Full Text
IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO(s). 13448 OF 2015
(Arising out of S.L.P. (C) No. 9833 of 2015)
PAWAN KUMAR AGARWALA ... APPELLANT(S)
STATE BANK OF INDIA & ORS. ...RESPONDENT(S)
This appeal by special leave is filed by the appellant as he is aggrieved of the
ORDER
Gauhati High Court at Guwahati in Writ Appeal No. 192 of 2014 holding that there was no negligence on the part of the respondent (appellant herein) in disbursing the loan and he had taken appropriate steps, however, the other Manager of that Branch, who has been found guilty and levied with lesser penalty, therefore, the minor penalty would visit the respondent
(appellant herein). Accordingly, the Division Bench of the High Court modified the penalty of dismissal to one of reduction of one increment for one year and further directed the appellant to be reinstated in service with no back wages for the reason that he had already been taking pension for the period and further clarified
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Writ Appeal preferred by the Bank.
Aggrieved of the aforesaid portion of the finding and the order of penalty imposed by the
Division Bench of the High Court by setting aside the order of reinstatement with 25% back wages awarded by the learned Single Judge of the High Court in the Writ
Petition filed by the appellant questioning the correctness of the impugned judgment and order, the present appeal is filed by the appellant, urging various legal contentions.
Brief facts necessary to appreciate the rival legal contentions urged on behalf of the parties to the lis are that the disciplinary proceedings were initiated against the appellant by issuing chargesheet dated 28.10.2004 alleging that he had influenced the
Branch Manager of Hallydayganj Branch, against whom the disciplinary proceedings were initiated and upon finding him guilty, minor penalty of lesser punishment was imposed on him for being negligent in giving the loans. In the said proceedings, the appellant herein was Defence Representative of the said Manager Mr. Pradeep Kumar Das. The brief allegation contained in the chargesheet was that he had influenced the Branch
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Mondal and, therefore, he had failed to protect the interests of the Bank. The second charge was about illegal grant of cash facility. The said charges were divided into six allegations, which were extracted in the chargesheet. The said charges were denied by the appellant herein, therefore, the enquiry officer was appointed by the disciplinary authority to enquire into the allegations made against him.
The enquiry officer found that allegation Nos.
1, 2, 4 and 6 are proved, however, allegation No. 3 is partly proved and allegation No. 5 is not proved. He found that the loan application of the loanee was written by the appellant herein despite the fact that it was within his knowledge that the borrower had earlier taken loan from his Branch and even then the appellant has helped the borrower to borrow more money from the neighbouring branch without disclosing the earlier transaction with the appellant's Branch.
The disciplinary authority has taken the view that charge Nos. 3 and 5 also held to be proved from the material on record without giving an opportunity to the appellant herein to show cause as to why the finding on those charges should not be reversed. The disciplinary authority forwarded to the appellant
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In the meantime, in the disciplinary proceedings against Mr. Pradeep Kumar Das, Branch
Manager of Hallydayganj Branch, where the borrower got filled up the application through the appellant and taken the loan without disclosing the borrowing/loan from the appellant's Branch of the Bank, the disciplinary authority, after concluding the enquiry against Mr. Pradeep Kumar Das, awarded penalty of one stage lower in the time-scale for a period of one year without cumulative effect. The penalty was imposed holding that the same will not adversely affect the pension of the said delinquent Manager Mr. Pradeep
Kumar Das.
On 05.01.2006, the disciplinary authority, not accepting the reply submitted by the appellant herein, imposed the penalty of reduction of basic pay for 3 years. The Chief Vigilance Officer (“C.V.O.”) was of the view that there was extreme mala fides on the part of the appellant as he had acted against the interests of the Bank, therefore, the stiff major penalty was directed to be imposed upon him vide Order dated
01.02.2006. Accordingly, the Appointing Authority passed the Order dated 24.04.2006 for removal of the
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Appellate Authority, which came to be rejected vide
Order dated 18.11.2006 sans examining the merits of the case and considering the legal contentions urged in the memorandum of appeal. On 07.02.2007, the respondent-
Bank sanctioned pension and the appellant is drawing pension since then.
Aggrieved of the order of the dismissal which is affirmed by the Appellate Authority, the appellant herein filed a writ petition before the Gauhati High
Court in the month of March, 2009. The Bank filed its affidavit by way of reply in the said writ petition.
After hearing both the parties, the learned Single
Judge of the High Court by Order dated 04.03.2014 allowed the writ petition and granted reinstatement with all service benefits and payment of back wages to the extent of 25%. The learned Single Judge while granting such relief adverted to the rival legal contentions has recorded a finding of fact holding that there was unfairness in the enquiry as the list of witnesses and the copies of documents were not given to the appellant and the finding of the enquiry officer was held to be perverse.
The correctness of the said judgment and order of the learned Single Judge of the High Court was
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Bench of the High Court after considering the rival legal contentions substituted the order of the learned
Single Judge by imposing penalty of reduction of one increment for one year and reinstatement without back wages since he was already drawing pension. The said order passed by the Division Bench of the High Court modifying the order of the learned Single Judge is impugned in this civil appeal by the appellant, urging various legal contentions.
It is contended by Mr. Vijay Hansaria, learned senior counsel for the appellant, that the finding is recorded by the learned Single Judge in the order passed in writ petition after considering the rival legal contentions that the statutory requirements to conduct fair and reasonable enquiry, list of witnesses and copies of documents were not furnished to the appellant-officer, thereby conducting the enquiry proceedings are vitiated and the findings recorded against the appellant and the charges are perverse.
The said finding is placed on undisputed fact of non furnishing of list of witnesses and copies of documents which are the statutory requirements for conduct of disciplinary proceedings. The Division
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Judge has also referred to the judgment of this Court in the case of State Bank of India and Ors. vs. K.P.
Narayanan Kutty, (2003) 2 SCC 449, while recording such a finding holding that the finding of fact recorded by the enquiry officer that the charges are proved is perverse in law. Learned senior counsel further contended that the disciplinary authority has to follow the procedural safeguards provided under the disciplinary Regulations. Not considering the reply to the chargesheet given to the appellant herein by the disciplinary authority, the action that would be taken upon such disciplinary proceedings by recording the finding by the enquiry officer holding that the charges are proved, on the basis of evidence of the witnesses whose names were not notified to the appellant and copies of documents were not furnished to him which were relied upon by the enquiry officer, thereby the
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Service Conditions of the appellant, if the minor or major penalties are imposed, including the order of removal that is passed by the disciplinary authority.
Therefore, the learned senior counsel submitted that the Division Bench without application of mind and assigning valid and cogent reasons, not noticing the undisputed facts that list of witnesses and copies of documents were not provided to the appellant in the enquiry proceeding, it has erroneously set aside the order passed by the learned Single Judge, who has assigned valid and cogent reasons in rendering the finding of fact holding that the enquiry was not fair and the same is not in accordance with the statutory requirements of the Conduct and Disciplinary
Regulations and in compliance with the principles of natural justice. The said conclusion arrived at by the learned Single Judge is supported by the judgments of this Court rendered in a catena of cases, particularly in the case of S. A. Venkataraman vs. U.O.I. and Anr., AIR 1954 SC 375, this Court observed as follows:
“14. As the law stands at present, the only purpose, for which an enquiry under Act 37 of 1850 could be made, is to help the
Government to come to a definite conclusion regarding the misbehavior of a public servant and thus enable it to determine provisionally the punishment
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311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses. It is a matter of convenience merely and nothing else. It is against this background that we will have to examine the material provisions of the Public Servants
(Inquiries), Act of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence.”
In Union of India vs. T.R. Varma, AIR 1957 SC
882, this Court observed that if a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights.
“6. At the very outset, we have to observe that a writ petition under Art. 226 is not the appropriate proceeding for adjudication of disputes like the present. Under the law, a person whose services have been wrongfully terminated, is entitled to institute an action to vindicate his rights, and in such an action, the Court will be competent to award all the relief's to which he may be entitled, including some which would not be admissible in a writ petition.
It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in
Rashid Ahmed vs. Municipal Board, Kairana, [1950] S.C.R. 566 (AIR 1950 SC 163(A) ”the existence of an adequate legal remedy is a
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Rashid and Son vs. The Income-tax
Investigation Commission, 1954 SCR 738 at p.747: (AIR 1954 SC 207 at p. 210)(B). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. None such appears in the present case. On the other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross- examining the witnesses, who gave evidence in support of the charge.
That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit.
In this appeal, we should have ourselves adopted that course, and passed the order which the learned Judges should have passed. But we feel pressed by the fact that the order dismissing the respondent having been made on September 16, 1954, an action to set it aside would now be time-barred. As the
High Court has gone into the matter on the merits, we propose to dispose of this appeal on a consideration of the merits.
10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law. Page 11 Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.” Learned senior counsel for the appellant vehemently challenged that the appellant is also aggrieved of the non-grant of back wages by the Division Bench and setting aside the grant of 25% back wages awarded by the learned Single Judge and imposing penalty of reduction of one increment for one year. The said finding is recorded without there being any evidence on record. He contended that because pension amount does not substitute the grant of back wages, particularly in the absence of any material with the respondent-Bank, whatsoever, to deny the back wages, as he was gainfully employed from the date of dismissal and till passing of the impugned judgment and order by the learned Single Judge and the Division Bench. Further the learned Single Judge and the Division Page 12 bench have not given any reason, whatsoever, in depriving the back wages and imposing the penalty of withholding increment without there being any evidence, therefore, the same is contrary to the law laid down by this Court in a catena of cases. Per contra, Mr. Gaurav Agrawal, learned counsel appearing for the respondents, sought to justify the order passed by the Division Bench of the High Court and submitted that the correctness of the impugned judgment and order of the Division Bench is challenged on various grounds by filing a Special Leave Petition and further, alternatively, contended that, even assuming the Special Leave Petition cannot be entertained by this Court, even then the Division Bench of the High Court in exercise of its extraordinary and supervisory jurisdiction has done justice to the parties in imposing minor penalty and not granting back wages while awarding reinstatement keeping in view that the appellant has been paid the pension since 07.02.2007, therefore, he prayed for dismissal of the Civil Appeal filed by the appellant seeking for the reliefs, as stated above. We have given our thoughtful considerations to the rival contentions urged by the learned counsel for the parties to the lis and have carefully perused the materials on the record and examined the impugned Page 13 Orders passed by both the learned Single Judge and the Division Bench of the High Court. The chargesheet was issued on 28.10.2004 against the appellant making 6 allegations against him and it is undisputed fact that list of witnesses and the copies of documents were not furnished to the appellant. Further, the disciplinary authority has reversed the findings on charge Nos. 3 and 5 without giving an opportunity to the appellant to show cause in the matter and, thereafter, the order of removal was passed by the Appointing Authority on the advice of the C.V.O. vide his opinion dated 01.02.2006 and further it is brought on record that similarly placed person, namely, Mr. Pradeep Kumar Das, the Manager of Hallydayganj Branch, who has loaned the loan to one Mr. Tapan Kumar Sangma, in his case they have imposed lesser punishment of withholding one increment thereby making discrimination in differently treating with the appellant herein, which is violation of Article 14 of the Constitution of India. Further, it is brought to our notice by Mr. Vijay Hansaria, learned senior counsel for the appellant that the loan amount lent by Mr. Pradeep Kumas Das, the Manager of Hallydayganj Branch, the same has been cleared by Mr. Tapan Kumar Sangma with interest by paying Rs. 1,61,000/-. The overdraft is beyond the permissible limit is held to be Page 14 not proved. The finding of the learned Single Judge while examining the entire enquiry report, on which strong reliance is placed by the respondent-Bank, the learned Single Judge in exercise of his extraordinary and Original Jurisdiction examined the case on merits and referred to Rule 68(1)(IX)(a) of the State Bank of India Service Rules, wherein it mandates the disciplinary authority to furnish the delinquent the list of documents through which the charges are proposed to be proved. It is the case of the appellant that such a list of witnesses and copies of documents were not furnished either by the disciplinary authority or the enquiry officer which are vital aspects of the case, based on which the finding is recorded on the charges by the enquiry officer, referred to supra, holding that the same are proved against the appellant. Further, with regard to lending of loan in favour of Mr. Tapan Kumar Sangma, the learned Single Judge examined and recorded the finding of fact stating that a sum of Rs. 2,13,595 was recovered from the said loanee and it is stated that the Power of Attorney furnished by Abdul Kuddus Mondal was never utilized to recover the balance loan due of Rs. 15,450/-, which will not be the negligence on the part of the appellant, however, it will be negligence of those responsible for loan recovery, a small unpaid Page 15 amount had to be written off by the Bank. Further, with reference to the opinion/report Exhibit D-4 furnished in support of the disbursement of the loan clearly disclosed the previous loans of the borrowers from the Phulbari Branch but surprisingly neither the enquiry officer nor the disciplinary authority or the C.V.O. had taken note of the said opinion/report, which establishes the bona fide of the appellant's action in rendering assistance to his neighbouring Branch Manager to meet the target for disbursal of contract finance by the Hallydayganj Branch Manager. Upon the contention urged on behalf of the appellant that taking multiple loans is not prohibited in the S.B.I. and contract finance were sanctioned for the 2 borrowers by the Hallydayganj Branch Manager with full knowledge of the previous loans taken by them from the Phulbari Branch, the learned Single Judge has referred to non-furnishing of the control return file of the Branch as well as the Bank's Ledger sheets of the J.N. High School account and Mr. Tapan Kumar Sangma accounts to the appellant at the time of conducting enquiry on the charges to defend the case by the appellant effectively, the same was projected as cause for serious prejudice to the case of the appellant as the said documents established that the borrowers had availed similar overdraft facility earlier and, in any case, this was Page 16 within the permissible discretionary capacity of the Manager of the Phulbari Branch. The learned Single Judge on the basis of reliance placed by the appellants's counsel upon the decision of this Court in the case of State Bank of India & Ors. vs. K.P. Narayanan Kutty, (supra), wherein it has been held the the non compliance of the statutory requirements as per the aforesaid rules, the action of the disciplinary authority is inconsistent with the principles of natural justice and the settled principles of service jurisprudence. In the said case, while concurring with the decision of this Court in the case of Punjab National Bank vs. Kunj, (1998) 7 SCC 84, para 19 was quoted, which reads as follows: