TMI Blog2004 (11) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in this appeal questioned the order of removal from service by the Appellate Authority. The appellant joined the services of the Bank as a clerk in 1963. He was chargesheeted for such irregularities committed by him while working as Branch Manger of Konkan Bhavan Branch of the Bank from 1982-1984. There were total seven charges imputed against him. The Enquiry Officer appointed by the Disciplinary Authority conducted an enquiry and submitted his report to the Disciplinary Authority. In his report, the Enquiry Officer dropped one charge out of seven charges and out of remaining six charges five charges had not been proved. The Enquiry Officer held that only charge No. 5 pertaining to grant of advance by the appellant to his wife was proved. This Enquiry Report did not contain any recommendation regarding punishment. According to the appellant, this report was not communicated to him for more than two years. On 24.4.1991, the Disciplinary Authority sent the report of the Enquiry Officer to the appellant and he was asked to make his representation on the report. The Disciplinary Authority recommended to the Punishing/Appointing Authority of the appellant the punishment of reduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us three contentions:- 1.That the appeal was considered by the Appellate Authority although it was time barred. 2. That the Appellate Authority considered the charge which had not been proved while coming to the conclusion that the punishment was required to be enhanced to one of removal from ser vice and 3. That the order of removal from service could not be sustained as no personal hearing was given to the appellant before the enhancement of punishment even though personal interview was specifically asked for. According to the appellant he had faced the enquiry in unfortunate circumstances as his wife, who was also a bank officer had committed suicide on 26.7.1988, during the pendency of the enquiry against the appellant. Mr. K. Ramamurthy in support of his contention relied on the following judgments: 1. Ram Chander vs. Union of India Ors. AIR 1986 SC 1173 2. Ram Niwas Bansal vs. State Bank of Patiala Anr. !998 (4) SLR 711 3. Makeshwar Nath Srivastava vs. The State of Bihar and Ors. 1971 (1) SCC 662 4. Bhagat Ram vs. State of Himachal Pradesh Ors.1983 (2) SCC 442 5. Ranjit Thakur vs. Union of India Ors. 1987 (4) SCC 611 6. Dev Singh vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r counsel for the appellant on Charge No.1 and Charge No.5 with reference to the pleadings and records and the judgments cited above at the Bar. The findings of the disciplinary authority show that the bank had found guilty of only one charge, which had been established against him that namely he had granted loan under the scheme meant for Educated Unemployed Youth to his wife. Although the cheque for the loan which was sanctioned, had not been encashed, the intention of the appellant to disburse the same in a dishonest way to his wife was amply proved. Rule 34(3)(1) reads as follows: 34(3)(1) No employee shall grant on behalf of the State Bank any loan or advance to himself or his spouse, a joint Hindu Family of which he or his spouse is a member or a partnership with which he or his spouse is connected in any manner or a trust in which he or his spouse is trustee, or a private or public limited Company, in which he or his spouse hold substantial interest. Charge No. 5 relate to the sanction of loan by the appellant to his wife which reads as follows:- You granted loan under SEEUY scheme to your spouse thereby violating Rule No. 34(3) of the State Bank of India (Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sbursement of loan to the wife of the appellant in violation of Rule 33(1) of the Service Rules and that the Order of the Appellate Authority does not in any manner disclose that the same was passed by considering the circumstances germane to the charge against the appellant which had been proved. Even accepting the contention of Mr. Ramamurthy on Charge No.1, the appellant cannot come out of the charge No. 5, which is more serious and grave in nature. However, we observe that the observations made by the Appellate Authority on Charge No.1 while considering charge No.5, should be treated only as a passing observation and at the same time we cannot ignore or close our eyes in regard to the finding of the appellate authority on Charge No. 5 which is more serious and grave in nature. The appellate authority had enhanced the punishment imposed by following the procedure laid down in the service Rules and we see no reason to interfere with the same. As already noticed, the appellant had himself admitted his misconduct and therefore, there is no reason why the appellate authority's finding on charge No. 5 should not be accepted. The third contention relate to non-grant of personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, no loss whatsoever accrued to the Respondent Bank as no disbursal of the relevant loan took place. He pleaded that the punishment of removal be set aside and the punishment imposed by the disciplinary authority be restored and justice rendered to the appellant. It is true that the appellate authority has proposed to enhance the punishment and imposed the penalty of dismissal on the appellant. However, the appellate authority was convinced with regard to the explanation submitted by the appellant and reduced the penalty further considering the adverse family circumstances, which could be seen from the following observation in the appellate order:- I, therefore, direct that the earlier penalty of reduction in basic pay by one stage imposed on him by the Appointing Authority be enhanced to removal from service in terms of Rule 67(g) of the State Bank of India Officers Service Rules. The tentative decision taken while serving the show cause notice was to dismiss Shri Sirur from service. Although, considering the acts of misdemeanour of the appellant, this was the appropriate penalty, I have taken a lenient view of the matter because of his adverse family circumstances. Rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven. In Ram Niwas Bansal vs. State Bank of Patiala and Anr. 1998(4) SLR 711, this Court held:- 14. Under Regulation 70 of the Regulations wide power and discretion has been vested in the appellate authority. The appellate authority is under obligation to consider (a) whether the findings are justified or not; (b) whether the penalty is excessive or inadequate; and (c) it may pass any order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority, which imposed the punishment, or any other authority, as it may deem fit in the circumstances of the case. 20. Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alterm partem, which mandates that no one shall be condemned unheard is part of the rules of natural justice. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be does fairness in action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been held in violation of principle of natural justice the enquiry would be vitiated and the order based on such enquiry would be quashed by issuance of a writ of certiorari. It is sell settled that in such a situation, it would be open to the Disciplinary Authority to hold the enquiry afresh. That would be the normal consequence. 15. We may adopt the same approach. Keeping in view the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50 per cent of the arrears from the date of termination till the date of reinstatement. In Ranjit Thakur vs. Union of India and Ors. 1987(4) SCC 611 , it is again observed as under :- In Bhagat Ram vs. State of Himachal Pradesh, this Court held : It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowance payable up to the date of the dismissal order. In Kailash Nath Gupta vs. Enquiry Officer (R.K. Rai), Allahabad Bank and Ors. (2003 (9) SCC 480), this Court held: In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too harsh and, therefore, we set aside the order of the appellate authority to that extent and restore the punishment imposed by the disciplinary authority. Thus Mr. Ramamurthy, submitted in view of the plethora of decisions cited as above, the punishment ought not to have been enhanced without offering an opportunity of personal hearing/interview and that such an enhancement of punishment imposed without considering the adequacy or inadequacy is wholly illegal and is therefore be set aside. He further submitted that the appellant joined Bank as a clerk in the year 1963 and had to his credit 26 years of meritorious service and therefore, the bank should consider the above service and the family background and must take a lenient view in the peculiar facts and circumstances of the case and order reinstatement and also by restoring the penalty imposed by the disciplinary authority. Concluding his submissions he said that the appellate authority has gravely erred in enhancing the punishment, when it is not warranted in the facts of this case. Mr. Salve invite our attention to the pleadings and also the statement made by the appellant in Annexure P-4 at page 36 wherein he has st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. He said the appellate authority has considered the detailed representation and for the reasons recorded has reduced the penalty of dismissal to the removal. It is also his contention that the appellant has not challenged the rule 69(2) and Rule 69(5). A reading of the above rule show that the appellate authority shall give a show cause notice to the officer as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the officer and that this rule does not provide for a personal hearing or a personal interview. Mr. Salve is right in his above submissions. A reading of the show-cause notice and the final order passed by the appellate authority clearly go to show that the appellate authority has thoroughly considered the detailed submissions made by the appellant and has reached its conclusion on the facts and circumstances of the case and has modified the proposed penalty of dismissal to that of the penalty of removal. There is total application of mind on the part of the appellate authority in arriving at the conclusion in regard to punishment. Union of India and Anr. vs. Jesus Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar's, 1993 (4) SCC 727 in para 25, 26 and 28. The decisions relied on and cited above make one thing clear namely principles of natural justice cannot be reduced to any hard and fast formulae and as said in Russel v. Duke of Norfold (1949) 1 All ER 109, these principles cannot be put in a strait jacket. Their applicability depends upon the context and the facts and circumstances of each case. The objective is to ensure a fair hearing, a fair deal to a person whose rights are going to be affected. In our opinion, the approach and test adopted in Karunakar's case (supra) should govern all cases where the complaint is not that there was no hearing, no notice, no opportunity and no hearing) but one of not affording a proper hearing that is adequate or a full hearing or violation of a procedural rule or requirement governing the enquiry. On proportionately of punishment imposed, Mr. Salve cited Chairman and Managing Director, United Commercial Bank Ors. vs. P.C. Kakkar, 2003(4) SCC 364. In the above case it was observed:- In B.C. Chaturvedi vs. Union of India, 1995(6) SCC 749, it was observed : 18. A review of the above legal position would establish that the disciplin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant do not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realized the mistake later and tried to salvage the same by not encashing the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decisions. The Rule 34(3)(1) is a rule of integrity and therefore as rightly pointed out by Mr. Salve, the respondent Bank cannot afford to have the appellant as Bank Manager. The punishment of removal awarded by the Appellate Authority is just and proper in the facts and circumstances of the case. Before concluding, we may usefully rely on the judgment Regional Manager, U.P. SRTC. Etawah Ors. vs. Hoti Lal Anr. reported in 2003(3) SCC 605. Wherein this Court has held as under:- If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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