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TMI Blog2004 (11) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... eted 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 reduction in substantive salary at one stage from Rs. 4020 to Rs. 3900 in the terms of Rule 49(e) of the Rules. The Punishing Authority who was the appointing Authority of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Punjab Tourism Development Corporation Ltd. & Anr. 2003 (8) SCC 9 7. State of Madras Vs. Gopala Iyer AIR 1963 Madras 14 8. Kailash Nath Gupta vs. Enquiry Officer (R.K. Rai) Allahabad Bank and Ors., 2003 (9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 (Supervising Staff) Services Rules." Since the Appellate Authority had considered charge No. 1 also while proposing to enhance punishment, we extract herein below charge No.1:- "You while working as Branch Manager, Konkan Bhavan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hearing to the appellant before the enhancement of the punishment. Mr. Ramamurthy submitted that personal interview was not given to the appellant though it has been expressly asked for in his reply to the proposal for the enhancemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice 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. Removal from service would enable him to draw higher terminal benefits as compared to dismissal. The removal will take effect from the date of communication of this order and the intervening period will be treated as under suspension. I ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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 demand that an opportunity to be heard should be given to the person affected? The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legal limits." In Dev Singh vs. Punjab Tourism Development Corporation Ltd. and Anr. 2003 (8) SCC 9, this Court held: "Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 irregularity or misconduct of the appellant except the charges which were the subject-matter of his removal from service. The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stated that the total amount which was to be reimbursed to the appellant aggregated to 6,000/- and there was no response to personal or official requests and that since he had no money to pay income-tax as per the instructions he debited the suspense account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sales Corporation (1996(4) SCC 69). The above judgment was cited for the proposition as to taking into consideration the facts and circumstances of each case to exercise discretion. and that it does not flow from the rule that before exercising such discretion the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or grav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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 financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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