. The petitioner was supplied the copy of the enquiry report and was granted an opportunity to submit his objection against it vide letter dated 12.10.2006. The petitioner submitted his objections to the report of the Enquiry Officer on 13.11.2006. It appears that the petitioner proceeded on medical leave on 17.1.2007, and thereafter attained the age of superannuation i.e. 60 years on 5.2.2007. On 20.2.2007 the General Manager-II passed an order invoking provisions of rule 19(3) of the State Bank of India Officers Service Rules, 1992 (hereinafter referred to Rules, 1992), which allowed extension of service beyond the age of superannuation to facilitate the conclusion of disciplinary proceedings. Ultimately, the order dismissing the petitioner from services was passed on 13.8.2007 and the appeal filed by the petitioner against it on 6.10.2007 has also been rejected on 22.4.2008. Thus aggrieved, the instant writ petition has been filed, challenging the order of punishment dated 13.8.2007 and 22.4.2008 with a further prayer that petitioner be allowed monthly pension including arrears, with effect from 1.3.2007.
3. We have heard Sri Ashok Khare, Senior Advocate, assisted by Sri V.D. Shukla, Advocate, for the petitioner and Sri G.K. Singh, Senior Advocate, assisted by Sri Jayant Banerjee, Advocate, for the respondent bank.
4. The petitioner's case is that in respect of the transaction of opening of current account in favour of M/s Fashionque International and purchasing bills, which has given rise to initiation of disciplinary proceedings against him, disciplinary proceedings were also initiated against Sri J.S. Kushwaha (Manager I.B.) SMGS-IV, Sri Dhirendra Kumar (Chief Manager) SMGS-IV and Sri P.P. Chachra (Chief Manager) SMGS-IV. Departmental proceedings against all the persons, though arising out of the same transaction, had been separately conducted by appointing separate Enquiry Officers, who conducted separate enquiries. While petitioner was dismissed from service, minor punishment of withholding 5 increments were imposed upon Sri J.S. Kushwaha and censure entry was awarded to Sri Dhirendra Kumar, whereas no punishment was imposed on Sri P.P. Chachra.
5. Sri Khare in respect of petitioner's case made following submissions.
(I) The enquiry proceedings as well as resultant imposition of punishment upon the petitioner, are vitiated, as no oral enquiry was conducted. No witnesses were examined, and petitioner's statement was not recorded in the enquiry proceedings. Reliance has been placed upon clause 68 (xvii) of the Rules of 1972 in this regard to contend that recording of petitioner's statement was mandatory.
(II) It is then urged that charges against petitioner and other officers arose out of the same transaction, but separate enquiries have been conducted as against requirement of having common proceedings, as is contemplated under clause (6) of Regulation 68. On account of holding of separate enquiries, different conclusions in respect of same set of charges and facts have been arrived at as a result of which different punishments have been imposed for same charges. It is contended that the petitioner is prejudiced on account of not holding of a common enquiry.
(III) It is lastly contended that the petitioner had already superannuated on 5.2.2007 and the imposition of punishment of dismissal, by extending the service period for holding of enquiry, is wholly discriminatory and arbitrary, inasmuch as persons similarly placed have either been let-off or have been imposed minor punishments, whereas the petitioner has been dismissed from service, which punishment is otherwise disproportionate and, therefore, violates Article 14 of the Constitution of India.
6. Sri G.K. Singh, Senior Advocate, assisted by Sri Jayant Banerjee, learned counsel for the respondent bank, before replying to the arguments advanced by Sri Khare, invited the attention of the court to an order passed against the petitioner on 22.9.1999, affirming the penalty of censure imposed upon the petitioner, which included the proved charge against the petitioner of not following the bank instructions in purchasing/encashing the bills of M/s Shrestham, without obtaining satisfactory opinion reports of the foreign buyers. Sri Singh submits that M/s Shrestham was owned by Sri Ratan Mani. It is stated that the concern M/s Fashionque International, the firm in question, though is claimed to be a proprietorship firm of Sri Mahendra Singh, but in fact Sri Mahendra Singh was a surrogate of Sri Ratan Mani. Sri Singh, therefore, submitted that the petitioner was actually acting with malafide intent. Attention of the court was also invited to the fact noticed in the finding of the Enquiry Officer that M/s Shrestham International was being run from 815, New Friends Colony, New Delhi and the letters addressed to M/s Fashionque International were also sent on the same address i.e. 815, New Friends Colony, New Delhi. It was then urged that the petitioner, as a field officer, was in know of the fact that M/s Fashionque International actually was a firm of M/s Shrestham, which had been declared defaulter. Elaborating the charges, Sri Singh submitted that the petitioner deliberately acted with malafide intent in opening of current account in the name of M/s Fashionque International with Sri Mahendra Singh, as proprietor, without proper introduction and proof of identity, and thereafter unauthorizedly allowed clean overdraft in the said account to the tune of Rs.28 lacs, Rs.50,000/- and Rs. 25,000/- without any authority. The petitioner has been charged of illegally purchasing foreign currency bills of M/s Fashionque International without sanction of appropriate authority and obtaining proper security documents and collateral security. The petitioner is also accused of having not properly assessed the foreign currency bills of M/s Fashionque International. The further charge of not ascertaining the status of Sri Mahendra Singh, proprietor of M/s Fashionque International, has been proved. The petitioner has been accused of suppressing the fact that Sri Ratan Mani was actually behind M/s Fashionque International.
7. Replying to the arguments of Sri Khare, it was argued by Sri G.K. Singh that the enquiry had been conducted in accordance with the principles of natural justice and the petitioner was supplied all materials relied upon in the enquiry and as the charges against the petitioner were based entirely on records of the bank, which have been duly made available to the petitioner, as such no oral enquiry was needed and the question of enquiry, being vitiated on account of non-holding of such oral enquiry, does not arise. It was stated that the petitioner being the Field Officer and having knowledge of the true status of M/s Fashionque International, as being a firm of Sri Ratan Mani, had committed grave misconduct in facilitating the opening of account without due observance of requirements, purchase of bills without authority and allowing unauthorized clean overdraft, for which punishment of dismissal was wholly appropriate. Sri Singh has attempted to defend the holding of separate enquiry on the ground that different disciplinary proceedings were required, inasmuch as Enquiry Officer is appointed considering the rank/hierarchy of the charged employee and for a senior officer charged of misconduct, the Enquiry Officer has to be a still senior officer. Since the petitioner was a field officer, whereas other charged employees were much senior, therefore, different Enquiry Officers were appointed resulting in holding of separate enquiries. It has been argued that holding of separate enquiry has not prejudiced the petitioner, as the conclusions of the enquiry in respect of separate officials were correct, with reference to the duties assigned to them and the charges levelled. The allegation of discrimination etc. have also been denied. It is lastly contended by Sri G.K. Singh that punishment of dismissal commensurates with the charges proved and it is not disproportionate.
8. We have heard the aforesaid contentions of the learned counsel for the parties and have perused the records.
9. Dealing with the first submission advanced on behalf of the petitioner, of non holding of oral enquiry in the matter, we find that enquiry in the matter commenced with preliminary hearing held on 28.1.2006. The prosecution and defence documents were perused. The petitioner confirmed during the course of enquiry on 2.6.2006 that there is no dispute regarding genuineness of the documents and the same were admitted. The Presenting Officer placed all the prosecution documents in the presence of the parties. The defence documents were also placed. The charge-sheeted employee confirmed that no witness is to be produced. He also admitted that all documents have been produced and made available to him. The enquiry thereafter was concluded with the observation that prosecution brief would be submitted within 10 days with a copy to charge-sheeted employee and the charge-sheeted employee/petitioner will submit his defence brief within 7 days from such receiving of brief. After submission of prosecution and defence briefs, the Enquiry Officer proceeded to submit his report. The proceedings of the enquiry, referred to above, have been brought on record as Annexure-1 to the counter affidavit, which is not disputed. The Enquiry Officer has proceeded to submit his report on the basis of documents, which have been accepted during the enquiry proceedings and with which the petitioner was wholly satisfied. No oral examination of any witness has been taken on record and the petitioner also agreed that there is no requirement of producing witness from his side. In such circumstances, the grievance of the petitioner that enquiry proceedings were vitiated on account of non holding of oral enquiry cannot be accepted. Reliance has been placed on a decision of the Apex Court in case of Tara Chand Vyas vs. Chairman & Disciplinary Authority reported in (1997) 4 SCC 565. Dealing with the disciplinary proceedings arising out of the case of a bank employee, the Apex Court held as under in para 3, relevant portion whereof is reproduced:-
"3. Shri B.D. Sharma, learned counsel for the petitioner, contends that for proof of the charges none of the witnesses was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the imputation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers and had not ensured supply of goodsto the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference.------"
The contention of the petitioner of the enquiry being vitiated due to non holding of oral enquiry, is, therefore rejected.
10. The argument of Sri Khare that regarding non recording of the oral statement of the petitioner, by referring to clause (xvii) of rule 68 will have to be viewed in the factual scenario of the instant case. In the present case, the department had, for the purposes of disciplinary proceedings, only relied upon admitted documents. The conclusions of the Enquiry Officer were arrived only on the basis of documents. No oral evidence was relied upon. Non recording of statement of the petitioner in this backdrop has not caused any prejudice to the petitioner. Since the documents relied upon have been admitted, therefore, in the absence of any oral statement being relied, the petitioner cannot have a valid grievance on this count.
11. Sri Khare has relied upon the judgment in Moni Shanker vs. Union of India reported in AIR 2008 SC (Suppl.) 1657. The Apex Court in this case was dealing with a trap case. Reliance was placed on para 704 and 705 of the Railway Manual, which dealt with trap and departmental traps. Since laying of trap by the department had been specifically provided in the railway manual and procedure for it was also specified, therefore, the Apex Court was observed that compliance with such instruction cannot be entirely ignored. The judgment of the Apex court in this regard would have no applicability upon the facts of the present case.
12. In order to appreciate further submissions advanced on behalf of the petitioner, the facts available on record needs to be scrutinized. The duties assigned to a field officer have been brought on record. Amongst other, it includes:-
"(a) Survey and resurvey of small scale industrial units functioning in the areas of operation of the branches where they are posted and keeping close and continuous contact with the local authorities and associations concerned with the development of small scale industries. This work will continue to be the most important work of the Field Officer."
13. The petitioner being a field officer, therefore, was expected to keep close and continuous contact with the local authorities and associations concerned with the development of small scale industries. In the instant case, a current account was opened in the name of M/s Fashionque International with Mahendra Singh, as its proprietor. The name of Sri Mahendra Singh, as appearing in the account opening form was different from description contained in the passport and the necessary approval was also lacking. The petitioner has been charged for unauthorizely allowing clean overdraft in current account of M/s Fashionque International for a sum of Rs.28,70,850/- without any approved arrangement and without any approval of the competent authority. This second charge of allowing overdraft payment without any arrangement or approval is specific to petitioner alone and no other officer has been accused of such misconduct. The petitioner in his reply has admitted the allegation of allowing overdraft in the absence of approval or arrangement existing, but has attempted to justify it on the ground that the same was within the knowledge and with tacit consent of his senior officers. It was further contended that M/s Fashionque International had already tendered export bills for Rs.50.49 lacs for its discount and crediting it in the current account on 28th October and same was processed on 30th October, but on account of non-availability of firm rate on that day, the transaction could not materialize despite telephonic request from Foreign Department, Calcutta and the transaction ultimately was booked and accepted on 31.10.2002 and the overdraft was adjusted on the next day. The Enquiry Officer was of the view that the petitioner was not competent and authorized to allow overdraft and his action of himself allowing overdraft, without any arrangement and approval was wholly unauthorized and consequently, the charge was treated to be proved.
14. So far as the other allegation of purchase of bills from M/s Fashionque International is concerned, similar charges have been levelled against other senior officers, namely Sri J.S. Kushwaha, Sri Dhirendra Kumar and Sri P.P. Chachra. The case of the respondent bank is that the petitioner being a field officer processed purchase of bills without undertaking necessary verification and in the absence of appropriate sanction of competent authority, such purchases has exposed the financial interest of the bank. Sri Singh, appearing for the respondent bank has submitted that the magnitude of the misconduct attributed to the higher officers is of lesser significance as they had merely relied upon the report of the petitioner and correct facts had been intimated by them to the superior officers, therefore, imposition of lesser punishment upon such higher officers was justified.
15. Different authorities, who had been departmentally proceeded with apart from the petitioner, were responsible for permitting purchase of bills on different dates, but the petitioner's involvement has been found continuous from the stage of opening of account without due verification of the credential of proprietor, sanctioning unauthorized overdraft and processing purchase of bills, which is more serious.
16. In light of the aforesaid facts, we have examined the next contention of the petitioner that holding of separate enquiry has prejudiced him. It is admitted that the charge levelled against the petitioner, of unauthorizedly sanctioning overdraft, without any existing arrangement and approval of competent authority, is specific to petitioner himself. This charge is not levied against any other officer. The petitioner is a field officer and the nature of duties assigned to him is separate and distinct. The other officers, senior to the petitioner, essentially had supervisory functions to perform and the fact of purchase of bills had been clearly intimated by them to the higher authorities. In such circumstances, the petitioner cannot claim that he is similarly placed, merely because the transaction, giving rise to the misconduct, is the same.
17. A specific transaction may give rise to different nature of misconduct, for different officials, depending upon their duties and nature of responsibility. Even imposition of separate penalty, arising out of similar charge can also be justified depending upon nature of duties and responsibilities to be performed. The Apex Court in Akhilesh Kumar Singh vs. State of Jharkhand reported in (2008) 2 SCC 74 observed that quantum of punishment imposed on a delinquent employee by the appointing authority, however, depends upon several factors. Conduct of delinquent officer as also the nature of charges, play a vital role in this behalf.
18. In a subsequent decision of the Apex Court in Administrator, Union Territory of Dadra and Nagar Haveli vs. G.M. Lad reported in (2010) 5 SCC 775, which related to levy of different punishments against different officers subjected to a joint enquiry was also held to be valid. It was held that if the nature of charges were not exactly identical or substantially similar then no fault can be found with imposition of separate penalty.
19. Since in the present case, the nature of duty of the petitioner as well as charges levelled against him is different, therefore, the petitioner cannot claim parity with others. We, therefore, cannot accept the argument of Sri Khare that petitioner was discriminated on account of imposition of penalty of dismissal.
20. The further plea, which is inter-related, of holding common enquiry also has to be viewed in the context of different duties/charges required to be performed by the petitioner, as against other officers. Although, we do not find much substance in the defence pleaded by the management that on account of difference in hierarchy separate enquiry officers were appointed to conduct enquiry in the matter, yet, in view of the fact that nature of allegation against the petitioner as well as the duties assigned to him since was distinct from rest of the officials, therefore, we do not find fault with the course adopted by the management in holding separate enquiries arising out of the transaction, wherein nature of imputation has varied.
21. The further arguments of the petitioner that the findings of the different Enquiry Officers, in respect of similar charges, being contradictory to each other has been pressed. Charge no.4 levelled against the petitioner is stated to be same, as charge no.2 against Sri J.S. Kushwaha and charge no.3 against Sri Dhirendra Kumar. The petitioner and the other officers have been accused of having not verified the status of Sri Mahendra Singh and purchasing the bills. The allegation that M/s Fashionque International was actually a concern of Sri Ratan Mani has been pressed against the petitioner with reference to an order passed against the petitioner in the year 1999. It has also come on record that letters of M/s Fashionque International were addressed to 815, New Friends Colony, New Delhi, which was the registered address of M/s Shrestham International. The petitioner being a field officer, is clearly expected to have greater knowledge regarding the borrower, in view of the nature of duties assigned to him. Allegation of illegal encashing of bills of M/s Shrestham in the past i.e. in 1999 by the petitioner, are not denied. The charges of allowing overdraft in the absence of arrangement and necessary approval in favour of M/s Fashionque International also is a relevant circumstance. As against this, the other officers charged of same allegation neither have any previous association of favour extended to M/s Shrestham, nor they are expected to have field knowledge. In the absence of any material substantiating the charge against Sri J.S. Kushwaha and Sri Dhirendra Kumar, the conclusion drawn of not finding them guilty of the charge is neither discriminatory, nor can be said to be violating Article 14 of the Constitution of India. Similarly, in respect of charge of encashing of bills, the other officers had duly intimated relevant facts to the higher authorities by making endorsement, which clearly distinguishes their role from that of the petitioner. The petitioner had himself sanctioned and released overdraft. The imposition of punishment upon the petitioner will have to be viewed in the particular backdrop of this specific serious charge levelled only against the petitioner. The differential imposition of punishment to Sri J.S. Kushwaha and Sri Dhirendra Kumar of withholding of increments and imposition of censure entry for the charges of misconduct in encashing of bills cannot be said to be unjustified. Since the allegation against the petitioner of having allowed overdraft without any arrangement and approval, is very serious and specific to the petitioner, this itself differentiates the petitioner from other officers.
22. After having considered all the arguments advanced on behalf of the petitioner and upon consideration of materials available on record, we are of the concerned opinion that the charge attributed and proved against the petitioner is of a substantially greater misconduct, which justifies imposition of punishment of dismissal. The claim of parity qua other officers and consequential grievance of discrimination, are not made out.
23. The action of the petitioner in approving overdraft without any arrangement and approval of higher authorities, was clearly an act of misconduct by acting beyond the authority. The Apex Court in Disciplinary Authority vs. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69, held as under in para 7:-
"7. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every officer/employee of the bank to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. It requires the officer/employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him. Breach of Regulation 3 is 'misconduct' within the meaning of Regulation 24. The findings of the Inquiry Officer which have been accepted by the disciplinary authority, and which have not been disturbed by the High Court, clearly show that in a number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority. True, it is that in some cases, no loss has resulted from such acts. It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy; the advances have become sticky and irrecoverable. It is not a sigle act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a bank - for that matter, in the case of any other organization - every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organization/bank will disappear, the functioning of the bank would become chaotic and unmanageable. Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organization, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations.-------------. Acting beyond one's authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in this case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. -------- "
24. Similarly, the Apex Court in Chairman & Managing Director, United Commercial Bank and others vs. P.C. Kakkar reported in (2003) 4 SCC 364, held as under in para 14:-
"14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager vs. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
25. Similar view have been noticed by the Apex Court in UCO Bank and another vs. Rajinder Lal Capoor reported in (2007) 6 SCC 694.
26. In light of the law settled, we find that the petitioner has not been able to make out any case, which may justify interference with punishment imposed against the petitioner. Consequently, the writ petition fails and is dismissed.
Order Date :- 14.3.2014 Ashok Kr.