Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ...

on 25 January, 2017

Bombay High Court

Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ... on 25 January, 2017
Bench: V.A. Naik
wp3450.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO.3450/2009

PETITIONER: Sham s/o Balwantrao Joshi,

Aged 57 years, Occu. Presently Nil,
R/o Plot No.36, Shankar Nagar, Pusad,
Dist. Yeotmal.

...VERSUS...

RESPONDENTS : 1. State Bank of India

Through its General Manager (Network III)
Vigilance Department, "Synergy",
Plot No.C-6, G-Block, Bandra-Kurla
Complex, Bandra (East)
Mumbai - 400051.

2. State Bank of India

Through its Chief General Manager,
"Synergy" Plot No.C-6, G-Block, Bandra-
Kurla Complex, Bandra (East),
Mumbai - 400051.

------------------------------------------------------------------------------------------
Shri B.G. Kulkkarni, Advocate for petitioner
Ms Priyanka Verma, Adv. h/f Shri S.N. Kumar, Adv. for respondents
------------------------------------------------------------------------------------------

CORAM : SMT. VASANTI A NAIK, AND

V.M. DESHPANDE, JJ.

DATE : 25.01.2017 ORAL JUDGMENT (PER : V.M. DESHPANDE, J.)

1. The present writ petition is directed against the order passed by the respondent no.1, dated
29.1.2009 by which the petitioner was dismissed from service in terms of Rule 67 (j) of the State
Bank of India wp3450.09.odt Officers Service Rules together with the order passed by the
respondent no.2 - the Appellate Authority, dated 21.4.2009 by which the statutory appeal filed on
behalf of the petitioner was also dismissed.

2. We have heard Shri B.G. Kulkarni, the learned Counsel for the petitioner and Ms Priyanka Verma,
the learned Counsel holding for Shri S.N. Kumar, the learned Counsel for the respondents.

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 Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ... on 25 January, 2017

3. During the course of the submissions before the Court, the only point that was urged on behalf of
the petitioner was that the order of punishment, i.e., the dismissal from service is disproportionate
to the misconducts which were alleged and which were proved during the course of the domestic
enquiry. The learned Counsel for the petitioner submitted that looking to the long service and the
nature of the imputations which he faced during the course of the domestic enquiry, the petitioner
deserves lesser punishment and therefore, he prayed that the writ petition be allowed to that extent.

Per contra, the learned Counsel for the respondent - Bank submitted that no interference is required
from this Court looking to the nature of charges and prayed for dismissal of the writ petition.

4. The petitioner joined the respondent - State Bank of India in the year 1977 as an Officer. He was
promoted as an Officer in M.M. Grade

- II (Middle Management Grade) and was incharge of ADB Branch, wp3450.09.odt Dhamangaon
(Railway). The petitioner was served with a memorandum on 17.3.2008 by which it was stated that
while working as a Field Officer from 29.10.2003 to 16.4.2005 and an Officiating Branch Manager
from 11.7.2005 to 6.1.2007 at ADB Dhamangaon Branch, he committed following serious
irregularities in violation of Bank's laid down instructions and also a corrigendum to charge-sheet
was issued against the petitioner, which was also duly replied by him :-

"1. On 24.03.2005 a request letter from Adivasi Mahila Bachat Gat, Anjangaon for
Rs.5,000/- was altered by Shri S.B. Joshi to Rs.58,000/- and withdrawn cash from
their S.B. A/c. No.1170030017 by altering ATL account No.015720317 on presigned
S.B. withdrawal form of Bachat Gat. This amount of Rs.58,000/- was not handed
over to Bachat Gat.

2. On 13.01.2007 Shri Joshi fraudulently reversed the above entry of Rs.58,000/- by

raising debit to office account No.01070065126 styled as 'Relief measure o/a Prime
Minister's Package A/c. by preparing voucher in his own handwriting and posting the
same under fictitious ID 'LHI' resembling to ID of Shri L.H. Thamke, Field Officer,
whose regular ID is 'LHT'. He authorized this fraudulent transaction under his own
ID 'SBJ'.

3. On 12th March 2005 Shri S.B. Joshi availed consumer loan for Rs.20,000/-. The
amount was wp3450.09.odt credited to Cash Credit A/c. of M/s. Suresh Electrical
and Electronics. On the same day self bearer cheque drawn by M/s. Suresh Electrical
and Electronics was deposited in S.B. Joshi's current account No.01090094023.

4. While taking over cash credit a/c. of M/s. Shetki Bhandar from Khamgaon Urban
Co-op. Bank and enhancing the limit from Rs.2.50 lacs to Rs.5.00 lacs, the following
serious lapses are observed.

a) Outstanding dues of Khamgaon Urban Co-op. Bank were not paid directly by
obtaining latest account statement. Resultantly loan obtained from Khamgaon Co-op.

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 Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ... on 25 January, 2017

Bank is still outstanding, which resulted in multiple borrowing.

b) Opinion report from Khamgaon Urban Co-op. Bank was not obtained before
disbursement of loan.

c) Major portion of the limit was disbursed in cash thereby not ensuring end use of
funds.

d) All initial debits on account of disbursement of limit are posted by Shri Joshi
under fictitious ID of SB2 (user: Shyam).

e) The above serious lapses led to the unit becoming NPA with outstanding of Rs.5.58
lacs.

wp3450.09.odt

5. Shri Joshi Fraudulently passed on benefits of interest relief under Prime Minister's
package to following non-eligible borrowers including staff members.

Date A/c. No. Name Amount

15.11.2006 01660075037 IT enabled services 9,550/-

21.11.2006 -"- -"- 6,800/-

20.11.2006 01660075180 Savalkar Auto Parts 78,065/-

14.11.2006 01660075037 Omkar Plywood 5,022/-
Services
23.11.2006 01050070005 Uptech Royalty 5,800/-
21.11.2006 01670033462 Swapnil Gawande 40,000/-
15.11.2006 01670033029 Turabshan 33,029/-
Gulabshan
15.11.2006 01670032775 S.B. Thakare 32,775/-
15.11.2006 01190094065 Manoj Diwate 500/-

All these entries were posted under ID of SBJ (which is ID of Shri S.B. Joshi)

6. Shri Joshi unauthorisedly enhanced the sanctioned overdraft limit of Rs.4.50 lacs
to 5.00 lacs on 25.11.2006 and utilized the limit for his benefit. The limit was restored
to original sanction amount of Rs.4.50 lacs on 27.12.2006. There is no sanction of
Competent Authority on record.

7. Shri Joshi has created false login IDs as SB1, SB2, SB3, LH1 etc. to put through
various entries in the past and for the above mentioned transactions, in violation of
Bank's instructions of creating/using only one ID."

wp3450.09.odt

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 Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ... on 25 January, 2017

5. The petitioner, on 26.4.2008 submitted his detailed reply to the charge-sheet,

thereby he denied the charges levelled against him.

6. As per Rules, the Disciplinary Authority vide letter dated 21.4.2008 appointed Shri S.G. Divekar
as an Enquiry Officer. The Presenting Officer on behalf of the Bank was of a rank of Officer SMGS -
IV. The petitioner was also represented by a defence representative who was also an Officer of rank
of SMGS-IV.

7. The preliminary hearing of the domestic enquiry was held on 16.5.2008, 12.6.2008 and
26.8.2008. As decided in the preliminary hearing, dated 26.8.2008, the petitioner submitted the
documents along with the list and also the list of defence witnesses.

During the course of domestic enquiry, the petitioner was given all reasonable opportunity to defend
his case. All relevant defence documents were also allowed and made available to him for his
defence.

8. After a full-fledged departmental enquiry in which the petitioner actively participated and was
also defended through is defence representative and in an enquiry, in which the principles of natural
justice were strictly followed, the Enquiry Officer found that Charge No.4 (e) was not proved and
Charge No.5 was partly proved. The Enquiry Officer after a detailed discussions of the evidence, as
brought before him, recorded a finding that other charges were duly proved by the Management.

wp3450.09.odt

9. The copy of the enquiry report was served upon the petitioner and was asked to furnish his reply.
The opportunity was availed of by the petitioner.

10. The Disciplinary Authority after considering the nature of charges, the findings of the Enquiry
Officer and the defence brief of the petitioner reached to the conclusion that the penalty of
"dismissal" in terms of Rule 67 (j) of the State Bank of India Officers Service Rules is required to be
inflicted on the petitioner. Accordingly, the order dated 29.1.2009 was handed down to the
petitioner.

11. The petitioner thereafter availed the opportunity of preferring the appeal before the Appellate
Authority. The Appellate Authority vide order, dated 21.4.2009 considered the case of the petitioner
in the light of the enquiry proceedings and also in the light of detailed order of dismissal and
thereafter reached to the conclusion that the irregularities committed by the petitioner are serious in
nature and therefore, recorded the finding that there is no reason to modify the order of punishment
as imposed upon the petitioner by the Disciplinary Authority dismissing the appeal.

12. After having gone through the charges and the copy of the enquiry report, which is enclosed
along with the petition there is no doubt in our mind that the petitioner was guilty of committing
serious wp3450.09.odt irregularities and misdeeds. We observe that the principles of natural justice
were strictly followed by the Enquiry Officer during the course of the enquiry. Even before this

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 Sham S/O Balwantrao Joshi vs State Bank Of India, Thr Its ... on 25 January, 2017

Court, it was not the submission of the learned Counsel for the petitioner that the enquiry stands
vitiated due to the non-observance of the principles of natural justice.

It is well settled that in the matter of disciplinary proceedings, the High Court should exercise its
limited power.

13. When the misconduct of a delinquent stood proved by the evidence and material on record, it is
not open to the Court to substitute the said findings by its own. When a finding of fact is recorded in
enquiry, it should not be interfered with, unless such finding is based on "no evidence" or is
perverse. In the present case, it is not the case of the petitioner that there was no evidence during
the course of the evidence. What is submitted is that the order of punishment is disproportionate to
the charges.

14. It would be useful to reproduce herein below the law laid down by the Hon'ble Apex Court in the
case of State of Uttar Pradesh and another...Versus...Man Mohan Nath Sinha and another, reported
in (2009) 8 SCC 310 :-

"15. The legal position is well settled that the power of judicial review is not directed
against the decision but is confined to the decision-making process. The court does
wp3450.09.odt not sit in judgment on merits of the decision. It is not open to the
High Court to reappreciate and reappraise the evidence led before the inquiry officer
and examine the findings recorded by the inquiry officer as a court of appeal and
reach its own conclusions. In the instant case, the High Court fell into grave error in
scanning the evidence as if it was a court of appeal. The approach of the High Court
in consideration of the matter suffers from manifest error and, in our thoughtful
consideration, the matter requires fresh consideration by the High Court in
accordance with law. On this short ground, we send the matter back to the High
Court."

15. From the aforesaid law, as laid down by the Hon'ble Apex Court, it is clear that the power of
judicial review is not directed against the decision but is confined to the decision-making process.

16. In the present case, before initiation of the departmental enquiry, a show-cause-notice was
served upon the petitioner which was duly replied by him. An Enquiry Officer was appointed, in
which full opportunity was given to the petitioner to defend himself. From the charges as could be
noticed, which were reproduced in the preceding paragraphs, it is clear that the charges were well
articulated and defined. Those were not vague charges. Therefore, at the time of issuance of
charge-sheet itself, the petitioner was duly aware as to what he has to face during the course of
disciplinary proceedings.

wp3450.09.odt

17. After giving full opportunity, the Enquiry Officer, in a very detailed and elaborate enquiry report,
found that all the charges except one was proved and remaining one was partly proved. An

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opportunity was also given to the petitioner to make his submissions in respect of the findings of
fact recorded by the Enqiry Officer by supplying the copy of enquiry report. The said opportunity
was also availed of by the petitioner. Thereafter, the Disciplinary Authority independently
considered the material placed before it including the copy of charge-sheet, the reply of the
petitioner, the enquiry report and his submissions and reached to the conclusion that the
punishment of dismissal is appropriate punishment. Thus, the decision arrived at by the
Disciplinary Authority and by the Appellate Authority is reached after considering all material
placed before it. The Authorities minutely perused the other material before reaching to the
respective conclusions. Therefore, no fault could be attributed in a decision-making process.

18. We cannot forget that the petitioner was not only a Field Officer but also was incharge of a
Branch. In discharging his duties as an Officiating Branch Manager, a Bank Officer is required to
exercise higher standards of honesty and integrity. He deals with the money of the depositors and
the customers. It would be useful to refer the following paragraph of the verdict given by the Hon'ble
Apex Court in the case of wp3450.09.odt Chairman and Managing Director, United Commercial
Bank and Others...Versus...P.C. Kakkar, reported in (2003) 4 SCC 364 :-

"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 V. 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."

19. In the present case, looking to the nature of the charges, it is clear that the petitioner was found
to be guilty of very serious charges. In wp3450.09.odt that view of the matter, we find ourselves in
disagreement with the submission of the learned Counsel for the petitioner that this is a case
wherein the order of dismissal is disproportionate. The upshot of the aforesaid discussion leads us
to pass the following order :-

ORDER The writ petition is dismissed. However there shall be no order as to costs. Rule stands
discharged.

JUDGE JUDGE

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Wadkar

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