M.B.Chandrasekharan v. State Bank of India & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **WP(C).No.24905 OF 2015(K)** ## **PETITIONER:** **M.B.CHANDRASEKHARAN AGED 57 YEARS, S/O.LATE BALAKRISHNAN NAIR, PALLATH HOUSE, MANAKODAM, CHENNAMANGALAM P.O., P IN-683 512, NORTH PARAVUR, ERNAKULAM DISTRICT, KERALA.** **BY ADVS. SRI.M.S.UNNIKRISHNAN SMT.CHITHRA.S.BABU SRI.C.DHEERAJ RAJAN SRI.JITHIN PAUL VARGHESE SMT.M.PPRIYANKA SMT.T.P.SHELNA** ## **RESPONDENTS:** - **1 STATE BANK OF INDIA LOCAL HEAD OFFICE, THIRUVANANTHAPURAM, PIN-695 001, REPRESENTED BY ITS CHIEF GENERAL MANAGER** - **2 THE ASSISTANT GENERAL MANAGER INQUIRING AUTHORITY, STATE BANK OF INDIA, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM, PIN-695 001.** - **3 THE GENERAL MANAGER DISCIPLINARY AUTHORITY, STATE BANK OF INDIA, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM, PIN-695 001.** - **4 THE CHIEF GENERAL MANAGER APPELLATE AUTHORITY, STATE BANK OF INDIA, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM, PIN-695 001.** - **5 THE DEPUTY MANAGING DIRECTOR C.D.O STATE BANK OF INDIA, CORPORATE HOUSE, STATE BANK BHAVAN, MADAM CAMA ROAD, MUMBAI, PIN-400 021** - **R1 BY ADV. SMT.BINDUMOL JOSEPH R1 BY ADV. SRI.B.S.SYAMANTHAK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24905 OF 2015(K) 2** ## **JUDGMENT** The petitioner, who was a Deputy Manager in the erstwhile State Bank of Saurashtra has approached this Court seeking the following prayers :- _'' (I) To call for records leading to Exhibit P3 and P6 and quash the same._ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent bank to reinstate the petitioner into service of the first respondent bank, on a retrospective basis._ _(iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent bank to grant the petitioner full pay to which he would have been entitled had he not been suspended, together with any allowance of which he was in receipt immediately prior to his suspension or may have been sanctioned subsequently and_ ## **WP(C).No.24905 OF 2015(K) 3** _made applicable to officers of the respondent bank and also to declare the period of absence from duty to be treated as period on duty.''_ 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Bank. 3. It is submitted by the learned counsel for the petitioner that the petitioner was a Deputy Manager of Thiruvananthapuram branch of the State Bank of Sourashtra. He was inflicted with the punishment of dismissal from service on the basis of the charge memo issued to him. It is submitted that five charges had been levelled against the petitioner. The petitioner submitted his written statement of defence, and a detailed oral ## **WP(C).No.24905 OF 2015(K) 4** enquiry was conducted. During the pendency of the proceedings, the State Bank of Saurashtra was merged with the State Bank of India and the proceedings was continued. Ext.P2 is the enquiry report. The charges against the petitioner were found to be partially proved. By Ext.P3 proceedings, the disciplinary authority considered the objection raised by the petitioner as against the report of enquiry as also his explanations and came to the conclusion that the charges which were found partly proved against the petitioner justified the imposition of penalty of dismissal from service. It was found that the petitioner had acted in a manner unbecoming of a bank official and that his indiscretions call for the **WP(C).No.24905 OF 2015(K) 5** ultimate punishment of dismissal. 3. Petitioner submitted Ext.P4 appeal against the penalty. It is stated that no orders were passed thereon. Thereafter, the petitioner submitted Ext.P5 request for review of the punishment awarded before the Deputy Managing Director of the State Bank of India. It is stated that Ext.P6 order has been issued refusing to interfere with the imposition of the penalty of dismissal. 4. The learned counsel for the petitioner would submit that there were three Managers in the Bank at the relevant time. The Senior Manager as well as the Assistant Manager were also proceeded against for the same offences. It is ## **WP(C).No.24905 OF 2015(K) 6** stated that the Branch Manager had been imposed with the penalty of dismissal from service while a lesser punishment was awarded to the Assistant Manager. It is the specific case of the petitioner that the Branch Manager had been examined by him as defence witness in the enquiry. The Branch Manager had specifically deposed that the transactions alleged against the petitioner had been done by the petitioner on the specific instructions of the Branch Manager. It is submitted that this aspect was pleaded by the petitioner in the enquiry as well and that the findings of the disciplinary authority would show that what was found against the petitioner were only indiscretions and that as such, the **WP(C).No.24905 OF 2015(K) 7** question whether the ultimate punishment of dismissal from service ought to have been inflicted on the petitioner had been specifically raised in the appeal as well as in the review petition. It is submitted that no orders have been passed in the appeal. The issue was considered only in the review petition preferred by the petitioner as Ext.P5. Ext.P6 order in review states that, though the petitioner had raised a ground that the Branch Manager had directed him to carry out the transactions alleged against him in the memo of charges and that as the petitioner had only carried out the instructions given to him, the said act was unbecoming of a Bank official, the petitioner ought to have reported any such wrong ## **WP(C).No.24905 OF 2015(K) 8** instructions to the higher authorities. The request of the petitioner for a modification of the punishment imposed was therefore turned down in Ext.P6. 5. The learned counsel for the petitioner would further submit that the amount due to the petitioner as earned leave surrender, provident fund dues as well as gratuity have been withheld without any justification. Relying on the provisions of the Payment of Gratuity Act, it is contended that in the absence of any findings as to causing of loss to the Bank or any act entailing forfeiture of gratuity in terms of Section 4(6) thereof, the act of the respondent in not paying gratuity due to the petitioner was **WP(C).No.24905 OF 2015(K) 9** completely untenable. It is further contended that the petitioner, having been a member of the State Bank of Sourashtra contributory provident fund scheme, amounts could not be withheld from the dues under the said scheme by the State Bank of India relying on the SBI Regulations. 6. A detailed counter affidavit has been placed on record by the respondents. It is contended that the enquiry had been held in perfect consonance with the principles of natural justice and the contentions raised by the petitioner had been specifically considered by the disciplinary authority as well as the reviewing authority. It is stated that ## **WP(C).No.24905 OF 2015(K) 10** the charges levelled against the petitioner had been proved in the disciplinary enquiry and that the petitioner had not been able to point out any serious irregularity in the conduct of the enquiry. It is further submitted that in the case of the Branch Manager who had been inflicted the same punishment, the said employee had approached this Court and by Ext.R1(a) judgment, the proceedings inflicting the punishment of dismissal had been upheld by this Court. This Court in Ext.R1(a) has considered the factual aspects of the matter and had come to the conclusion that the inflictment of punishment of dismissal on Branch Manager is not a punishment which would be shocking to the conscience of the Court ## **WP(C).No.24905 OF 2015(K) 11** which requires interference by this Court. It is further contended that the petitioner is not entitled to the payment of gratuity or provident fund in view of the fact that he has been dismissed from service. 7. The learned counsel for the petitioner places reliance on the decision of this court in **K.Jayachandran v. Canara Bank [1983 KHC 219]** to contend that the dismissal of an employee does not automatically disqualify him from receiving gratuity in terms of the Payment of Gratuity Act. A decision of Punjab and Haryana High Court is also relied on to contend that where earned leave encashment is payable for leave which accrued before ## **WP(C).No.24905 OF 2015(K) 12** the disciplinary proceedings were initiated, the employee would be entitled to such encashment irrespective of the disciplinary proceedings initiated against him. It is further stated that the leave encashment and amounts lying in credit in the provident fund cannot be withheld even where a punishment of dismissal is ultimately awarded. 8. Relying on the decision of the Apex Court in **Ranjit Thakur v. Union of India and others [1987 KHC 1117],** the learned counsel would further contend that where the punishment imposed is irrational and perverse, this Court would be justified in interfering and granting a lesser punishment taking note of the facts **WP(C).No.24905 OF 2015(K) 13** and circumstances of the individual cases. 9. I have considered the contentions advanced on both sides. The petitioner had been inflicted with the punishment of dismissal after conducting due enquiry. The petitioner has not been able to point out any serious illegality in the conduct of the disciplinary proceedings as against him. However, it is contended that in view of the specific admission made by the Branch Manager at the relevant time to the effect that the petitioner had committed misconduct alleged against him only on the basis of the specific direction issued by the Branch Manager, I am of the opinion that the issue of proportionality requires a consideration at the hands of the **WP(C).No.24905 OF 2015(K) 14** respondents. Though a review had been attempted by the petitioner, it is evident that this aspect of the matter, including the fact that the Branch Manager had tendered evidence on this aspect in the enquiry had not specifically taken note of in Ext.P6. 10. In the above view of the matter, there will be a direction to the respondents to consider the complaint of the petitioner on the question of proportionality of the punishment in view of the specific fact that what has been found against the petitioner are indiscretions and the charge of causing loss to the Bank have not been proved. Orders shall be passed after hearing the **WP(C).No.24905 OF 2015(K) 15** petitioner also, within a period of three months from the date of receipt of a copy of this judgment. 11. The request, if any, to be made by the petitioner for payment of gratuity provident fund and earned leave encashment shall also be appropriately considered by the respondents in accordance with law and orders passed within three months from the date of receipt of such written request. **==> picture [369 x 14] intentionally omitted <==** accordingly. ## **Sd/-** **ANU SIVARAMAN JUDGE** ACM / 29.8.2019 **WP(C).No.24905 OF 2015(K) 16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXT.P1- TRUE COPY OF THE RELEVANT EXTRACTS OF THE STATE BANK OF SAURASHTRA (OFFICERS) SERVICE REGULATIONS 1979** **EXHIBIT P2 EXT.P2- TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT ON 21.04.2010** - **EXHIBIT P3 EXT.P3- TRUE COPY OF THE ORDER DATED 11.8.2010 AND LETTER INTIMATING DISMISSAL FROM SERVICE OF THE PETITIONER** **EXHIBIT P4 EXT.P4- TRUE COPY OF THE APPEAL DATED 24.9.2010** **EXHIBIT P5 EXT.P5- TRUE COPY OF THE REVIEW PETITION DATED 18.8.2011 EXHIBIT P6 EXT.P6- TRUE COPY OF THE ORDER DATED PASSED BY THE 5TH RESPONDENT DATED 12.9.2012** **RESPONDENT'S EXHIBITS :-** **EXHIBIT R1(A)** **A TRUE COPY OF THE JUDGMENT DATED 16.2.2015 IN WP(C) NO.20712/2011**