JUDGMENT
M.L. Pendse J.
1. This litigation has a chequered career and it is necessary to set out the fats to appreciate the four contentions urged at the hearing to challenge the order dated August 9, 1989 passed by Chief General Manager – Disciplinary Authority imposing punishment of dismissal from Service on the petitioner in accordance with Rule 49(h) of the State Bank of India (Supervising Staff) Service Rules.
The petitioner joined the services of the State Bank of India as a Clerk on February 24, 1954. In July 1965, the petitioner was promoted to the post of Head Clerk and on August 2, 1965, as Officer Grade II. On June 1, 1971, the petitioner was appointed to the post of Officer Grade I on probation. The appointment letter sets out that the appointment is made in pursuance of the decision taken by the Executive Committee of the Central Board on the recommendation of the local Board. Between December 1972 and March 1973, the petitioner was posted as a Branch Manager of the Shahapur Branch of State Bank of India. The Branch had extended facility of discounting of cheque to M/s. Jolly Brothers (P) Limited who had undertaken contract work in respect of construction of Bhatsa Dam from State of Maharashtra. The State Bank of India had initially sanctioned facility to the limit of Rs. 3,00,000/- and subsequently the facility was raised to Rs. 10 lakhs. The petitioner who was working as Branch Manage at Shahapur Branch could not have permitted M/s. Jolly Brothers (P) Limited to draw upon the facility in excess of limit of Rs. 10 lakhs. The Bank authorities came to know that the petitioner had discounted cheques in excess of the sanctioned limit and the payments of the earlier discounted cheques were not received from M/s. Jolly Brothers (P) Limited. The enquiries also revealed that M/s. Jolly Brothers (P) Limited had no fund in their accounts to meet the payments of the cheques discounted by the petitioner.
2. By letter dated January 20, 1973, the Head Office of the State Bank of India specifically prohibited the petitioner from purchase of cheque in excess of the amount of Rs. 10 lakhs. The Head Office also called upon the petitioner to forward advice every fortnight indicating the outstanding under the limit. The petitioner did not forward the information and render was sent on February 13, 1973. The petitioner sent reply on February 22, 1973 stating that the list of purchases made from M/s. Jolly Brothers (P) Limited is annexed to the letter. Infact, the petitioner did not enclose any annexures and subsequently claimed that the annexures were not enclosed due to heavy pressure of work. On March 3, 1973, the Head Office of the Bank informed the petitioner to stop any further purchases to the cheques till the account of M/s. Jolly Brothers was regularised. Despite the telegram, the petitioner purchased the cheque of M/s. Jolly Brother of an amount to Rs. 48,30,000/- on March 8, 1973 and for the sum of Rs. 48,72,000/- on March 13, 1973. It is not in dispute that the cheque dated March 13, 1973 was dishonoured.
On March 28, 1973, the Bank authorities served an order of suspension on the petitioner. The Chief Vigilance Officer of the Bank along with other Offices proceeded to Shahapur and conducted investigation between April 5 and April 14, 1973. The petitioner was questioned and statements were recorded. On April 15, 1973 which was a Sunday, the petitioner went to the residence of one of the vigilance Offices and gave in writing that the petitioner had received a television set of Toshiba Made as a present from M/s. Jolly Brothers. The petitioner also accepted that the payment of Rs. 3,100/- was received for clearance of the cheque. A further payment of Rs. 2,000/- in cash was admitted and so also a sum of Rs. 500/- from the constituent of the Bank. It is required to be stated at this juncture that subsequently the petitioner claimed that the letter was secured under duress because the petitioner was in an imbalanced state of mind.
3. On July 17, 1973, the petitioner was served with a charge-sheet containing four charges. The charges were :
(1) Connivance with M/s. Jolly Brothers to permit discounting of the cheques in excess of the sanctioned limit.
(2) Accepting gift of a Toshiba Television set and cash amount of Rs. 2,000/- from M/s. Jolly Brothers in contravention of Rule 40 of State Bank of India (Officer and Assistants) Service Rules.
(3) Accepting personal gratification of Rs. 500/- for recommending a loan of Rs. 10,000/- to Prabhakar Balkrishna Joshi, and
(4) lending money in personal capacity to a borrower of the Bank in contravention of provisions of Rule 45(iv) of the State Bank of India (Offices & Assistants) Service Rules.
The petitioner sent his reply on July 26 1973 and the principal defence was that the cheques were purchased from M/s. Jolly Brothers with the knowledge of the Head Office and at the oral instructions of the area Superintendent and the Regional Manager of the State Bank of India.
After receipt of the reply, the petitioner was served with show cause notice dated October 22, 1973 informing that the local Board of the Bank had tentatively decided to impose the punishment of dismissal from service and the petitioner should show cause as to why the penalty should not be imposed. The petitioner was furnished with copies of the report of the Investigating Officer and the other material. The petitioner forwarded his reply by letter dated October 31, 1973 Thereafter the Executive Committee of the Central Board of the State Bank of India resolved that the petitioner should be dismissed from service with immediate effect. The petitioner carried an appeal to the chairman of the Bank but without any success.
4. The petitioner then field Miscellaneous Petition No. 1594 of 1976 under Article 226 of the Constitution of India before Single Judge of this Court to challenge the order of dismissal The petition was heard by Mr. Justice Sawant, she then was, and by judgment dated September 4, 1979, the learned Judge set aside the order of dismissal by making it clear that the order is set aside because of the breach of the provisions of certain Rules and not on merits. The learned judge directed that as the order is set aside on the point of breach of the provisions of sub-rule (3) and the consequent failure to observe the principles of natural justice, it would be just and proper to declare that the effect of setting aside of the order will not be an automatic reinstatement of the delinquent in service. The learned Single Judge noticed that the enquiry had commenced under the Service rules which were in force in year 1955 but subsequently, the Service Rules were substituted by New Rules known as the State Bank of India (Supervising Staff) Service Rules and which came into effect from July 1, 1975. The learned Judge directed that the disciplinary Authority should proceed with the enquiry from the stage where the written statements were field by the delinquent and keep the employee under suspension during the pendency of the enquiry. The perusal of the judgment of the learned Judge makes it clear that the enquiry was to be conducted dune the New Rules. In pursuance of the decision of this Court, the State Bank of India proceeded with the enquiry and Shri B. A. Junnarkar, Branch Manager, was appointed as an Enquiry Officer. Before the Enquiry Officer, oral evidence was led of various witnesses. The petitioner sought appointment of a lawyer to defend at the enquiry but that application was turned down. The petitioner made application before the Enquiry Officer to summon certain senior Officers for cross-examination but that request was also turned down. The Enquiry Officer completed the enquiry and submitted report dated March 26, 1981. The Enquiry Officer held that Charge No. 1 was proved. The Enquiry Officer exonerated the delinquent in respect of the remaining charges. The Chief General Manager by order dated July 24, 1981 held that charges Nos. 1, 2 and 3 are proved. The Chief General Manager wrote a detailed order setting out the reasons for differing with the recommendations made by the enquiry Officer On the basis of the conclusions reached, the Chief General Manager passed an order dismissing the petitioner from service.
5. The order passed by the Chief General Manager on July 24, 1981 was again challenged by the petitioner by filling Writ Petition No. 1668 of 1981 under Article 226 of the Constitution of India before the learned Single Judge of this Court. The petition was heard by Justice Mrs. Sujata Manohar and by a detailed judgment dated December 6, 1983, the petition was dismissed. The learned Judge held that the grievance of the delinquent that the order of dismissal was passed by an authority which was not the appointing authority is without any merit.
The learned Judge also considered the impact of the New Rules of year 1975 coming into force. The learned Single Judge held that the challenge to the procedure followed at the enquiry was without any merit and, in any event, no prejudice whatsoever was caused to the delinquent. On the strength of these findings, the petition came to be dismissed. The petitioner challenged the decision of the learned Single Judge by filing Appeal No. 848 of 1984 before division Bench of it is Court. Mr. Justice Bharucha, as he then was, speaking for the Bench came to the conclusion that various submission urged before the learned Single Judge and reiterate before the Appellate Court were without any substance. The Division Bench observed that in respect of the submission urged by the delinquent, the division Bench is inclined to agree with the learned Single Judge. The Division Bench then found that there was one submission which requires acceptance. The grievance made by the delinquent was that the petitioner was not supplied with the written brief that was submitted by the Presenting Office after the evidence was concluded. The Division Bench held that it was incumbent upon the Presenting Officer to supply copy of the written brief to the delinquent and it was not appropriate on the part of the Enquiry Officer to rely upon the contents of the written brief without opportunity to the delinquent to meet the assertions in the brief. The Division Bench thereupon allowed the appeal and set aside the order of dismissal passed by the Chief General Manager on July 24, 1981 but directed that the disciplinary Authority may continue to proceed afresh from the stage of exchange of written briefs. The Division Bench made it clear that the delinquent should be kept under suspension notwithstanding that the order of dismissal has been set aside. The Division Bench then specifically observed that the Disciplinary Authority in regard to the enquiry against the delinquent shall be the Chief General Manager.
6. In pursuance of the decision of the Division Bench, the petitioner was informed on August 19, 1987 that the enquiry was continued from the stage of exchanging of written briefs. The delinquent was informed that the enquiry would commence on November 10, 1987. On November 10, 1987, the delinquent failed to attend the enquiry but attended the next date of hearing on January 24, 1988 under protest. The delinquent claimed that as the Bank had not paid the subsistence allowance, the holding of the enquiry is illegal. The delinquent then submitted his written brief on June 17, 1988. The Enquiry Officer submitted the report on December 29, 1988 holding the delinquent guilty of Charge No. 1. The Chief General Manger in pursuance of the order of the Division Bench being Disciplinary Authority, passed the order of dismissal on August 9, 1989 and that order is under challenge in this petition field under Article 226 of the Constitution of India.
7. Shri Singhvi, learned counsel appearing on behalf of the delinquent, raised four contentions to challenge the validity of the order of dismissal. The first submission of the learned counsel is that as the enquiry is started by service of charge-sheet dated July 17, 1973, the procedure should be one under the Rules of year 1955 and it was wrong on the part of the Enquiry Officer and the Disciplinary Authority to pass orders in pursuance of 1975 rules. The second contention of the learned counsel is that the Chief General Manager was not competent to pass order of dismissal of the petitioner. It was claimed that the petitioner was appointed by Executive Committee under 1955 Rules and the Chief General Manager not being the Appointing Authority could not exercise powers as Disciplinary Authority. The third contention urged by the learned counsel is that the documents sought by the petitioner by letter dated August 20, 1987 were not furnished and that has caused serious prejudice to the interest of the petitioner and consequently the enquiry and the order of dismissal should be set aside. The last submission urged in support of the petitioner is that the delinquent was not paid subsistance allowance till year 1989 and consequently that affected the delinquent from preparation of his defence and, therefore, it should be concluded that the enquiry was vitiated. We are not impressed by any of the submission urged in support of the contention that the enquiry was vitiated or the authority was not competent to pass order of dismissal.
8. The first submission that the enquiry should have been continued under 1955 Rules and not under the New Rules of 1975 cannot be accepted for more than one reason. In the first instance, 1975 Rules came into force with effect from July 1, 1975. These Rules do not provide for saving of any enquiry which was pending under 1955 Rules and which is required to be concluded under 1955 Rules. Once, 1975 Rules come into force, then automatically the earlier Rules come to an end. Shri Singhvi did not dispute that all the enquiries which are pending on July 1, 1975 were conducted and concluded under the 1975 Rules. Secondly, identical contention was raised before the learned Single Judge in Writ petition No. 1668 of 1981 and was turned down. It is not open to reiterate the said contention when the finding of the learned Single Judge on this aspect was upheld by Division Bench in Appeal No. 848 of 1984. Thirdly, the claim of Shri Singhvi that clause 15 of 1955 Rules is attracted and, therefore, it was incumbent upon the Disciplinary. Authority to serve a second show cause notice to give an opportunity to the delinquent to explain why the penalty of dismissal should not be imposed cannot be accepted. The question of service of second show cause notice did not arise under 1975 Rules and consequently, merely because second show cause notice was given earlier cannot entitle the delinquent to claim that the proceedings resulting into the order of dismissal were invalid for non-service of second show cause notice. In our judgment, the contention that Rules of 1955 which are superceded by Rules of 1975 will continue to govern the enquiry against the delinquent is devoid of any merit.
9. The second contention of Shri Singhvi is that the Chief General Manager was not the Appointing Authority and consequently cannot be the Disciplinary Authority having power to remove the delinquent from serve. The learned counsel urged, with reference to the appointment letter dated July 16, 1971, that the delinquent was appointed by the Executive Committee of the Central Board in accordance with Rules of year 1955. The learned counsel urge that though the Rules of year 1975 provide that the Chief General Manager is the Appointing Authority, that will not confer power on Chief General Manager to dismiss the petitioner from service. We are unable to find any substance in this contention. In the first instance, in the decision delivered by Division Bench of this Court in Appeal No. 848 of 1984, it was specifically clarified that the Disciplinary Authority in regard to the enquiry against the delinquent shall be the Chief General Manager. The decision of the Division Bench was become final and it is not open for the delinquent to claim that the Chief General Manager is not the Appointing Authority. Secondly, an identical contention was urged before the Supreme Court in the judgment State Bank of India v. S. Vijaya Kumar and was turned down. The Supreme Court observed that the order of dismissal which was passed by the Chief General Manager long after the amendment of the Rules cannot be questioned on the ground that the Chief General Manager was not the Appointing Authority. The complaint that the employee was appointed by the Executive Committee but was dismissed by the Chief General Manager and that was illegal was thus negatived. In our judgment, once New 1975 Rules came into force and which specifically provide that the Chief General Manager is Appointing Authority, then it is futile to claim that the competent authority is not the chief General Manager but the Executive Committee.
10. The third submission urged by the learned counsel is that the document sought by the delinquent by letter dated August 20, 1987 addressed to the Chief General Manager were not furnished and consequently, the delinquent was denied the opportunity to defend the charges. There is no merit whatsoever in this contention. As pointed out hereinabove, the Division Bench While deciding Appeal No. 848 of 1984 specifically provided that the enquiry should proceed only from the stage of exchanging written briefs of arguments before the Enquiry Officer. The Division Bench made it clear that there was no defect whatsoever in the conduct of the holding of the enquiry by the Enquiry Officer and the only flaw was that the written brief of the Presenting Officer was not furnished to the delinquent. In view of the judgment of the Division Bench, the stage of leading evidence was already over and could not have been re-opened. Inspite of this clear-out provision, the delinquent addressed a letter to the Chief General Manager and claimed :
During 1980-81 Enquiry, several documents of important nature, were not made available to me by Bank. They were reported missing, not traceable, never produced before enquiry and reported lost. Bank must produce all the documents required in Enquiry and called to me for evidence and cross-examining the person.”
In answer to the letter, the delinquent was informed on September 14, 1987 that the stage of leading evidence was over long before and as such production of documents or witnesses before the Enquiry Officer was not required in accordance with the direction of the Court. Shri Singhvi did not dispute that the stage of leading evidence was over but urged that the documents set out in the letter written by the delinquent were very crucial to establish the defence. The defence, according to the learned counsel, was that the limits of the facility granted by the State Bank of India was exceeded on oral request by Superior Officer. The learned counsel conceded that initially the Bank had informed the delinquent that the document sought were not traceable but submitted that the Bank should have made efforts to trace the documents and furnish to the delinquent. We are unable to accede to the submission that the documents claimed in the letter were crucial documents. The documents sought were :
(a) A memorandum in original prepared by Regional Manager to the higher authorities of the Bank.
(b) Correspondence exchanged between the Regional Manager and the Advance Department.
(c) Letters addressed by the Regional Manager seeking opinion about the credibility of M/s. Jolly Brothers.
(d) Officer copy of the telegram sent by the Regional Manager.
(e) Letter sent during January 1987 under heading ‘Budget’, and
(f) Budget for year 1973 prepared for approval of the Administrative Officer and the Regional Manager.
In our judgment, none of these documents were at all relevant and even the delinquent thought it to be so. It is necessary to point out that when on earlier occasion, the delinquent had filed Writ Petition No. 1668 of 1981 and which was after the entire evidence was led, no complaint whatsoever was made either before the learned Single Judge or before the Division Bench about the non-supply of these documents. It is obvious that only after the Division Bench passed the order that the enquiry should proceed further from the stage of arguments, the delinquent though of raising fresh contentions only with a view to postpone that enquiry. The delinquent deliberately did not address any letter to the Enquiry Officer but only to the Disciplinary Authority. The Disciplinary Authority obviously could not have issued any instructions to the Enquiry Officer in face of the judgment of the Division Bench of this Court. In our judgment, the contention that the documents were not supplied and, therefore, the enquiry was vitiated is nothing but an after-thought and cannot be entertained at this late stage.
11. The last contention urged by Shri Singhvi is that the subsistance allowance was not paid to the delinquent and that has prevented the delinquent from preparation of defence. The learned counsel urged that failure to pay subsistance allowance is fatal to the enquiry and reliance is placed upon the decision Fakirbhai Fulabhai Solanki v. Presiding Officer and another. We are unable to find any merit in the contention. It is not in dispute that subsistance allowance was infact paid prior to the order of dismissal. Shri Singhvi was unable to point out how the delinquent was unable to prepare his defence. On the other hand, the record clearly indicates that the delinquent was well advised by legal experts and was raising each and every permissible contention during the enquiry. Even after the Division Bench of this Court directed the enquiry to proceed further from the stage of argument, the delinquent had addressed letters. That clearly establishes that the delinquent who was a Senior Officer in the Bank was not prevented from preparation of defence. The reliance upon the decision of the Supreme Court is not correct because the observations were made by the Supreme Court in a case of small employee who was deprived of the wages, and who could not defend before the Industrial Court. The comparison of such an employee with a delinquent is totally unrealistic. In our judgment, the contentions urged by the learned counsel in support of the petition are without any substance and the order of dismissal does not suffer from any infirmity.
12. Accordingly, petition fails and rule is discharged with costs.