Page No.# 1/22

GAHC010226392014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3862/2014

PARITOSH KUMAR DAS

S/O- LT. PYARI MOHAN DAS, R/O- JAIL ROAD, SHILLONG, MEGHALAYA.

VERSUS

STATE BANK OF INDIA and 4 ORS

REP. BY ITS CHAIRMAN, MADAME CAME ROAD, MUMBAI- 400021.

2:CHIEF GENERAL MANAGER CUM APPELLATE AUTHORITY

STATE BANK OF INDIA

LOCAL HEAD OFFICE

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

3:THE GENERAL MANAGER NETWORK- II and APPOINTING AUTHORITY

LOCAL HEAD OFFICE

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

4:DISCIPLINARY AUTHORITY and DY. GENERAL MANAGER DGM

LOCAL HEAD OFFICE

VIGILANCE DEPTT.

N.E. CIRCLE

G.S. ROAD

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

5:ASSTT. GENERAL MANAGER

REGION I

ZONAL OFFICE

DHANKHETI

SHILLONG- 1 Page No.# 1/22

GAHC010226392014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3862/2014

PARITOSH KUMAR DAS

S/O- LT. PYARI MOHAN DAS, R/O- JAIL ROAD, SHILLONG, MEGHALAYA.

VERSUS

STATE BANK OF INDIA and 4 ORS

REP. BY ITS CHAIRMAN, MADAME CAME ROAD, MUMBAI- 400021.

2:CHIEF GENERAL MANAGER CUM APPELLATE AUTHORITY

STATE BANK OF INDIA

LOCAL HEAD OFFICE

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

3:THE GENERAL MANAGER NETWORK- II and APPOINTING AUTHORITY

LOCAL HEAD OFFICE

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

4:DISCIPLINARY AUTHORITY and DY. GENERAL MANAGER DGM

LOCAL HEAD OFFICE

VIGILANCE DEPTT.

N.E. CIRCLE

G.S. ROAD

P.O.- ASSAM SACHIVALAYA

DISPUR

GHY- 6.

5:ASSTT. GENERAL MANAGER

REGION I

ZONAL OFFICE

DHANKHETI

SHILLONG- 1

Page No.# 2/22

MEGHALAYA

Advocate for the Petitioner : MR.S K GHOSH

Advocate for the Respondent : MR.S S SHARMA

Linked Case : I.A.(Civil)/1078/2016

PARITOSH KUMAR DAS

VERSUS

STATE BANK OF INDIA and 4 ORS

------------

Advocate for : MR.S K GHOSH

Advocate for : MR.S S SHARMA appearing for STATE BANK OF INDIA and 4 ORS

BEFORE

HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 02.04.2024

Date of Judgment : 02.04.2024

Judgment & order(Oral)

Heard Mr. S. K. Ghosh, learned counsel, appearing on behalf of the

petitioner. Also heard Mr. H. Buragohain, learned standing counsel, State Bank

of India, appearing on behalf of all the respondents.

2. The petitioner by way of instituting the present writ petition, has

presented a challenge to an order, dated 07.11.2013, passed by the disciplinary

authority imposing upon him a penalty of dismissal from service on conclusion

of a departmental proceeding initiated against him. The petitioner has also

presented a challenge to an order, dated 08.04.2014, passed by the appellate

authority rejecting the appeal as preferred in the matter by the petitioner.

Page No.# 3/22

3. As projected in the writ petition, the petitioner, herein, while working as a

Deputy Manager, State Bank of India, Nongstain Branch, received a

communication, dated 18.11.2011, requiring him to submit his explanation on

the allegations as levelled against him therein. The allegations as levelled

against the petitioner in the said communication, dated 18.11.2011, pertains to

the action on his part in dealing with TDS amount, as credited to the Bankers’

Cheque Accounts, of customers who were exempted from TDS deductions.

4. The petitioner vide his reply, available at Annexure-II to the writ petition,

while submitting his clarifications in the matter, had admitted to the fact that the

amount involved were transferred in favour of a third-party, but the same was

said to have been done unmindfully for which he had expressed regret and had

contended that such incident will not happen in future. Not being satisfied with

the reply as submitted by the petitioner, the disciplinary authority proceeded to

institute a departmental proceeding against him by way of issuing a charge-

sheet, dated 18.07.2012. The article of charge as framed against the petitioner

pertain to the illegality as committed by him in payment of a good number of

Bankers’ Cheques. The statement of imputation as annexed to the charge-sheet

levelled 3 allegations on the issue against the petitioner. The petitioner vide his

written statement, dated 08.08.2012, replied to the allegations as levelled

against him and placed on record, his clarifications in the matter. Thereafter, the

reply of the petitioner not being satisfactory, an inquiry was directed against the

petitioner and the Inquiry Officer on conclusion of the said inquiry, proceeded to

hold that the allegations No. 2 and 3 as levelled against him vide the said

charge-sheet to be proved while the allegation No. 1 was held to be not proved.

Page No.# 4/22

5. The disciplinary authority, thereafter, on consideration of the Inquiry

Report, proceeded to draw his own conclusions in the matter and in terms of

the conclusions so drawn, a disagreement note was prepared with regard to

allegation No. 1 and the same was held to be proved while the allegation No. 2

which was held to be proved by the Inquiry Officer, was agreed to by the

disciplinary authority whereas the allegation No. 3 which was held to be proved

by the Inquiry Officer; was held to be not proved by the disciplinary authority.

Accordingly, along with the Inquiry Report, the findings of the disciplinary

authority was forwarded to the petitioner vide communication, dated

30.07.2013. The petitioner, thereafter, responded to the said communication,

vide his representation, dated 19.08.2013.

6. The disciplinary authority, on perusal of the representation as submitted by

the petitioner, proceeded vide communication, dated 25.10.2013, to hold that it

is proposed to impose a major penalty upon the petitioner i.e. removal from

service and accordingly, he was afforded an opportunity of hearing before the

disciplinary authority on the date so fixed. The petitioner appeared before the

disciplinary authority and also made a written submission in the matter on

06.11.2013. Thereafter, on consideration of the matter and having found the

conduct of the petitioner with regard to the allegations as levelled against him

to be unbecoming of an Bank Officer, proceeded vide the order, dated

07.11.2013, to impose upon the petitioner the penalty of removal from service.

7. The petitioner, being aggrieved, submitted an appeal on 17.01.2014,

against the order, dated 07.11.2013, before the designated appellate authority.

The appellate authority on a detailed consideration of the matter, proceeded,

Page No.# 5/22

vide an order, dated 08.04.2014, to reject the said appeal. The order, dated

08.04.2014, issued by the appellate authority in the matter was forwarded to

the petitioner vide a communication, dated 16.04.2014. Being aggrieved by the

order of the disciplinary authority as well as the appellate authority in the

matter; the petitioner has instituted the present proceeding.

8. Mr. Ghosh, learned counsel for the petitioner, has submitted that a perusal

of the allegations so levelled against the petitioner in the charge-sheet, dated

18.07.2012, would reveal that the petitioner had not committed any misconduct

in the matter and he had actually advanced the image of the Bank by providing

to the beneficiaries the amount as deducted from them towards TDS deductions

and which were kept in the Bank in the form of a Bankers’ Cheque.

9. Mr. Ghosh, learned counsel, has contended that the materials as coming

on record has not proved the allegations as levelled against the petitioner and it

is stated that the beneficiaries who had appeared in the inquiry, had actually

admitted to have received the amount involved in the matter.

10. Mr. Ghosh, learned counsel for the petitioner, has contended that although

the PW-6, one of the beneficiaries, had deposed that she had signed the money

receipt evidencing the receipt of the money in the course of her examination-in-

chief taken on 08.05.2013, however, such examination was so made behind the

back of the petitioner and thereafter, the said witness was not produced for

cross-examination by the petitioner or by his defence representative.

Page No.# 6/22

11. Mr. Ghosh has also contended that the penalty as imposed upon the

petitioner was so imposed without having regard to the evidences coming on

record and the same was so done only to punish the petitioner for reasons other

than that evidenced during the course of the inquiry.

12. Mr. Ghosh, learned counsel, has submitted that the penalty of removal

from service as imposed upon the petitioner, is grossly disproportionate to the

allegations as levelled against him moreso in the light of the evidences coming

on record in the inquiry proceeding. In the above premises, Mr. Ghosh, has

prayed that this Court would be pleased to interfere with the penalty as imposed

upon the petitioner vide the order, dated 07.11.2013, and consequently, the

appellate authority’s order, dated 08.04.2014, also requires to be interfered

with.

13. Per contra, Mr. Buragohain, learned counsel for the respondent Bank, has

submitted that the inquiry had proceeded against the petitioner by affording him

to all reasonable opportunity to defend the allegations as levelled against him.

14. Mr. Buragohain, learned counsel, has submitted that although the

prosecution witnesses were offered for cross-examination immediately after

their examination-in-chief, however, the petitioner as well as his defence

representative refused to cross-examine the said witnesses after their

examination-in-chief were over and the same was contended only with a view to

prolong the inquiry. It was also contended that some of the witnesses were

subsequently cross-examined and defence exhibits introduced through them.

Page No.# 7/22

15. Mr. Buragohain, learned counsel for the respondent Bank, has contended

that the customers of the Bank who had deposed in the inquiry as prosecution

witnesses not being under the control of the Bank authorities, a few of them

after deposition in their examination-in-chief and the refusal of the petitioner to

cross-examine them at that point of time, could not be, thereafter, produced for

their examination in-as-much as the said witnesses thereafter did not respond

to the request made for appearance in the inquiry by the Bank authorities and

the Bank was not in a position to compel their presence. However, it is

contended that the said aspect of the matter did not cause any prejudice to the

defence of the petitioner, herein.

16. Mr. Buragohain, learned counsel, has further submitted that the petitioner

being a Bank employee is expected to have an impeccable honesty and integrity

and the petitioner herein, having been found to be a man with suspected

financial integrity and honesty; he was rightly imposed with the penalty of

removal from service after holding a free and fair inquiry by complying with the

principles of natural justice.

17. Mr. Buragohain, learned counsel for the respondent Bank has submitted

that the Inquiry Officer had arrived at his findings basing on the materials

available on record which were again examined in detail by the disciplinary

authority who had also basing on materials coming on record, forwarded his

views with regard to the allegations levelled against the petitioner. Accordingly,

it was contended that due application of the mind of the authorities involved in

the process being evident; the decisions as arrived at in the matter requires no

Page No.# 8/22

interference from this Court.

18. Mr. Buragohain, learned counsel, has submitted that a perusal of the

findings as recorded by the Inquiry Officer as well as by the disciplinary

authority with regard to the allegations levelled against the petitioner, would

reveal that the same was so recorded basing on the materials coming on record

in the inquiry proceeding and accordingly, there exists no infirmity with regard

to the same and accordingly, this Court would be pleased not to interfere with

the penalty as imposed upon the petitioner.

19. I have heard the learned counsels appearing for the parties and also

considered the materials placed on record.

20. The allegations as levelled against the petitioner through the charge-

sheet, dated 18.07.2012, being relevant, is extracted hereinbelow:

ANNEXURE-II

STATEMENT OF IMPUTATION OF LAPSES AGAINST SHRI PARITOSH KUMAR DAS, MMGS-II IN

RELATION TO ARTICLE OF CHARGE(S) ALLEGED AGAINST HIM VIDE ANNEXURE-I, WHILE SHRI DAS

WAS POSTED AS DEPUTY MANAGER (BRANCH OPERATIONS) OF STATE BANK OF INDIA, MAIRANG

BRANCH DURING THE PERIOD FROM 1ST JUNE, 2010 TO 2ND MAY, 2011

ALLEGATION NO.1

It is alleged that while refunding the undernoted TDS amount to the following STDR customers, you

had issued Banker's cheques in favour of the respective beneficiaries instead of crediting to their

accounts. Subsequently, on 16/08/2010 you had cancelled those Banker' cheques with malafide

intention and issued a draft/IOI No. 40941932 for Rs 18000/-in favour of one M/s S P Stationery

drawn on our Malki branch. The remaining amount of the aforesaid Banker's cheques i.e. Rs 632/-

you credited to Branch Commission a/c (98353057344) in two parts i.e. Rs 236/- & Rs 396/- on the

same day to camouflage your misdeeds. Thus, you allegedly misappropriated customers' money with

malafide motive by violating Bank's laid down systems & procedures.

Page No.# 9/22

SI NB./Chq No Date of issue TDS amount Beneficiary Date of

payment

1 803546 17/04/09 Rs. 11,824/- Ibina

Marbaniang

16/08/10

2 803560 17/04/09 Rs. 1,205/- Telmeris

Nongrang

16/08/10

3 803552 17/04/09 Rs. 2,454/- Distar

Kharsyntiew

16/08/10

4 803559 17/04/09 Rs. 3,101/- Kmensimai

K.Syntie

16/08/10

5 803573 17/04/09 Rs. 48/- Trilian Warjri16/08/10

Total Rs. 18,632/-

ALLEGATION NO. 2

It is further alleged that you had received the cash payment of the following banker's cheques as

detailed below from both Shri Aibor Singh Wanwar, Senior Assistant and Shri Anselem Nongkynrih,

Special Assistant which were posted by them at your instance and subsequently authorized for

payment by you in the system, although you were not the beneficiaries of the instruments. The

aforesaid amount was returned to the beneficiaries much later from the date of payment of the said

Banker's cheques. Thus, it is alleged that you had misappropriated the customers money by violating

Bank's laid down systems & procedures.

SI NB./Chq No Date of issue TDS amount Beneficiary Date of

payment

1 803574 17/04/09 Rs. 11,824/- Trilian Warjri17/08/10

2 942177 26/10/10 Rs. 2,664/- T.Kharsyntiew26/10/10

3 942179 26/10/10 Rs. 2,306/-Jarop Jyrwa 26/10/10

4 942083 29/09/10 Rs. 3,780/- B.R.Ryntathiang29/09/10

5 942176 26/10/10 Rs. 1,303/- L.Marbanlang01/11/10

6 803496 04/04/09 Rs. 5,000/- Karbsius

Marbaniang

20/11/10

7 803491 04/04/09 Rs. 11,391/-Stanly Nonglait11/11/10

Page No.# 10/22

8 941999 15/09/10 Rs. 15,050/-Kwinly Warbah17/09/10

9 942178 26/10/10 Rs. 2,460/-Margaret

k.Syntiew

27/10/10

10 22017 19/05/10 Rs. 4,542/-J Dkhar 14/09/10

11 941999 15/09/10 Rs. 15,050/-Kwinly Warbah20/08/10

ALLEGATION NO.3

It is also alleged that you yourself had posted the banker's cheques as detailed in the Allegation No. 2

in the system and put up for passing the queue so generated in the system to another officer of the

branch which was rejected by the officer concerned considering the irregularities. However, later on

you yourself had posted and passed those banker's cheques in the system. Thus, it is alleged that you

had willfully violated the Bank's laid down systems & procedures for malafide intention.

21. Before proceeding to examine the allegations so levelled against the

petitioner, it is to be noted that the Inquiry Officer in his Inquiry Report, dated

24.07.2013, had held the allegation No. 1 to be not proved while he had held

the allegations No. 2 and 3 to be so proved. The disciplinary authority on

perusal of the materials had disagreed with the conclusions as reached by the

Inquiry Officer with regard to the allegations No. 1 and 3 and thereafter,

allegation No. 1 was held to be proved against the petitioner and allegation No.

3 was held not to be so proved.

22. A perusal of the allegations as levelled against the petitioner would reveal

that the same pertains to his conduct in dealing with the disbursal of the

amounts deducted towards Tax Deducted at Source(TDS) from the accounts of

the customers who admittedly being residents of the Sixth Schedule area, were

exempted from such deductions. The allegation No. 1 pertains to the manner in

which an amount of Rs. 18,632/- available in the Bank from TDS deductions of

around 5 customers were dealt with by the petitioner. It is a position also

Page No.# 11/22

admitted to by the petitioner that out of the said amount; an amount of Rs.

18000/- was issued in a form of a Draft/IOL in favour of one M/s S. P. Stationery

drawn on State Bank of India Malki Branch and the remaining amount of Rs.

632/- was credited to the said Branch as Commission in two parts i.e. Rs. 236/-

and Rs. 396/-. The said Draft/IOL was so made on 16.08.2010. M/s. S. P.

Stationery admittedly is not one of the entities from whom the TDS amounts

were so deducted and the said entity was in no way entitled to receive the

amount so involved. Accordingly, it is seen that the petitioner had acted in the

manner unbecoming of a Bank Official and the same had exposed the Bank to

the demands being made by the customers to whom the said amount would

actually have accrued to.

23. The disciplinary authority on consideration of the materials coming on

record, had recorded a finding to the effect that the petitioner after joining the

said Branch on 01.06.2010 and having come to learn about the said unpaid

Bankers’ Cheques lying with the Bank for more than 1 year because of the

ignorance of the local customers, taking advantage of the situation, had

involved in malpractice. The petitioner was contended to have admitted to the

above position in his reply, dated 08.08.2012, to the charge-sheet, dated

18.07.2012, wherein, he had stated that the above act of his was on account of

an error. It was further contended that the petitioner had submitted that the

Draft could not be cancelled as it was delivered to the party against whom it

was drawn on 16.08.2012. However, it was contended that the TDS amounts

involved, were returned to the customers on the next day itself. While the

petitioner had contended about a rectification process being undertaken,

however, the records did not reflect any such rectification exercise so carried-out

Page No.# 12/22

by him. The money receipts as produced by the petitioner in the form of

defence exhibits, however, did not reveal that the money was so paid to them

on the next day itself.

24. It was further contended that the entire exercise for disbursal of the

amount as lying in the form of Bankers’ Cheques with the Bank was so initiated

by the petitioner himself and the amount was so credited in a form of a Draft

and Commission to the Bank as noticed hereinabove. Accordingly, the said

allegation was held to be proved against the petitioner.

25. With regard to the allegation No. 2, the Inquiry Officer had contended that

the petitioner had received the cash payment against the Bankers’ Cheques as

involved in the said allegation himself from the Senior Assistant and Special

Assistant of the Bank who had posted the same in the system at his instance

and subsequently, the petitioner had authorized for the payment of the same

which was again received by himself although he was not the beneficiary of the

said instruments. In the Inquiry Report, it was held that the petitioner had

resorted to misappropriation and/or temporary misappropriation in the matter

and accordingly, the said charge was held to be proved.

26. With regard to the allegation No. 3, the same although was held to be

proved by the Inquiry Officer, the disciplinary authority basing on the materials

coming on record, held the said charge not to be proved against the petitioner

and accordingly, the same is not dealt with.

Page No.# 13/22

27. Accordingly, in view of the above position, it is to be noted that it is the

allegations No. 1 and 2 which had been held to be so proved against the

petitioner, herein, and it is to be seen as to whether the same having been

established, would mandate the imposition of a penalty of removal from service

as was imposed upon the petitioner in the matter by the disciplinary authority

vide the order, dated 07.11.2013.

It is to be noted that the petitioner is a Bank official and the conduct as

expected from him in discharge of his duties, is of a higher degree.

28. Mr. Ghosh, learned counsel for the petitioner, has submitted that the

petitioner was not extended with an opportunity to cross-examine certain PWs

who had deposed in the inquiry. The said grievance is raised in respect of PWs

who were customers and in whose favour the TDS deductions were due for

payment. The respondent Bank had clarified the above matter and has

contended that on conclusion of the examination-in-chief of such Bank

customers who had deposed as PWs in the matter; the petitioner as well as his

defence representative were asked to cross-examine such witnesses, however,

the petitioner as well as his defence representative refused to cross-examine

such PWs immediately after their examination-in-chief and had contended that

they would be so cross-examined after the conclusion of deposition of all

prosecution witnesses. It is contended by the respondent Bank that the

witnesses whom the petitioner now alleged were not offered to him for cross-

examination were the bank customers who had appeared and deposed in the

inquiry and because of non cross-examination by the petitioner and/or by his

defence witnesses, they were discharged on that day itself. However, the Bank

Page No.# 14/22

despite taking all possible steps for their re-appearance of such witnesses in the

inquiry proceeding had failed to do so and the Bank not having control of such

Bank customers/PWs, could not compel the presence of the said witnesses.

29. At this stage; it is to be noted that while the petitioner has made a

contention to the effect that he was denied an opportunity to cross-examine

certain PWs, he has not contended in the inquiry proceeding or in the present

proceeding as to what prejudice was so caused to him in the matter on account

of non cross-examination of the said witnesses who admittedly were offered to

him for cross-examination immediately after their examination-in-chief. The

petitioner having not accepted the opportunity as afforded to him to cross-

examine the said witnesses and having allowed the witnesses to leave the

inquiry, later, it being impossible on the part of the Bank authorities to compel

their presence again in the inquiry; the petitioner now cannot be permitted to

take advantage of the said lapse. The petitioner has been unable to

demonstrate before this Court as to what prejudice was caused to him due to

non cross-examination of the said witnesses.

30. It is also to be noticed and emphasized that in banking business, absolute

devotion, diligence, integrity and honesty needs to be preserved by every Bank

employee and in particular, a Bank Officer and if this is not observed; the

confidence of the public/depositors would be impaired.

31. In this connection, this Court would refer to the decision of the Hon’ble

Supreme Court rendered in the case of Chairman-cum-Managing Director,

Page No.# 15/22

United Commercial Bank & ors. v. P. C. Kakkar, reported in (2003) 4 SCC

364, wherein, it was noted that a Bank Officer is required to exercise higher

standard of honesty and integrity. The Hon’ble Supreme Court in this connection

had proceeded to draw the following conclusions:

“14. A Bank officer is required to exercise higher standards of honesty and integrity.

He deals with money of the depositors and the customers. Every officer/employee of

the Bank is required to take all possible steps to protect the interests of the Bank and

to discharge his duties with utmost integrity, honesty, devotion and diligence and to

do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are

inseparable from the functioning of every officer / employee of the Bank. As was

observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja

Bihari Patnaik(1996 (9) SCC 69). 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.”

32. In the case on hand; it is seen that the manner in which the petitioner had

discharged his duties as evident from the allegations so levelled against him in

the charge-sheet, in question; it is seen that the Bank had lost confidence on

him and the materials that had come on record in the inquiry as well as the

findings of the Inquiry Officer and the disciplinary authority in the matter had

affirmed such loss of confidence upon him. In this connection; a reference is

made to the decision of the Hon’ble Supreme Court in the case of Divisional

Controller, Karnataka State Road Transport Corporation v. M. G. Vittal Rao,

reported in (2012) 1 SCC 442. The conclusions in this connection pertaining to

loss of confidence by the employee and the employer is extracted hereinbelow:

“Loss of confidence.

25. Once the employer has lost the confidence in the employee and the bona fide loss

of confidence is affirmed, the order of punishment must be considered to be immune

from challenge, for the reason that discharging the office of trust and confidence

requires absolute integrity, and in a case of loss of confidence, reinstatement cannot

be directed.

Page No.# 16/22

26. In Kanhaiyalal Agrawal v. Gwalior Sugar Co. Ltd. 32 this Court laid down the test

for loss of confidence to find out as to whether there was bona fide loss of confidence

in the employee, observing that, (SCC p. 614, para 9)

(i) the workman is holding the position of trust and confidence; (ii) by abusing such

position, he commits an act which results in forfeiting the same; and (iii) to continue

him in service/establishment would be embarrassing and inconvenient to the

employer, or would be detrimental to the discipline or security of the establishment.

Loss of confidence cannot be subjective, based upon the mind of the management.

Objective facts which would lead to a definite inference of apprehension in the mind

of the management, regarding trustworthiness or reliability of the employee, must be

alleged and proved.

27. In SBI v. Bela Bagchi this Court repelled the contention that even if by the

misconduct of the employee the employer does not suffer any financial loss, he can be

removed from service in a case of loss of confidence. While deciding the said case,

reliance has been placed upon its earlier judgment in Disciplinary Authority-cum-

Regional Manager v. Nikunja Bihari Patnaik.

28. An employer is not bound to keep an employee in service with whom relations have

reached the point of complete loss of confidence/faith between the two.

29. In Indian Airlines Ltd. v. Prabha D. Kanan, while dealing with the similar issue

this Court held that: (SCC p. 90, para 56)

"56. ...loss of confidence cannot be subjective but there must be objective facts

which would lead to a definite inference of apprehension in the mind of the

employer regarding trustworthiness of the employee and which must be alleged

and proved."

30. In case of theft, the quantum of theft is not important and what is important is

the loss of confidence of employer in employee. (Vide A.P. SRTC v. Raghuda Siva

Sankar Prasad 43.)

31. The instant case requires to be examined in the light of the aforesaid settled legal

proposition and keeping in view that judicial review is concerned primarily with the

decision-making process and not the decision itself. More so, it is a settled legal

proposition that in a case of misconduct of grave nature like corruption or theft, no

punishment other than the dismissal may be appropriate.”

33. It is also required to take notice of a decision of the Division Bench of this

Court in the case of Bijoy Rajkhowa v. State Bank of India & ors., reported in

(2013) 2 GLR 6 wherein, in a matter pertaining to a misconduct committed by a

Bank employee, this Court had recorded the following conclusion:

Page No.# 17/22

“24. Conduct of a bank employee must be above board. He is required to maintain

absolute integrity, which is of paramount consideration. On his conduct rests the

confidence of the customers of the bank. Compromise with doubtful integrity will not

only erode the faith of the people using the bank's facilities but also in the

functioning of the bank itself. In such matters, quantum of mis-appropriation is

immaterial the factum of mis-appropriation itself would justify the disciplinary action

taken. Considering the above, in the present case, we do not find any good and

sufficient ground to interfere with the punishment imposed.”

34. In view of the position of law as brought to light by the decisions of the

Hon’ble Supreme Court and of this Court as noticed hereinabove; it has to be

held that the petitioner had lost the confidence of his employer on account of

the misconduct as committed by him in the matter and accordingly, the penalty

of removal from service as imposed upon the petitioner does not warrant any

interference.

35. However, this Court would also like to deal the contention raised by the

learned counsel for the petitioner that the penalty of removal from service as

imposed upon the petitioner is grossly disproportionate to the allegations as

levelled against him and accordingly, the same requires to be interfered with.

36. This Court in this connection would like to again refer to the decision of

the Hon’ble Supreme Court in the case of P. C. Kakkar(supra) wherein in this

connection, the following conclusions were drawn by the Court:

“15. It needs no emphasis that when a Court feels that the punishment is shockingly

disproportionate, it must record reasons for coming to such a conclusion. Mere

expression that the punishment is shockingly disproportionate would not meet the

requirement of law. Even in respect of administrative orders Lord Denning M.R. in

Breen v. Amalgamated Engineering Union [1971 (1) All E.R. 1148] observed "The giving

of reasons is one of the fundamentals of good administration". In Alexander

Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give

reasons amounts to denial of justice". Reasons are live links between the mind of the

decision taker to the controversy in question and the decision or conclusion arrived

at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons

is that if the decision reveals the "inscrutable face of the sphinx", it can, be its

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silence, render it virtually impossible for the Courts to perform their appellate

function or exercise the power of judicial review in adjudging the validity of the

decision. Right to reason is an indispensable part of a sound judicial system. Another

rationale is that the affected party can know why the decision has gone against him.

One of the salutary requirements of natural justice is spelling out reasons for the

order made, in other words, a speaking out. The "inscrutable face of a sphinx" is

ordinarily incongruous with a judicial or quasi-judicial performance. But as noted

above, the proceedings commenced in 1981. The employee was placed under

suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the

criminal case is not determinative of the commission of misconduct or otherwise, and

it is open to the authorities to proceed with the disciplinary proceedings,

notwithstanding acquittal in criminal case. It per se would not entitle the employee to

claim immunity from the proceedings. At the most the factum of acquittal may be

circumstance to be considered while awarding punishment. It would depend upon

facts of each case and even that cannot have universal application.”

37. The allegations as levelled against the petitioner on being established in

the inquiry held and the same having demonstrated a misconduct being

committed in the matter by the petitioner who admittedly was a responsible

Officer of the respondent Bank; it is to be noted that the petitioner cannot be in

any manner be extended with any sympathy. The allegations levelled against

the petitioner having been held to have been established and the misconduct as

committed by him being apparent, the penalty as imposed upon him, cannot be

stated to be disproportionate to the proved misconduct. It is a settled position

of law that the penalty that is to be imposed upon the petitioner is the

discretion of the disciplinary authority. Of course, this discretion has to be

examined objectively keeping in mind the nature and gravity of the charge. The

disciplinary authority is to decide a particular penalty specified in the relevant

Rules. A host of factors go into the decision making process while exercising

such a discretion which include, apart from the nature and gravity of

misconduct, past conduct, nature of duties assigned to the delinquent,

responsibility of duties assigned to the delinquent, previous penalty, if any, and

the discipline required to be maintained in the establishment where he so

works, as well as in extenuating circumstances, if any. Accordingly, the penalty

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as imposed upon the petitioner in the matter, in the considered view of this

Court, is proportionate to the allegations levelled against him and established in

the inquiry.

38. It is also a settled position of law that if the appellate authority is of the

opinion that the case warrants a lesser penalty, it can reduce the penalty so

imposed by the disciplinary authority. Such a power which vests with the

departmental appellate authority, is ordinarily not available to the court or a

tribunal. The Court while undertaking judicial review of the matter is not

supposed to substitute its own opinion on reappraisal of the facts. In exercise of

power of judicial review, however, this Court can interfere with the punishment

imposed when it is found to be totally irrational or is outrageous in defiance of

logic. This limited scope of judicial review is permissible and interference is

available only when the punishment is shockingly disproportionate, suggesting

lack of good faith. Otherwise, merely because in the opinion of this Court, lesser

punishment would have been more appropriate, cannot be a ground to interfere

with the discretion of the departmental authorities. This Court in the present

proceeding has not found any special circumstances warranting interference

with the penalty as imposed upon the petitioner.

39. It is only when the punishment is found by this Court to be outrageously

disproportionate to the nature of the allegations levelled against the delinquent

that the principle of proportionality would come into play. It is, however, to be

borne in mind that this principle would be attracted, which is in tune with the

doctrine of Wednesbury rule of reasonableness, only when in the facts and

circumstances of the case, penalty imposed is so disproportionate to the nature

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of charge that it shocks the conscience of the court and the court is forced to

believe that it is totally unreasonable and arbitrary.

40. The principle of proportionality was first propounded by Lord Diplock in

Council of Civil Service Unions v. Minister for the Civil Service in the following

words:(AC p. 410 D-E)

“........ Judicial review has I think developed to a stage today when without

reiterating any analysis of the steps by which the development has come about, one

can conveniently classify under three heads of the grounds upon which administrative

action is subject to control by judicial review. The first ground I would call 'illegality',

the second 'irrationality' and the third 'procedural impropriety'. This is not to say that

further development on a case by case basis may not in course of time add further

grounds. I have in mind particularly the possible adoption in the future of the

principle of 'proportionality'."

41. The Hon’ble Supreme Court had approved the aforesaid principle in the case

of Ranjit Thakur v. Union of India, reported in (1987) 4 SCC 611, wherein,

the Hon’ble Supreme Court by emphasising that "all powers have legal limits"

invoked the aforesaid doctrine in the following words in paragraph No. 25.

Paragraph No. 25 of the said judgment being relevant, is extracted hereinbelow

for ready reference: (SCC p. 620, para 25)

"25. The question of the choice and quantum of punishment is within the jurisdiction

and discretion of the court martial. But the sentence has to suit the offence and the

offender. It should not be vindictive or unduly harsh. It should not be so

disproportionate to the offence as to shock the conscience and amount in itself to

conclusive evidence of bias. The doctrine of proportionality, as part of the concept of

judicial review, would ensure that even on an aspect which is, otherwise, within the

exclusive province of the court martial, if the decision of the court even as to sentence

is an outrageous defiance of logic, then the sentence would not be immune from

correction. Irrationality and perversity are recognised grounds of judicial review."

42. In view of the pronouncement, as noticed above in the matter, of the

Hon’ble Supreme Court as well as of this Court; it is clear that it is not for the

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writ Court to interfere with the punishment imposed by the disciplinary authority

which is a matter within the domain and the jurisdiction of the said authority. If

the Bank has lost its confidence on the petitioner, herein, it is within its

competence and jurisdiction to impose the penalty as it may consider adequate

commensurating to the misconduct attributed and proved. It is not for the writ

Court to describe another penalty in lieu of the penalty imposed by the

disciplinary authority. It will have to be borne in mind that the job entrusted to

the petitioner holding a responsible position in a financial institution like a Bank

is that of faith and confidence and once it is lost, it is for the bank to decide

what penalty is to be imposed. The amount involved is immaterial, what matters

much is tarnishing the image of the Bank in the eyes of the valued customers

and public. The petitioner being a Bank employee ought to have maintained

utmost integrity, devotion, diligence and honesty, which, he admittedly, has

failed to do so.

43. Accordingly, in view of the above discussions and conclusions, this Court if

of the considered view that, given the facts and circumstances as existing in the

matter, it has to be held that the penalty as imposed upon the petitioner

commensurates to the misconduct as established against him in the matter and

the same does not call for any interference from this Court.

44. For all the aforesaid reasons, this Court does not find any merit in the writ

petition and accordingly, the same is dismissed upholding the impugned order,

dated 07.11.2013, passed by the disciplinary authority as well as the order,

dated 08.04.2014, passed by the appellate authority.

Order downloaded on 24-12-2024 05:59:53 PMPage No.# 22/22

45. The writ petition accordingly stands dismissed. However, there shall be no

order as to costs.

JUDGE

Comparing Assistant