M. Vijayagopala Pillai and I.G. Santhakumari v. The Chief General Manager State Bank of India, Local Head Office, Thiruvananthapuram; The General Manager, Zonal Office, SBI, Thiruvananthapuram; Deputy General Manager, Disciplinary Authority, SBI, Zonal Office, LMS Compound, Thiruvananthapuram; The Chairman, State Bank of India Central Office, Mumbai; P. Retnamma Perayathu Veedu, Kudavattoor, Odanavattom, Kottarakkara

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **WP(C).No. 17229 of 2009** ## **PETITIONERS:** **1 M.VIJAYAGOPALA PILLAI, AGED 58 YEARS S/O.KRISHNA PILLAI, KAVUPURATH HOUSE, MANAKKAD POST, THODUPUZHA, IDUKKI (ASSISTANT MANAGER, KANJIRAPUZHA BRANCHSTATE BANK OF INDIA, COMPULSORY RETIREMENT) 2* ADDL.P2- I.G. SANTHAKUMARI AGED 56 YEARS, W/O.M.VIJAYAGOPALA PILLAI,, KAVUMPURATH HOUSE, MANAKKAD PO., THODUPUZHA., (*ADDL.P2 IS IMPLEADED AS PER ORDER DATED, 09.11.2011 IN IA.17560/2011)** **BY ADVS. SMT.K.P.GEETHA MANI SMT.ANNIE JACOB SMT.P.A.RINUSA SMT.V.BHARGAVI** ## **RESPONDENTS:** - **1 THE CHIEF GENERAL MANAGER STATE BANK OF INDIA, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM.** - **2 THE GENERAL MANAGER ZONAL OFFICE STATE BANK OF INDIA, THIRUVANANTHAPURAM.** - **3 DEPUTY GENERAL MANAGER DISCIPLINARY AUTHORITY, STATE BANK OF INDIA, ZONAL OFFICE, LMS COMPOUND, THIRUVANANTHAPURAM.** **WP(C).No. 17229 of 2009 2** **4 THE CHAIRMAN STATE BANK OF INDIA CENTRAL OFFICE, STATE BANK BHAVAN, MADAM CAM ROAD, MUMBAI-400021.** **5 P.RETNAMMA PERAYATHU VEEDU, KUDAVATTOOR, ODANAVATTOM, KOTTARAKARA REPRESENTED BY HER POWER OF ATTORNEY HOLDER SREEKUMAR.K.K., AGED 42 YEARS, S/O.LATE P.S.KUNJUKRISHNA PILLAI, SREEGOKUL, KUDAVATTOOR, ODANAVATTOM, KOTTARAKARA.** **BY ADVS. SRI.P.GOPAL SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.SYAM J SAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 17229 of 2009 3** ## **CR** ## **JUDGMENT** “Adherence to the principles of natural justice in a disciplinary proceeding is not a matter of mere formality but a _sine qua non_ ”, argues the petitioner and poses a singular question herein as to whether, in a disciplinary proceedings, the Authority imposing punishment upon the delinquent can do so without affording him an opportunity of being heard, or at least of representing against it, when the said Authority differs from the exoneratory recommendations made by the Enquiry Officer. 2. Though I have prefatorily recorded the crux of the petitioner's contention in this writ petition in the afore paragraph, it is now without doubt, through the various Judgments of the Hon'ble Supreme Court, including the Constitutional Bench Judgment in _**ECIL Vs B.Karunakar [1993 (4) SCC 727],**_ that ## **WP(C).No. 17229 of 2009 4** before a Disciplinary Authority overturns the recommendations of the Enquiry Officer, which was in favour of the delinquent, an opportunity should be given to the delinquent for offering explanation and even for hearing before punishment is imposed, particularly a major punishment. 3. However, the factual variance in this case is that the Authority which has imposed punishment on the petitioner is not the Disciplinary Authority, but his Appointing Authority, who has acted upon the recommendation of the Disciplinary Authority, thus prompting the 1[st] petitioner to contend that the actual Authority imposing punishment upon him might to have heard him before doing so. 4. The facts pleaded in this case would reveal that the 1[st] petitioner, who, pending this litigation, has unfortunately demised, was proceeded against under disciplinary ## **WP(C).No. 17229 of 2009 5** action by the respondent-Bank and that the Enquiry Officer found one among the two charges leveled against him to be proved, while the other not. However, the Disciplinary Authority, who is the Deputy General Manager of the respondent-Bank, did not find favour with the conclusions of the Enquiry Officer and therefore, issued Ext.P2 letter to the 1[st] petitioner, enclosing a copy of the enquiry report, asking for his explanation as to why all the charges against him cannot be found proved. 5. The 1[st] petitioner appears to have sent Ext.R3(b) letter in response to this, wherein, various assertions are seen made, including that he is not guilty of any of the charges leveled against him. However, the Disciplinary Authority, on a consideration of the same, felt that there was no merit in the 1[st] petitioner's explanation; but since, as per Regulation 68(3)(iii) of the State Bank of India Officers Service Rules (hereinafter ## **WP(C).No. 17229 of 2009 6** referred to as 'the Service Rules'), it is only the Appointing Authority who could impose punishment on the petitioner, he forwarded his recommendations, to impose the punishment of compulsory retirement, along with his opinion relating to the file, to the Appointing Authority who, thereafter, issued Ext.P3 order imposing the said punishment upon the 1[st] petitioner. The 1[st] petitioner is seen to have challenged this order before the Appellate Authority, by preferring Ext.P4 appeal, which finally culminated in Ext.P5 Appellate Order, again confirming the punishment. 6. Smt.V.Bhargavi, the learned counsel appearing for the second petitioner, the wife of the 1[st] petitioner, fervently pleaded both on law and on facts. As regards the factual circumstances are concerned, I am certain that the jurisdiction of this Court, in dealing with such matters under Article 226 of the Constitution of India, being severely restricted, the challenge against the orders, ## **WP(C).No. 17229 of 2009 7** based merely on the factual matrix, can take the petitioners no where. 7. However, one of the submissions made by Smt.V.Bhargavi, regarding the alleged violation of the principles of natural justice, certainly appeals to me and I will deal with it presently. 8. The learned counsel for the petitioners submit that once a Disciplinary Authority has taken a decision to differ from the views of the Enquiry Officer, the 1[st] petitioner ought to have been put on notice of the same and afforded an opportunity of being heard. She, however, concedes that Ext.P2 notice had been issued to the 1[st] petitioner by the Disciplinary Authority and that he had responded to it through Ext.R3(b). There is, of course, a further submission made by her that the 1[st] petitioner was not given a copy of the enquiry report, which, however, cannot find favour with me because Ext.P2 clearly ## **WP(C).No. 17229 of 2009 8** says that the said report was enclosed therewith and there is not even a whisper by the 1[st] petitioner, in Ext.R3(b) reply, controverting this. Therefore, I will not deal with that issue since I find it to be without substantiable basis. 9. That said, one aspect that, however, grips my singular attention is the manner in which the Disciplinary Authority referred the matter to the Appointing Authority under Regulation 68 (3)(iii) of the Service Rules, and the consequent approach of the said Authority in arriving at his decision, based on the opinion and recommendations made by the Disciplinary Authority. 10. Before I go forward, I deem it appropriate to extract the afore mentioned Rule for easy reference:- "If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Rule 67 should be imposed on the officer, ## **WP(C).No. 17229 of 2009 9** it shall, not-with-standing anything contained in sub-rule (4), make an order imposing such penalty. Provided that where the Disciplinary Authority is of the opinion that the penalty to be imposed is any of the major penalties specified in clauses (e), (f), (g) and (h) of Rule 67 and if it is lower in rank to the Appointing Authority in respect of the category of officers to which the officer belongs, it shall submit to the Appointing Authority the records of the enquiry specified in clause (xxi)(b) of sub-rule (2), together with its recommendations regarding the penalty that may be imposed and the Appointing Authority shall make an order imposing such penalty as it considers in its opinion appropriate." 11. As is clear from the afore extracted Rule, once a Disciplinary Authority forwards a file to the Appointing Authority, then the latter Authority has to take a subjective view in the matter and impose an apposite punishment which, in his opinion, is commensurate to the proven charges. Obviously, therefore, there is an independent decision making process involved at this stage and here is where the real issue starts. **WP(C).No. 17229 of 2009 10** 12. The materials on record render it luculent that the Disciplinary Authority, in Ext.P2, had not informed the 1[st] petitioner that he is proposing a particular punishment but only notified him that he intends to differ from the Enquiry Officer's views. Axiomatically, when the Appointing Authority then took a view, based substantially on the opinion and recommendations of the Disciplinary Authority, the 1[st] petitioner ought to have been, normally given an opportunity of being heard, which concededly has not been done. 13. In answer to this Shri.P.Gopal, the learned Standing Counsel for the respondentBank, submits that the Service Rules do not prescribe that the Disciplinary Authority or the Appointing Authority must have afforded a hearing to the 1[st] petitioner and therefore, that it was not incumbent upon them to have given him that opportunity. He says that the reason why the Disciplinary Authority ## **WP(C).No. 17229 of 2009 11** forwarded the file to the Appointment Authority was solely on account of the rank of the petitioner and because it was only the Appointing Authority who could have imposed the punishment as per the afore Rule; consequently, that there was no requirement for that Authority to hear the 1[st] petitioner, since he is only enjoined by the Rules to consider the recommendations of the Disciplinary Authority in arriving at a decision as to the punishment to be imposed. 14. When I assess the submissions made before me as afore by the learned counsel for the parties, as I have already indicated above, the one legal query that certainly engages my mind is whether the Appellate Authority ought to have given an opportunity to the 1[st] petitioner of being heard, or atleast of being able to make a representation, against the punishment to be imposed. **WP(C).No. 17229 of 2009 12** 15. This issue is vital because the Disciplinary Authority, in Ext.P2, did not indicate the punishment which he was recommending, but only recorded that he differs from the Enquiry Officer. Therefore, even at the stage when Ext.P2 notice was issued, the 1[st] petitioner was not aware that a penalty of compulsory retirement was being proposed against him. Resultantly, when he replied to the said notice through Ext.R3(b), though he denied all the allegations against him, he was still in the dark regarding the actual punishment proposed against him. 16. Ineluctably, therefore, when the Disciplinary Authority took a decision based on Ext.R3(b) and recommended the punishment of compulsory retirement and then forwarded the files as per Rule 68(3)(iii) of the Service Rules to the Appointing Authority, indubitably, the said Authority became obligated to take an independent decision, based on all the relevant inputs and ## **WP(C).No. 17229 of 2009 13** materials. At this stage, certainly, the said Authority ought to have given an opportunity to the petitioner, of either making a representation or of being heard, since going by the various judgments of the Hon’ble Supreme Court and in particular, _**Yoginath D.Bagde v. State of Maharashtra and Another**_ _**[1999 (7) SCC 739],**_ the principles of natural justice demand that the Authority, which proposed to decide against the delinquent, over ruling the findings of the Enquiry Officer benign to him, must have given him an effective hearing or at the least, an opportunity to represent against such an action. 17. In this case, the rigour of this requirement is much more because, as I have already said above, the 1[st] petitioner, until he received Ext.P3 order, was not even aware as to the punishment proposed against him. **==> picture [358 x 12] intentionally omitted <==** ## **WP(C).No. 17229 of 2009 14** Smt.V.Bhargavi, the learned counsel for the petitioners has certainly made out more than a prima facie case which warrants further action before the impugned order can operate. **==> picture [358 x 13] intentionally omitted <==** observations, which are based on the materials available, I am of the view that these specific aspects must be reconsidered by the Appellate Authority of the respondent- Bank,after affording an opportunity of being heard to the legal representatives of the now deceased 1[st] petitioner, so that they will obtain a chance to convince the said Authority in seeking a modification of the orders, if it is then found so warranted. 20. With the afore perspective, I set aside Ext.P5 order and direct the Appellate Authority to take up Ext.P4 Appeal afresh; but since the delinquent is no longer alive, the said Authority will afford an opportunity to the 2[nd] petitioner-his wife or her authorised ## **WP(C).No. 17229 of 2009 15** representative and thereafter, take a decision, adverting to my observations afore. This exercise shall be completed by the Appellate Authority as expeditiously as is possible but not later than four months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** MC/25.2.19 **WP(C).No. 17229 of 2009 16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF AMENDED MEMORANDUM DIS/CON/971 DATED 12.02.2004 EXHIBIT P2 TRUE COPY OF PROCEEDINGS DIS/CON/DATED 30.7.2005 EXHIBIT P3 TRUE COPY OF PROCEEDINGS DIS/CON/292 DATED 14.12.2005 EXHIBIT P4 TRUE COPY OF APPEAL PETITION DATED 25.1.2006 EXHIBIT P5 TRUE COPY OF PROCEEDINGS DATED 5.2.2007 EXHIBIT P6 TRUE COPY OF THE RELINGUISHMENT LETTER DATED 28.05.2012.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 NIL EXHIBIT R2 NIL EXHIBIT R3 A TRUE COPY OF THE REPORT OF THE INQUIRY OFFICER DATED 12.03.2005 EXHIBIT R3 B TRUE COPY OF THE SUBMISSION SUBMITTED BY THE PETITIONER DATED 24.08.2005 EXHIBIT R3 C TRUE COPY OF THE LETTER OF THE ASSISTANT GENERAL MANAGER SENT TO THE PETITIONER DATED 28.03.2003 EXHIBIT R3 D TRUE COPY OF THE REPLY OF THE PETITIONER TO THE ASSISTANT GENERAL MANAGER DATED 20.05.2003** **MC** **(TRUE COPY) PA TO JUDGE**