Biswanath Rath, J. -
(1.) This writ petition involves a challenge to the order dated 11th June, 2014 passed by the Appellate Authority, vide Annexure-1 confirming the order of penalty passed by the Appointing Authority appearing at Annexure-12.
(2.) Short background involving the case is that the petitioner joined the O.P.-Bank as a Probation Officer on 16th April, 1990. Being confirmed he continued as Assistant Manager in the Balasore Branch from September, 1992 to June, 1993, Assistant Manager (IB), Bhubaneswar Main Branch from June, 1993 to August, 1993, IBTO (Operations Officer) from August, 1993 to August, 1994 in the S.B.I. (California), Los Angeles Agency, IBTO (Operations Officer), S.B.I. (California), Los Angeles from August, 1994 to January, 1996, Assistant Manager (ADV), Pipili from January, 1996 to December, 1997, Branch Manager at Dandamukundapur Branch from December, 1997 to July, 1999, Assistant Manager (IB), IDCO Tower Branch from July, 1999 till August, 2001, Branch Manager, Laxmisagar Evening Branch from August, 2001 to June, 2002, Dy. Manager, LHO, Bhubaneswar from June, 2002 till July, 2003, Branch Manager, Bhanja Bihar Branch from August, 2003 to July, 2006, Manager (MAC), LHO, Bhubaneswar from July, 2006 to July, 2008 and Chief Manager in the Global Markets Unit, Kolkata from August, 2008 till he was dismissed by the impugned order dated 29.10.2013. The petitioner while continuing as Chief Manager in the Global Markets Unit, Kolkata, was served with the suspension order dated 17.1.2012 with clear direction that during the period of suspension, he shall attend the Office everyday and should keep himself readily available to the Bank whenever required. The suspension order disclosed the reason of suspension of the petitioner as ascertainment of certain serious irregularities alleged to have been committed by the petitioner during his tenure as Chief Manager, Nostro Re-conciliation Section, Global Management Unit, Kolkata in connection with some remittances received from the State Bank of India, New York Branch. It was intimated therein that the irregularities alleged to have been committed by him are grave and serious in nature. It is pursuant to service of suspension order by making communication dated 9.2.2012, vide Annexure-4 indicating therein the allegation in paragraph-3 involving the petitioner. Therein the petitioner was advised to submit his explanation involving the lapses/irregularities alleged to have been committed by him, pursuant to which the petitioner submitted his explanation, vide Annexure-5 giving therein his parawise comments clearly refuting all the allegations against him. It appears, being not satisfied with the response of the petitioner while serving on the petitioner the statement of articles of charges, the petitioner was again communicated on 5.6.2012 asking him to submit his written statement of defence within a period of ten days along with all documents and list of witnesses he is taking support. The petitioner submitting his explanation though denied all the charges on the premises that not only he had worked with utmost devotion and integrity along with a conscious response to the statement of article of charges but also on the premises that there has been no pecuniary loss to the Bank on account of the alleged action, thus requested, the petitioner may be exonerated from the allegations with an order of reinstatement in his favour. The Disciplinary Authority being not satisfied with his explanation entrusted the enquiry to Sri Tarun Kumar Kundu, Assistant General Manager (Forex Treasury), Global Markets Unit, Kolkata for regular hearing and enquiry. Enquiry being undertaken in participation of the petitioner, enquiry report dated 14.1.2013 being served on the Disciplinary Authority, the Disciplinary Authority since was junior to the Appointing Authority, vide correspondence dated 16.1.2013 asked the petitioner to make his submissions on the enquiry report finds place at Annexure-9. It is based on the submission of report of the Disciplinary Authority since he was junior to the Appointing Authority the Disciplinary Authority submitted his views to the Appointing Authority on the findings of the Enquiry Officer. It is after which the Appointing Authority, i.e., Chief General Manager (HR), vide letter dated 28.8.2013 at Annexure-11 before passing the final order gave a scope of personal hearing to the petitioner for making his submission on the proposed punishment for dismissal from service and to treat the period of suspension as "not on duty", vide Annexure-11. After providing opportunity of hearing the Appointing Authority, vide Annexure-12 through his order dated 29.10.2013 communicated the penalty by awarding punishment of dismissal from service in terms of Rule 67(j) of the State Bank of India Officers' Service Rules in short 'SBIOSR' and treating the period of his suspension as "not on duty" however with further observation that the official may be paid the gratuity payable to him with a scope for preferring appeal to the Appellate Authority within a period of 45 days in terms of Rule 69 of the SBIOSR. It is after the appeal preferred by the petitioner, vide Annexure-14, the Appellate Authority, vide Annexure-1 confirmed the order of the Appointing Authority, i.e., the order of punishment. Hence, the writ petition.
(3.) Referring to the background involving the case and the pleadings narrated in the writ petition involving the challenge to the impugned orders passed by the Appointing Authority as well as the Appellate Authority, Sri D.Panda, learned counsel for the petitioner contended that there is no examination of aggravating and mitigating circumstances and alleged that the entire transaction proceeded on an erroneous premises that the submission made by the delinquent regarding past performance and highlights of his career as a matter of record, which cannot be considered, as a mitigating factor for the lapses of serious nature, the delinquent was held responsible. The appellate order is also challenged on the premises that the Appellate Authority has disposed of the matter without even calling for relevant material on the basis of which the Appellate Authority could have applied its mind to at least deal with the quantum of punishment, by which the Appellate Authority has completely ignored the illustrious twenty-two years of career of the petitioner. It is also alleged that finding of the Enquiry Authority on the conversion and credit of foreign remittance from U.S. Dollars to U.S. currency to the Bank Accounts of the beneficiaries were illegal and unauthorised is perverse and premeditated for nonconsideration of the materials available on record. Taking aid of the instruction of the beneficiaries, it is alleged that the remitter sent the money for the beneficiaries and had provided a clear instruction that the amount is to be deposited as U.S.D. and not to be converted to I.N.R. B.N.R. will be withdrawn (SIC) IN "INR". It is in the circumstance of such instruction, no disposal instruction has been secured from the beneficiaries. Therefore, the petitioner alleged that conversion of the foreign remittance received in U.S. Dollars into Indian Currency and credit thereof into the Bank Accounts of the beneficiaries was unauthorised and illegal being contrary to the provision of Section 10(5) of the Foreign Exchange Management Act, 1999. It is thus alleged that the Enquiry Authority, the Appointing Authority and the Appellate Authority have all failed in appreciating this aspect and have penalized the petitioner for no fault of him. The petitioner alleged that the final order of punishment of dismissal was passed without giving due importance to the materials available on record and has no foundation. Learned counsel for the petitioner also submitted that the penalty imposed on the petitioner is disproportionate to the quantum of offence alleged. The order of the Disciplinary Authority/Appointing Authority is also challenged on the premises that there was no opportunity of hearing to the petitioner on the opinion of the Disciplinary Authority on imposition of punishment on supply of copy of Disciplinary Authority's view before passing the order of dismissal. Learned counsel for the petitioner also alleged that the Appointing Authority simply relied on the recommendation of the Disciplinary Authority, the Appointing Authority even did not disclose its own view for imposing major penalty of dismissal from service under Rule 67(j) of SBIOSR.and to treat the period of suspension as "on duty". Finally, Sri Panda, learned counsel for the petitioner claimed that the final order of punishment was already determined before the petitioner is given an opportunity of personal hearing before the Appointing Authority. Sri Panda thus alleged that the final order of punishment is predetermined and as such not maintainable in the eye of law.
Demonstrating through the penalty order attached to the final order of punishment also an unreasoned one, as there is no reason by the Appointing Authority for giving such opinion, it is claimed that the entire penalty order contains everything except the personal view on assessment of the proceeding of the Enquiry Officer and Disciplinary Authority. So far as observation and views in the involvement of a final order of punishment of dismissal from service are concerned, learned counsel for the petitioner urged that passing of final order of punishment by the Appointing Authority cannot be a mere formality and since the disciplinary proceeding ended with suggestion of dismissal from service and an objection from the petitioner in shape of personal hearing was ensured, it was incumbent upon the Appointing Authority to at least visit through the submission of the delinquent and to arrive at its own finding after dealing with and discussing the same, in absence of which it is claimed that the impugned order of the Appointing Authority becomes bad.
Sri D.Panda, learned counsel for the petitioner also urged that since the petitioner was provided with a post-decisional hearing by the Appointing Authority, the opportunity to the petitioner remained formal. Sri Panda, learned counsel for the petitioner, therefore, contested the dismissal order passed by the Appointing Authority for being in violation of natural justice before taking the decision of dismissal of the petitioner from service. The impugned order of dismissal by the Appointing Authority is also challenged on the ground that there is no independent application of mind by the Appointing Authority and the impugned order at Annexure-12 is simply passed relying on the findings already arrived at by the Disciplinary Authority. It is alleged that once a view is taken by the Disciplinary Authority before providing opportunity of hearing and if said view is concurred by the Appointing Authority then it was necessary on the part of the Appointing Authority to give opportunity of hearing to the charge sheeted employee also giving a copy of reason and view of Disciplinary Authority. Learned counsel also referring to the provisions under the Regulation-1992 submitted that the enquiry involved also vitiates in absence of examination of the charge-sheeted witnesses.;