STATE BANK OF INDIA & ORS. versus ATINDRA NATH BHATTACHARYYA & ANR. on 25 July 2019

STATE BANK OF INDIA & ORS.

v.

ATINDRA NATH BHATTACHARYYA & ANR.

(Civil Appeal No. 5842 of 2019)

JULY 25, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Doctrines/Principles: Principle of natural justice –Reasonable opportunity of hearing – On facts, writ petition byemployee challenging his removal from service – High Court setaside the order of punishment as well as penalty order, directingemployer to serve notice before imposing penalty – Thereafter,employer-bank served repeated notice for personal hearing toemployee, however, employee did not appear – In appeal by theemployee, the Division Bench however, again directed the employer-Bank to grant another opportunity of hearing to the employee – Onappeal held: Once opportunity has been granted to the employee,he is not entitled to another opportunity on the ground of compassion– Time and again opportunity of hearing cannot be granted on thepretext of justice – Delaying tactics cannot be rewarded in such amanner – Once the employee has failed to avail of opportunity ofhearing granted, the Bank cannot be directed to give anotheropportunity – Thus, the directions issued by the Division Bench togrant another opportunity not sustainable and is set aside – In viewof grave and serious allegations of financial irregularities againstthe employee, the order of removal cannot be said to be unjust.

Allowing the appeal, the Court

HELD: 1.1 The respondent avoided availing theopportunity when offered thrice. Once opportunity has beengranted to the respondent, he is not entitled to anotheropportunity on the ground of compassion. The only reasoninggiven by the Division Bench is ‘justice demands’ that therespondent be given one last opportunity to place his version.The respondent lost his chance to put his version before theCompetent Authority when called upon by the Authority to do

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Aso. Time and again opportunity of hearing cannot be granted onthe pretext of justice. The delaying tactics cannot be rewarded insuch a manner. Once the respondent has failed to avail ofopportunity of hearing granted, the Bank cannot be directed togive another opportunity for the sake of justice. Therefore, thedirections issued by the Division Bench to grant anotherBopportunity are not sustainable and the same are set aside.[Para 10] [774-D-F]

1.2 The allegations of financial irregularities against therespondent run into crores of rupees under multiple heads. Theinquiry officer found ten charges proved whereas six charges haveCnot been proved. Because of grave and serious allegations offinancial irregularities, the order of removal cannot be said to beunjust. [Para 11] [774-F-G]

1.3 Even though, the judgment of the Single Bench findingfault with the order of removal as affirmed in the appeal, cannotDbe said to be justified in view of the judgment of this Court in thecase of *Mohammad Badruddin but since the Bank has not filedan appeal against such judgment, therefore, the correctness ofthe said judgment is not being examined in the appeal which isdirected against judgment of Division Bench of High Court.E[Para 12] [774-G-H; 775-A]

Bank of India v. Apurba Kumar Saha (1994) 2 SCC615 ; *State Bank of India & Ors. v. MohammadBadruddin 2019 (7) JT 288 ; State Bank of India &Ors. v. Ranjit Kumar Chakraborty & Anr. (2018) 12FSCC 807 ; State Bank of India & Ors. v. B.R. Saini(2018) 11 SCC 83 - referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5842of 2019.

From the Judgment and Order dated 07.04.2017 of the High Courtat Calcutta in in CAN No. 8866 of 2016 in FMA No. 1898 of 2016.

Sanjay Kapur, Kauser Husain, Ms. Megha Karnwal, Ms. ShubhraKapur, Advs. for the Appellants.

Anand, Abhijit Sengupta, Kumar Neeraj, Ms. Rajeshri N. Reddy,Advs. for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The order of the Division Bench of the High Court at Calcuttadated April 7, 2017 is the subject matter of challenge in this appeal.

3. The respondent - Atindra Nath Bhattacharyya was chargesheeted on December 28, 1999 containing 16 charges on the ground thatwhile working as Chief Manager of Baghbazar Branch of the Bankfrom November 19, 1997 to September 9, 1998, he has committed variousirregularities pertaining to credit and local clearing instruments. Theinquiry officer appointed conducted inquiry in respect of charges levelledagainst the respondent and submitted his report dated January 14, 2002to the Appointing Authority which was also forwarded to the respondenton April 12, 2002. The Appointing Authority found huge irregularities onthe part of the respondent and imposed punishment of removal on January24, 2003. The appeal was dismissed by the Appellate Authority on April19, 2005.

4. The respondent filed a writ petition before the High Court atCalcutta wherein, the order of punishment as affirmed by the AppellateAuthority, was set aside by the Single Bench on January 13, 2016 on theground that the delinquent was not given any opportunity to show causein respect of the nature and quantum of punishment.

5. The appellant did not challenge the said order but instead calledthe respondent vide communication dated March 24, 2016 for personalhearing in terms of the direction of the learned Single Judge. In responsethereto, the respondent sent communication to the Bank on March 31,2016 that he has challenged the order passed by the learned Single Bench,

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Atherefore, the Bank should not proceed in respect of grant of opportunityof hearing. The appellant again called upon the respondent to appearfor personal hearing vide communication dated April 7, 2016 but therespondent did not appear for personal hearing but sent communicationto the Bank on April 13, 2016 that the Bank should not proceed as he hasfiled an appeal. The appellant, once again, called upon the respondentBfor personal hearing vide communication dated April 22, 2016 but therespondent did not appear. The intra-court appeal preferred by therespondent was dismissed on April 7, 2017 but the Court directed theappellant to grant another opportunity of hearing to the respondent toplace his version before the Appointing Authority. It is the said opportunityCgranted to the respondent which is the subject matter of challenge in thepresent appeal.

6. Before the appeal could be decided on April 7, 2017, an orderof removal from service was passed on May 2, 2016 inter alia on theground that the respondent has committed serious lapses which resultedDto perpetration of frauds, such acts are in gross violation of extant normsof the Bank and resulted undue gain to third parties.

7. Learned counsel for the appellant relied upon the judgment ofthis Court in Bank of India v. Apurba Kumar Saha[1] to contend thatthe Bank employee who had refused to avail of the opportunities providedEto him in a disciplinary proceedings of defending himself against thecharges of misconduct involving his integrity and dishonesty, cannot bepermitted to complain later that he had been denied a reasonableopportunity of defending himself. The learned counsel for the appellantalso relied upon a reasoned judgment passed by this Court in State Bankof India & Ors. v. Mohammad Badruddin[2] wherein it has been heldFas under:

“24. The previous punishments could not be subject matter of thecharge sheet as it is beyond the scope of inquiry to be conductedby the Inquiry Officer as such punishments have attained finalityin the proceedings. The requirement of second show cause noticeGstands specifically omitted by 42[nd] Amendment. Therefore, theonly requirement now is to send a copy of Inquiry Report to thedelinquent to meet the principle of natural justice being the adverse H

1 (1994) 2 SCC 615

2 Civil Appeal No. 5604 of 2019 decided on July 16, 2019

material against the delinquent. There is no mandatory requirementof communicating the proposed punishment. Therefore, therecannot be any bar to take into consideration previous punishmentsin the constitutional scheme as interpreted by this Court. Thus,the non-communication of the previous punishments in the showcause notice will not vitiate the punishment imposed.”

8. On the other hand, learned counsel for the respondent reliedupon an order passed by this Court in State Bank of India & Ors. v.Ranjit Kumar Chakraborty & Anr.[3] wherein the order of removal wasset aside for the reason that before imposing the punishment of majorpenalty, the delinquent was not heard. In response thereto, learned counselfor the appellant relied upon judgment passed by this Court in StateBank of India & Ors. v. B.R. Saini[4] wherein said judgment wasexplained and held as under:

“9. In State Bank of India v. Ranjit Kumar Chakraborty (supra)which is the basis of the judgment of the High Court, it was heldthat the Appointing Authority could not pass an order imposing amajor penalty. In that case, the Disciplinary Authority sent theRecords to the Appointing Authority who passed order of“dismissal from service”. It is not clear from the judgment as towhether the delinquent officer in that case was given a notice bythe Disciplinary Authority before the records were sent to theAppointing Authority. This Court held that even in the absence ofany Rule requiring a notice to be given, the principles of naturaljustice would require an opportunity to the delinquent employee.It was not held in the said judgment that even if the Inquiry Reportwas furnished and an opportunity was given to the delinquentthere is a further requirement of another opportunity beforeimposing the penalty. This Court found that before imposition of amajor penalty the delinquent was entitled for an opportunity ofbeing heard. The High Court was wrong in holding that thedelinquent employee is entitled for a notice before the penalty isimposed.

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3 (2018) 12 SCC 807

4 (2018) 11 SCC 83

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A11. In this case, the Respondent had sufficient opportunity torespond to the Report of the Inquiring Authority and to the findingsof the Disciplinary Authority disagreeing with the InquiringAuthority regarding Charge Nos. 6 and 8. He is not entitled toany further notice before imposition of a penalty. Apart from therequirement of a second show-cause notice before imposition ofBpenalty no other point was raised in this Appeal.”

9. We have heard the learned counsel for the parties and find thatthe direction issued by the Division Bench to grant another opportunityis not tenable in the facts of the present case.C10. The learned Single Bench has set aside the order of punishment

C10. The learned Single Bench has set aside the order of punishmentas well as the penalty order directing the employer to serve a noticebefore imposing penalty. The respondent avoided availing the saidopportunity when offered on March 24, 2016, April 7, 2016 and April 22,2016. Once opportunity has been granted to the respondent, he is notentitled to another opportunity on the ground of compassion. The onlyDreasoning given by the Division Bench is ‘justice demands’ that therespondent be given one last opportunity to place his version. Therespondent has lost his chance to put his version before the CompetentAuthority when called upon by the Authority to do so. Time and againopportunity of hearing cannot be granted on the pretext of justice. TheEdelaying tactics cannot be rewarded in such a manner. Once therespondent has failed to avail of opportunity of hearing granted, the Bankcannot be directed to give another opportunity for the sake of justice.Therefore, we find that the directions contained in Para 18 of the judgmentpassed by the Division Bench are not sustainable and the same are setaside.F

11. The allegations of financial irregularities against the respondentrun into crores of rupees under multiple heads. The inquiry officer hasfound ten charges proved whereas six charges have not been proved.Because of grave and serious allegations of financial irregularities, theorder of removal cannot be said to be unjust.G

12. Even though, the judgment of the learned Single Bench findingfault with the order of removal as affirmed in the appeal, cannot be saidto be justified in view of the judgment of this Court in the case ofMohammad Badruddin but since the Bank has not filed an appeal STATE BANK OF INDIA v. ATINDRA NATH BHATTACHARYYA[HEMANT GUPTA, J.]

against such judgment, therefore, the correctness of the said judgment isnot being examined in the present appeal which is directed againstjudgment of Division Bench of Calcutta High Court.

13. In view thereof, the present appeal is allowed.

Nidhi Jain

Appeal allowed.

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