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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JEYAPAUL
M. Marimuthu
Versus
The General Manager (D&PB), State Bank of India & Another
W.P.No.9145 of 2001
Decided on : 30-04-2010
(B)Service-Disciplinary proceeding-Charge-Witness-Statement-Proof-In disciplinary proceedings, the author whose statement is sought to be relied on by the management has to be examined in the presence of the delinquent to prove that statement.
Unless the authors of those statements are examined to substantiate the fact that the statements were recorded by the investigating official, no reliance can be placed on those statements even in disciplinary proceedings. The petitioner has been completely prejudiced on account of the fact that those documents were simply exhibited by the respondent bank during the course of enquiry without giving an opportunity to the petitioner to subject the authors of those statements to cross-examination. Para 7
(C)Service-Disciplinary proceeding-Charge-Proof-Witness-Examination-Cross examination-Delinquent-Right-Defence witness-In departmental proceedings, the witnesses let in by the management has to be examined in the presence of the delinquent and the delinquent has to be afforded an opportunity to cross-examine him-In departmental proceedings, the delinquent is having the right to examine witnesses for his defence.
The employee proceeded against should be informed of in uncertain terms the charges levelled against him. All the witnesses should be examined only in the presence of the employee so that he will have an opportunity to witness the demeanor of the witnesses in order to subject them to cross-examination effectively. The delinquent should be afforded with a fair opportunity to subject all the witnesses on the side of the Department to cross examination. The delinquent also should have been allowed to examine witnesses on his side. The findings recorded by the enquiry officer should stand to reason. Para 33
(D)Service-Disciplinary proceeding-Charge-Proof-Standard-Standard of proof in departmental proceeding is preponderance of probability.
The disciplinary proceedings are considered as quasi-criminal proceedings inasmuch as the moment the charges are established, even the corporal punishment of dismissal from service is awarded to the employee concerned. But, in quasi-criminal proceedings, the Department is not supposed to prove to the hilt the charges levelled against the employee beyond reasonable doubt. The concept of proving the case beyond doubt is alien to disciplinary proceedings. But, like a civil matter, the Department should come out with all evidence to establish that there is preponderance of probability to nail the erring employee on the charges levelled as against him. Para 39
(E)Service-Disciplinary proceeding-Charge-Proof-Witness-Examination-Order of examination-When the facts charged were not denied by the delinquent, the department may call upon the delinquent to come to the witness box first before commencing its side-When the facts charged are denied by the delinquent, it is for the department to commence the examination of the witnesses first before calling upon the delinquent to come to the witness box.
If the facts emphasised by the Department are not controverted by the delinquent officer, there is nothing wrong in first asking the delinquent to get into the box. But, in cases where the controversy arisen out of the charges levelled against the officer is seriously disputed, the Department should first examine its witnesses and mark its documents so that the delinquent will have a fair view of the case of the Department in order to satisfactorily explain during the course of cross-examination of those witnesses. Para 41
(F)Service-Disciplinary proceeding-Charge-Proof-Punishment-Adequacy-Court-Interference-Power-Where the punishment awarded by the department is shockingly disproportionate to the charges established, the court may substitute it with lesser punishment-Where the court finds that the charges levelled against the delinquent were never established by the department, it can interfere.
Fixing the quantum of punishment falls within the realm of the authority of the management after coming to a conclusion that the charges levelled against the delinquent stood established. The court should not interfere with the quantum of punishment which was awarded by the management considering the fact that all the charges levelled against the employee stood established. But, in a case where the punishment awarded by the bank is shockingly disproportionate to the charges established, there is a scope for the court to go in for substitution of the punishment awarded by the management which was disproportionate to the shock of the court.
45. The ratios laid down in the above judgments would have no application to the facts and circumstances of this case where the court finds that the charges levelled against the petitioner were never established by the bank. Para 44, 45
(G)Service-Disciplinary proceeding-Finding-Interference-Remand-When the result of disciplinary enquiry is set aside because of the absence of reliable material, the matter would not be remanded for fresh enquiry.
It is not a case where the principles of natural justice were violated. If such is the case, the bank can be directed to adhere to the principles of natural justice and go ahead with the enquiry afresh from the stage at which the violation of principles of justice were violated. Here is a case where a full-fledged enquiry was conducted by the bank, but, they failed to produce reliable materials to establish the charges levelled against the petitioner. Under such circumstances, the court is not inclined to accede to the final request made by the learned counsel appearing for the respondents that if the court comes to the decision that the enquiry was defective, a fresh enquiry may be ordered. Para 47
1. The petitioner was serving as Assistant Manager, State Bank of India at Avinashi during the year 1996. During that point of time, he was looking after agricultural crop loans. He was transferred to Mettupalayam Branch as Assistant Manager in July 1996. ON 17. 1996, the Branch Manager, Avinashi Branch sent a communication to the controlling authority alleging certain irregularities in the loan sanctioned during his tenure at Avinashi Branch. One Mr.Ramakrishnan, Manager, Ganapathy Branch, on deputation, investigated the matter. The petitioner was placed under suspension on 12. 1997. A memo was issued calling for explanation from the petitioner on 22. 1998. The petitioner sent a detailed reply on 5. 1998. A charge memo was issued by the Deputy General Manager, Coimbatore on 6. 1999. The Deputy General Manager ordered enquiry on 8. 1999. An enquiry was conducted on 28. 1999 and the same was concluded in the month of December 1999. The enquiry officer submitted his report on 29. 2000. The petitioner, on receipt of a copy of the report, submitted his explanation on 6. 2000. The first respondent imposed the punishment of compulsory retirement vide his proceedings dated 210. 2000.
2. It is contended by the petitioner that the entire proceedings are grossly vitiated by serious irregularities which go to the root of the matter. The authority did not examine any witness and as such the documents marked as prosecution exhibits should not have been relied upon. It is contended that the impugned findings are perverse. NO reasonable man could have come to such a conclusion, it is submitted.
3. The respondents filed counter stating that the enquiry was conducted properly after giving opportunity to the petitioner. The statements of the petitioners recorded during interrogation was marked as Ex.P2. After a detailed examination of the documents produced during the course of enquiry, the enquiry officer submitted his report on 24. 2000. The finding is that the charges had been proved. A copy thereof was furnished to the petitioner. The first respondent, who is the appointing authority, agreed with the conclusions of the Enquiry Officer and recommended to the second respondent for imposition of penalty of compulsory retirement. As per the State Bank of India Officers Service Rules, the second respondent imposed the punishment of compulsory retirement and treated the period of suspension as such. Respondents 1 and 2 have passed a well considered order strictly in accordance with law and in consonance with the principles of natural justice after proper application of mind to relevant materials borne out by records. It is further submitted that the petitioner, during the course of investigation, admitted in clear terms the gross irregularities and lapses committed by him. His admission was corroborated by other documentary evidence borne out by records. The petitioner did not dispute the written statement given by him, but, his contention that he was under immense mental pressure and was in a depressed state of mind while making those statements was not established. The penalty imposed on the petitioner is commensurate with the gravity of misconduct committed by him. Further, such a penalty is absolutely necessary to deter the recurrence of such abuse of official position and wilful dereliction of duty. Otherwise, confidence in the public on the functioning of the nationalised will be shaken. Therefore, the respondents pray for dismissal of the writ petition filed by the petitioner.
.4. Learned Senior Counsel appearing for the petitioner would submit that principles of natural justice were violated by the respondents inasmuch as the documents sought for by the petitioner were not produced. The borrowers, who gave statements, were not examined by the bank. Inspite of the fact that the petitioner was not the sanctioning authority, the charge memo would misread that the petitioner was the loan sanctioning authority. The finding rende
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