# G.B. Saxena v. State Bank of India &Ors

- **Citation:** (2019) 1 ILRA 842
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-28
- **Case number:** Service Single No. 9293 of 2006
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/g-b-saxena-v-state-bank-of-india-ors-44483
- **Pages:** 8

## Headnote

1 All. G.B. Saxena Vs. State Bank of India & Ors.
843
N.K.
Seth,
Anurag
Srivastava,
Smt.
Pushpa

A. Natural justice. Violation. State Bank
of
India
Officers
Service
Rules-
Paragraph 68(2) of the Service Rules -
Dismissal from service-
Appeal and
Review Rejected- Violation of Principles
of Natural Justice- Proportionality of
Punishment.

Not only are the enquiry proceedings vitiated
for non-observance of the principles of natural
justice according a fair opportunity to the
petitioner to defend himself and on account of
violation of paragraph 68(2) of the Service
Rules, but also that the punishment imposed is
disproportionate
to
the
gravity
of
the
charges.(Para 17,19,20,22,28,30,32)

Writ Petition allowed.

Case Law Relied Upon/Discussed: -

## Text

842 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent of the deceased Surya Lal, the
petitioner is not entitled to compassionate
appointment under the Dying in Harness
Rules.

26. In Jai Prakash Vs. State of U.P.
&Anr. 2003 (53) ALR 197, a Division
Bench of this Court has opined as under:-

"7. On the admitted facts, the writ
petitioner having been taken in adoption by
the widow of the deceased a couple of
months after the death of Chhotey Singh,
could not be said to be a dependent member
of the family of the deceased employee
entitled for appointment on compassionate
grounds under the Dying in Harness Rules,
1974. The purpose of the said Rules is to
provide employment to a dependent member
of the family of the deceased employee to
tide over the sudden financial-crisis which
the family of the deceased undergoes
because of the sudden death of the sole bread
earner of the family. The writ petitioner can
in no case be said to be a member of the
family of Chhotey Singh at the time of his
death. He had subsequently acquired the
status of being a member of the family by
way of an adoption made by the widow of
the deceased employee. If the benefit of the
Dying in Harness Rules, 1974 is permitted
even to those who are subsequently adopted
after the death of the employee, it would
open a new channel of employment. This
would encourage employment through
backdoor even to those who were not
actually
Dependants
of
the
deceased
employee and had subsequently acquired
such status by managing to get adopted in the
family of the deceased employee, for the
purposes of getting a job. The present day
unemployment situation prevailing in the
country, where qualified unemployed youth
are queuing up in large numbers desperate to
get Government jobs, is a fact well known to
all and the Courts also cannot shut their eyes
to this reality. Such back door entry of
employment, if permitted, would defeat the
very
purpose
of
appointment
on
compassionate ground. Even those who are
not actually members of the family of the
deceased would in this manner, by
subsequently getting adopted, put forward
their claim and get appointment under the
Dying in Harness Rules.

8. For the foregoing reasons, we have
no hesitation in holding that a person who
has been adopted after the death of the
employee would not be entitled to the
benefit
of
the
appointment
on
compassionate grounds under the Dying
in Harness Rules, 1974."

(emphasis supplied)

27. For the aforesaid reasons, the
writ petition is dismissed on the ground of
delay and laches as well as on merit.

28. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE
THE HON'BLE MANISH MATHUR, J.

Service Single No. 9293 of 2006

G.B. Saxena ...Petitioner
Versus
State Bank of India &Ors. ...Respondents

Counsel for the Petitioner:
K.K.
Gautam,
Madhav
Srivastava,
Madhusudan Srivastava

Counsel
for
the
Respondents:
1 All. G.B. Saxena Vs. State Bank of India & Ors.
843
N.K.
Seth,
Anurag
Srivastava,
Smt.
Pushpa

A. Natural justice. Violation. State Bank
of
India
Officers
Service
Rules-
Paragraph 68(2) of the Service Rules -
Dismissal from service-
Appeal and
Review Rejected- Violation of Principles
of Natural Justice- Proportionality of
Punishment.

Not only are the enquiry proceedings vitiated
for non-observance of the principles of natural
justice according a fair opportunity to the
petitioner to defend himself and on account of
violation of paragraph 68(2) of the Service
Rules, but also that the punishment imposed is
disproportionate
to
the
gravity
of
the
charges.(Para 17,19,20,22,28,30,32)

Writ Petition allowed.

Case Law Relied Upon/Discussed: -
1. Kandaa v. Govt. of Malaya,1962 AC 322

2. K.L. Tripathi v. State Bank of India and
others reported in AIR 1984 Supreme Court
273

3. Roop Singh Negi v. Punjab National Bank &
others, reported in AIR 2008 SC (supp) 921

4. Asha Ram Verma and others v. State of U.P.
and othersreported in 2003(21) Lucknow Civil
Decisions 493

5. Union of India and others v. J. Ahmed,
reported in AIR 1979 Supreme Court 1022

6. Bhagirathi Jena v. Board of Directors,
O.S.F.C. and others,reported in (1999) 3 SCC
666

Case Law Distinguished: -
1. State Bank of India v. Tarun Kumar
Banerjee and others, reported in (2000) 8 SCC
12

2. State of Andhra Pradesh and others v.
S.Sree Rama Rao, reported in AIR 1963
Supreme Court 1723
3. State Bank of India and ors v. Narendra
Kumar Pandey, reported in AIR 2013 Supreme
Court 904

4. Bank of India v. Apurba Kumar Saha
reported in 1994(1) SLR 260

5. State Bank of India and others v. Ramesh Dinkar
Punde, reported in (2006) 7 SCC 212 (E-3)

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
Sri
Madhu
Sudan
Srivastava,
learned
counsel
for
the
petitioner and Sri Anurag Srivastava,
learned counsel appearing on behalf of the
opposite parties.

2. The petitioner has challenged the
order dated 18.07.2005 dismissing him
from service, the order dated 27.10.2005
rejecting his appeal and the order dated
03.08.2006
dismissing
the
review
application of the petitioner.

3. As per the averments made in the
writ petition, the petitioner while in
service was served with a charge sheet
dated 25.06.2004 levelling 8 allegations
against him primarily in relation to
infraction of procedure pertaining to grant
of loan on behalf of the Bank. The said
charge sheet was replied to by the
petitioner
whereafter
disciplinary
proceedings ensued resulting in the
passing of the dismissal order against
which the petitioner's appeal and review
were also rejected.

4. Sri Madhusudan Srivastava,
learned counsel for the petitioner has
submitted that the proceedings of the
enquiry were vitiated not only on account
of deviation from the established norms of
natural justice but also against the
provisions of the State Bank of India
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Officers
Service
Rules(herein
after
referred to as the Service Rules).

5. Learned counsel for the petitioner
has also submitted that even otherwise the
punishment meted out is disproportionate
to the charges levelled against the
delinquent employee.

6.

In
order
to
buttress
his
submissions
regarding
lacuna
in
procedure,
learned
counsel
for
the
petitioner
has
drawn
attention
to
paragraph 68(2) of the Service Rules
which provide for oral and documentary
evidence to be adduced by which the
articles of charge are proposed to be
proved. He has further submitted that the
aforesaid paragraph specifically provides
for holding of oral enquiry and an
opportunity for the delinquent employee
to cross examine the witnesses produced
against the delinquent employee. Sri
Srivastava has submitted that the enquiry
proceedings
under
challenge
have
deviated from the aforesaid mandatory
provisions since no opportunity was given
to the petitioner to cross examine the
relevant witnesses whose statements were
relied upon. He has also submitted that
even the relevant documents which
formed the basis of establishment of
charges against the petitioner were never
adduced in the enquiry proceedings.

7. The learned counsel in order to
substantiate his arguments, has submitted
his written submissions and has relied
upon the following judgments:-

(i) State of Uttar Pradesh and others
v. Saroj Kumar Sinha reported in (2010) 2
SCC 772;

(ii) Roop Singh Negi v. Punjab
National Bank & others, reported in AIR
2008 SC (supp) 921;

(iii) M. V. Bijlani v. Union of India
and others, reported in AIR 2006
Supreme Court 3475;

(iv) Union of India and others v.
Mohd. Ramzan Khan; reported in AIR
1991 SC 471;

(v) Raj Kumar Srivastava v. State of
U.P., reported in MANU/UP/3726/2017;

(vi) Syed Mansoor Hasan Rizvi v.
Director,
Local
Bodies
and
others
reported in 2017 SCC OnLine All 861;
and

(vii) Kaptan Singh v. State of U.P.
reported in 2014 SCC OnLine All 6718

8. Sri Anurag Srivastava, learned
counsel appearing on behalf of the
respondent-bank has vehemently denied
the submissions of the learned counsel for
the petitioner with the submission that
ample
opportunity
of
hearing
was
provided to the petitioner and there was
sufficient evidence produced during the
enquiry
proceedings
to
indict
the
petitioner. He has further submitted that
in relevant cases, such as the present one,
strict compliance of oral enquiry is not
required in view of the admission of the
petitioner. Learned counsel has further
submitted that the enquiry proceedings
were held in a completely transparent and
fair manner without causing any prejudice
to the rights of the petitioner and,
therefore, there was no infringement of the
service rules. It has also been submitted
that this court does not sit in appeal over
the findings given by the disciplinary
authority and that re-examination of
evidence led in disciplinary proceedings
is unwarranted and unless there is some
perversity, the writ court cannot substitute
its judgment in place of the decision of
the disciplinary authority. Sri Srivastava
has further submitted that when on the
question of facts, there is no real dispute
1 All. G.B. Saxena Vs. State Bank of India & Ors.
845
and no prejudice has been caused by
absence of any formal opportunity of
cross-examination, it per se does not
invalidate or vitiate the decision arrived at
fairly, more so when the party against
whom an order has been passed does not
dispute the facts and does not demand to
test veracity or credibility of the statement
against him.

9. The learned counsel in order to
substantiate his arguments, has submitted
his written submissions and has relied
upon the following judgments:-

(i) State Bank of India v. Tarun
Kumar Banerjee and others, reported in
(2000) 8 SCC 12;

(ii) State of Andhra Pradesh and
others v. S.Sree Rama Rao, reported in
AIR 1963 Supreme Court 1723;

(iii) K.L. Tripathi v. State Bank of
India and others reported in AIR 1984
Supreme Court 273;

(iv) State Bank of India and ors v.
Narendra Kumar Pandey, reported in AIR
2013 Supreme Court 904;

(v) Bank of India v. Apurba Kumar
Saha reported in 1994(1) SLR 260; and

(vi) State Bank of India and others v.
Ramesh Dinkar Punde, reported in (2006)
7 SCC 212

10. Heard learned counsel for the
parties and perused the record.

11. It is admitted fact that paragraph
68(2) of the Service Rules would govern
the disciplinary proceedings taken by the
Bank against the delinquent employees
such as the petitioner. Paragraph 68(2)
(xiii) pertaining to the conduct of the
proceedings is as follows :-

"(xiii) On the date fixed for the
enquiry, the oral and documentary
evidence by which the articles of charge
are proposed to be proved shall be
produced by or on behalf of the Bank. The
witnesses produced by the Presenting
officer
shall
be
examined
by
the
Presenting Officer and may be crossexamined by or on behalf of the officer.
The Presenting Officer shall be entitled to
re-examine his witnesses on any points on
which they have been cross-examined, but
not on a new matter without the leave of
the Inquiring Authority. The Inquiring
Authority may also put such questions to
the witnesses as it thinks fit."

12. A perusal of the enquiry report
dated 12.04.2005 which has been brought
on record by the opposite parties by
means of the supplementary counter
affidavit indicates the fact that the charges
have been found to be established against
the petitioner not only on the basis of any
alleged admission on the part of the
petitioner but also on the basis of prerecorded statements of the borrowers,
namely,
Smt.
Pushpa
Lata
Devi,
Smt.Ramjano, Sri Noor Mohammad and
the Bank employee Sri V.K.Shukla.
However, the enquiry report makes it
apparent that the aforesaid persons were
never
produced
as
witnesses
to
substantiate the statements made against
the petitioner. It is thus clear that no
opportunity of cross-examination of the
aforesaid persons was afforded to the
petitioner which, therefore, is clearly in
conflict with paragraph 68(2) of the
Service Rules. The enquiry report further
indicates that even at the time of enquiry
proceedings, the petitioner had challenged
the evidentiary value of the statement of
Smt. Pushpa Lata Devi which was,
however, rejected.

13. The enquiry report also reveals
that the charges against the petitioner
846 INDIAN LAW REPORTS ALLAHABAD SERIES
have been found to be established by
placing reliance on the reports submitted
by the petitioner's successor on the post of
Branch Manager, Sri Ashutosh Pandey.
On the basis of the said reports submitted
by Sri Ashutosh Pandey, the enquiry
officer has concluded that the loans
disbursed by the petitioner were diverted
for other purposes and the project for
which the loan had been sanctioned was
not complete.

14. Such a finding on the basis of
inspection
report
submitted
by
Sri
Ashutosh Pandey clearly forms the basis
of establishment of charges against the
petitioner but a reading of the entire
enquiry report makes it clear that the said
person, namely, Sri Ashutosh Pandey has
never been produced as a witness during
the proceedings either to substantiate his
report or for cross examination by the
petitioner.
The
said
fact
assumes
importance in view of the fact that the
petitioner had objected to the reliance
being placed upon the report of Sri
Ashutosh Pandey on the ground that Sri
Pandey had earlier also been warned for
wrong and casual reporting by the Zonal
Officer. The said report had been
produced by the petitioner during the
enquiry proceedings as exhibit DEx.13/8.
However, the said submission of the
petitioner had been rejected only on the
ground that the said exhibit could not
protect the charged officer for lapses
committed by him.

15. It is, thus, clear that the enquiry
officer has found the charges to be
established against the petitioner on the
basis of an inspection report submitted by
an employee who was never produced in
enquiry as a witness and also in the face
of the warning letter of the zonal office
regarding wrong and casual reporting by
such an officer. Once the petitioner had
objected to the reliance being placed on
the inspection report of Sri Pandey, then it
was incumbent upon the enquiry officer to
have dealt with the issue thoroughly
particularly in view of the warnings
issued by the zonal office instead of
dealing with the said objections in such a
casual and cursory manner.

16. Apart from the statements of the
aforesaid
persons,
various
other
documents pertaining to the loan accounts
of many other borrowers have also been
seen by the enquiry officer to hold the
charges established against the petitioner
but the enquiry report does not indicate as
to whether such other borrowers were
ever produced as witnesses in order to
prove the charges against the petitioner.

17. The aforesaid factors clearly
indicate an infraction of the provisions of
Service
Rules
applicable
upon
the
petitioner. Although various other factual
discrepancies have also been indicated by
learned counsel for the petitioner, the
same is not being gone into in view of the
settled law that factual disputes cannot be
entertained in writ jurisdiction. Similarly,
learned counsel for the opposite parties
has also indicated various factual aspects
of the enquiry report pertaining to the
substantiation of charges against the
petitioner but the same is also being
ignored for the aforesaid reason.

18. Hon'ble the Supreme Court in a
catena of decisions including the decision
in Roop Singh Negi v. Punjab National
Bank(supra) has specifically held that
the authority conducting an enquiry
against a delinquent employee clearly
discharges a quasi-judicial function and
1 All. G.B. Saxena Vs. State Bank of India & Ors.
847
is, therefore, required to act in a fair and
impartial manner. It is obligatory upon the
said authority not only to deal with the
reply
submitted
by
the
delinquent
employee but also a duty is cast upon him
to find out the truth of the allegations
leveled against the delinquent employee.
The purpose of an enquiry is not to
establish a delinquent employee guilty of
the charges levelled against him.

19. The adherence to principles of
natural justice as recognized by all civilized
States is of supreme importance when a quasijudicial body embarks on determining
disputes between the parties, or any
administrative
action
involving
civil
consequences is in issue. There principles are
well settled. The first and foremost principle is
what is commonly known as audi alteram
partem rule. It says that no one should be
condemned unheard. Notice is the first limb of
this principle. It must be precise and
unambiguous. It should apprise the party
determinatively of the case he has to meet.
Time given for the purpose should be
adequate so as to enable him to make his
representation. In the absence of a notice of
the kind and such reasonable opportunity, the
order passed becomes wholly vitiated.

20. The golden rule which stands
firmly established is that the doctrine of
natural justice is not only to secure justice
but to prevent miscarriage of justice. Its
essence is good conscience in a given
situation; nothing more but nothing less.

21. Lord Denning, in the case of
Kandaa v. Govt. of Malaya, 1962 AC
322 has observed that " if the right to be
heard is to be a real right which is worth
anything, it must carry with it a right in
the accused person to know the case
which is made against him. He must know
what evidence has been given and what
statements have been made affecting him;
and then he must be given a fair
opportunity to correct or contradict them."

22. In the present case, it is clearly
discernible that a fair opportunity of
hearing has not been afforded to the
petitioner
in
view
of
the
factors
enumerated herein above and as such the
disciplinary
proceedings
are
clearly
against the provisions of paragraph 68(2)
of the Service Rules. It is also relevant
that the petitioner objected to the nonadherence of the Rules even at the stage
of enquiry proceedings itself, which,
however, were rejected for unwarranted
reasons. The non-observance of the
principles of natural justice although not
taken in appeal were thereafter taken the
petitioner in the review application but the
same has again been rejected without
proper examination of the disciplinary
proceedings vis-a-vis the Service Rules.

23. So far as the judgments relied
upon by learned counsel for the opposite
parties are concerned, a perusal of the
judgment rendered by Hon'ble the Supreme
Court in State Bank of India v. Tarun
Kumar Banerjee and others(supra) will
make it clear that while Hon'ble the
Supreme Court has held that a customer of
the bank need not be involved in domestic
enquiry as such a course would not be
conducive in the interest of the Bank, but
the same was in the circumstances of the
said case and would not have applicability
in the present case where the statement of
the customer of the Bank forms the basis of
establishment of charges against the
petitioner and would, therefore be covered
by the judgment rendered by Hon'ble the
Supreme Court in the subsequent decision
of Roop Singh Negi(supra).
848 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The decision in State of Andhra
Pradesh and others v. S.Sree Rama
Rao(supra) pertains to the power of the
High Court under Article 226 of the
Constitution of India to interfere with the
findings recorded in enquiry proceedings.
The
same
would
not
have
any
applicability in the present case since this
Court has not enquired into the findings
of fact recorded in the disciplinary
proceedings but has only tested the breach
of the provisions of natural justice as
envisaged in the service rules.

For the same reason, the judgment
rendered by Hon'ble the Supreme Court in
State Bank of India and others v.
Ramesh Dinkar Punde(supra) would be
inapplicable in the present case.

25. The decision in K.L. Tripathi v.
State Bank of India and others(supra)
on
the
other
hand
would
be
of
applicability since Hon'ble the Supreme
Court itself has stated that the basic
concept
is
fair
play
in
action
administrative, judicial or quasi-judicial.
Hon'ble the Supreme Court has held that
there
is
no
requirement
of
crossexamination when on the question of facts
there is no dispute and no real prejudice
has been caused to a party as such, by
absence of any formal opportunity of
cross examination. This would be more so
when a party against whom an order has
been passed does not dispute the facts and
does not demand to test the veracity of the
version of the credibility of the statement.

In the present case, the petitioner
even during the enquiry proceedings had
clearly disputed the credibility of the
statements made/pre-recorded against the
petitioner and, therefore since there was a
dispute with regard to the said statements,
the right to cross-examine such witnesses
was inherent and mandatory as held by
Hon'ble the Supreme Court itself.

26. The decision in State Bank of India
and
others
v.
Narendra
Kumar
Pandey(supra) would also be inapplicable in
the circumstances of the present case because of
the disciplinary enquiry referred to in the said
case was ex parte and in view of the said fact,
Hon'ble the Supreme Court held that in an ex
parte enquiry, if the charges are borne out from
documents, no oral evidence is necessary to
prove the charges. It has been held that when the
charged officer does not attend the enquiry, then
he cannot contend that the inquiring authority
should not have relied upon the documents
which were not made available or disclosed to
him. In the present case, the enquiry was clearly
not an ex parte one and the petitioner was fully
involved at all stages.

For the same reason, the judgment
rendered by Hon'ble the Supreme Court in
Bank of India v. Apurba Kumar
Saha(supra) would be inapplicable in the
present case.

27. A Full Bench of this Court in
Asha Ram Verma and others v. State of
U.P. and others reported in 2003(21)
Lucknow Civil Decisions 493 has held
that although the Evidence Act is not
applicable in departmental enquiry but
whenever any evidence is produced either
oral or documentary and is relied upon,
the person concerned should be given
opportunity to cross examine.

28. With regard to the submission of
learned
counsel
for
the
petitioner
pertaining
to
disproportionality
of
punishment, relevant fact pertaining to the
present case is that none of the charges
imputed against the delinquent employee
1 All. Shri Kant Tiwari Vs. State of U.P. & Ors.
849
pertain to any collusive activity for defrauding
the Bank or any charge pertaining to
embezzlement. At best the charges would
indicate negligence or failure to attain the
highest standards of administrative ability
against the petitioner. Hon'ble the Supreme
Court in Union of India and others v. J.
Ahmed, reported in AIR 1979 Supreme Court
1022 has held that it is difficult to believe that
lack of efficiency or attainment of highest
standards in discharge of duty attached to
public office would ispo facto constitute
misconduct. The relevant paragraph is
reproduced hereinafter.

"11..................It is, however, difficult to
believe that lack of efficiency or attainment of
highest standards in discharge of duty attached
to public office would ispo facto constitute
misconduct. There may be negligence in
performance of duty and a lapse in performance
of duty or error of judgment in evaluating the
developing situation may be negligence in
discharge of duty but would not constitute
misconduct unless the consequences directly
attributable to negligence would be such as to be
irreparable or the resultant damage would be so
heavy that the degree of culpability would be
very high. An error can be indicative of
negligence and the degree of culpability may
indicate the grossness of the negligence.
Carelessness can often be productive of more
harm
than
deliberate
wickedness
or
malevolence........."

Applying the aforesaid judgment of Hon'ble
the Suprme Court in the present case, it can be
seen that dismissal of the petitioner from service
is, therefore, exorbitant and disproportionate to the
gravity of the charges particularly since there is no
allegation that the petitioner was involved in
active collusion with the borrowers for causing
financial loss to the Bank.

29. No other point was argued by
learned counsel for the parties.

30. In view of the aforesaid, it is
clear that not only are the enquiry
proceedings vitiated for non-observance
of the principles of natural justice
according a fair opportunity to the
petitioner to defend himself and on
account of violation of paragraph 68(2) of
the Service Rules, but also that the
punishment imposed is disproportionate
to the gravity of the charges.

31. It has been informed that during
pendency of the writ petition, the
petitioner has subsequently superannuated
from service and the service regulations
do not prescribe for holding of any
disciplinary
proceedings
after
superannuation. Therefore, in view of the
judgment of Hon'ble the Supreme Court
in
Bhagirathi
Jena
v.
Board
of
Directors, O.S.F.C. and others, reported
in (1999) 3 SCC 666 no remand for fresh
enquiry can be directed. 32. In view of
the aforesaid, the writ petition is allowed
and a writ in the nature of Certiorari is
issued quashing the impugned orders
dated
18.07.2005,
27.10.2005
and
03.08.2006 with consequential service
benefits to the petitioner.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 2391 of 2015

Shri Kant Tiwari ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
A.K. Pandey

Counsel for the Respondents: