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SUPREME COURT OF INDIA
V. GOPALA GOWDA, AMITAVA ROY, JJ.
PAWAN KUMAR AGARWALA – APPELLANTS
VERSUS
GENERAL MANAGER-II & APPOINTING AUTH. STATE BANK OF INDIA & ORS. – RESPONDENTS
CIVIL APPEAL NO(s). 13448 OF 2015 (Arising out of S.L.P. (C) No. 9833 of 2015)
Decided On : 17-11-2015
(2003) 2 SCC 449; AIR 1954 SC 375; AIR 1957 SC 882; (1998) 7 SCC 84; 359 U.S. 535 (1959); (1979) 3 SCC 489 – Referred
(b) Service law – Disciplinary proceedings – Disciplinary authority seeking, obtaining and acting on advice of CVO as regards quantum of punishment – Not permissible. (Para 20)
(2013) 10 SCC 324 – Referred
(c) Service law – Punishment – Similarly situated another Manager let off lightly with stoppage of increment by delinquent appellant removed from service – Punishment vitiated being discriminatory. (Para 20)
(d) Service law – Disciplinary proceeding – Constitution of India – Article 226 – Judicial review – High Court ordering reinstatement but without back wages on ground that delinquent was getting pension – Denial of Back wages without evidence not justified – In the facts of the case, full back ought to be granted and pension paid recovered therefrom. (Para 20)
Facts of the case:
Disciplinary proceedings were initiated against the appellant alleging that he had influenced the Branch Manager of Hallydayganj Branch to sanction cash credit facility sans disclosing earlier loan of Abdul Kuddus 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 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.
The disciplinary authority held charge Nos. 3 and 5 also to be proved from the material on record without giving an opportunity to the appellant to show cause as to why the finding on those charges should not be reversed.
The disciplinary authority imposed the penalty of reduction of basic pay for 3 years. However, the Chief Vigilance Officer directed stiff major penalty to be imposed upon him.
Accordingly, the Appointing Authority passed the Order for removal of the appellant from service.
Appellant filed a writ petition before the High Court. The Single Judge of the High Court allowed the writ petition and granted reinstatement with all service benefits and payment of back wages to the extent of 25%.
The Division Bench of the High Court substituted the order of the Single Judge by imposing penalty of reduction of one increment for one year and reinstatement without back wages since he was already drawing pension.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
ORDER
1. Leave granted.
2. This appeal by special leave is filed by the appellant as he is aggrieved of the judgment and order dated 26.11.2014 passed by the Division Bench of the 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 that the period of dismissal and the reinstatement shall be reckoned as a continuity of service for the purpose of pension and, accordingly, partly allowed the Writ Appeal preferred by the Bank.
3. 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.
4. 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 Manager of Hallydayganj Branch to sanction cash credit facility sans disclosing earlier loan of Abdul Kuddus 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.
5. 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.
6. 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 herein the enquiry report after taking the view that charge Nos. 3 and 5 were proved for which the appellant submitted a reply on 22.11.2005.
7. 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
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