Calcutta High Court
Kalyan Kumar Bhattacharya vs State Bank Of India And Anr on 17 January, 2025
OD-1
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/38/2019
KALYAN KUMAR BHATTACHARYA
VS
STATE BANK OF INDIA AND ANR.
BEFORE:
The Hon'ble JUSTICE SUBHENDU SAMANTA
Date : January 17, 2025
Appearance:
Mr. Anirban Majumder, Adv.
Mr. Rittick Chowdhury, Adv.
Mr. Sayantan Mullick, Adv.
,,,for the petitioner
Mr. Subrata Kr. Sinha, Adv.
Mr. S. Pal Chaudhuri, Adv.,
Ms. T. Paul, Adv.
Ms. S. Paul, Adv.
....for the respondents
The Court: The petitioner was an employee of State Bank of India who
joined in the bank on 12th August, 1969. During the tenure of his service, he
was promoted to Scale- I in the cadre as of Branch Manager. He was posted as
a Branch Manager, Shakespeare Sarani Branch, Calcutta. A spot audit was
conducted on 17th June, 1996 by the concerned Vigilance Department of the
Bank allegedly drawing serious irregularities in D.D. purchase and in
overdrafts in current account of its constituents M/s. Seraikella Glass Works
Limited. On 2nd August, 1996, the petitioner was suspended under the
provisions of Rule 68A(1)(a) of the State Bank of India Officers’ Service Rules.
2
Reply was made by the petitioner with the contention that all the acts were
done in good faith. However, the reply of the petitioner was not considered and
articles of charges were framed and served upon the petitioner. There were ten
articles of charges, on the basis of which disciplinary proceeding was initiated.
The disciplinary authority has passed the impugned order on 28 th September,
2021. The authority has passed the order as follows:
“I, General Manager (D&PB), as the Appointing Authority, have
carefully examined the Inquiry Report submitted by the Inquiring
Authority appointed to conduct the Inquiry in respect of the
charges levelled against Shri K. K. Bhattacharya, all the relevant
papers of the Inquiry and the submission of Shri Bhattacharya
dated 26.06.2001 on the Inquiry Report.
2. The Inquiring Authority has held that out of the 10 (ten) charges
levelled against Shri Bhattacharya, charge Nos. 1, 2, 3, 4, 5(a),
5(b) and 10 have been proved, charge No.6 has been partly
proved while charge Nos. 7, 8 and 9 have not been proved. I agree
with the findings of the Inquiring Authority. I observe that Shri
Bhattacharya allowed clean overdraft of huge amount far
exceeding his discretionary powers without proper appraisal or
documentation and without reporting the matter to the Controlling
Authority. He also negotiated high value cheques beyond his
discretionary powers some of which were returned unpaid but
were not debited to the relevant account. He has, thus, acted in a
reckless manner highly detrimental to the Bank’s interests and
has exposed the Bank to a financial loss of more than Rs.2.50
crores. After having applied my free and fair mind independently
to the full facts and circumstances of the case, I am of the
considered opinion that the ends of justice would be met if Shri
K.K. Bhattacharya, MMGS-III, (under suspension), is inflicted with
the penalty of “Dismissal” under Rule 67(j) of State Bank of India
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Officers Service Rules and I order accordingly. I further order that
the period of his suspension with effect from 03.08.1996 be
treated as such.”
Against the said order of dismissal, the petitioner has approached
before the Appellate Authority. The Appellate Authority after hearing the
petitioner has passed the order whereby affirmed the order passed by the
disciplinary authority as follows:
“8. Having gone through the appeal made by Shri Kalyan Kumar
Bhattacharya and the relevant documents that have led to the
Disciplinary Authority impose the punishment of “Dismissal”
under Rule 67(j) of the State Bank of India Officers’ Service Rules
(SBIOSR), I observe that the inquiry has been held strictly in
conformity with the Rules; the principle of natural justice have
been respected. The penalty decision has been arrived at after
due application of mind by the Disciplinary Authority. I am also in
agreement with the findings and decisions. It is observed that the
appellant showed undue favour to a borrower client by allowing
them facilities without making an assessment of their needs and
far in excess of the discretionary powers vested in him. He failed
to report to his superiors the fact of exercising powers and that
the conduct of the account was a cause for concern. That he
showed special favours to the client is evident from the fact that
returned cheques were either repurchased on were realised after
long delays. The allegation that he tampered with the computer
system to accommodate the borrower is held as established and
this only goes to prove that he continued to bestow undue favours
on this party. Moreover, he failed to protect the Bank’s interest by
not even completing documentation formalities. The Bank has
incurred a loss of substantial amount due to the actions of the
appellant, an officer with such seniority. The penalty imposed on
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him is just and fair. He has not advanced any new points in his
appeal that require deliberation. I am satisfied that the
proceedings were conducted fairly and the appellant was given
every opportunity to defend himself.
Having said so, I am drawn to the conclusion that the officer does
not merit any leniency for the actions that have jeopardized the
Bank’s interests. There is no case for revising the penalty
imposed on him. I confirm the same and order accordingly.”
It is the case of the petitioner that on the basis of self-same
irregularities, the CBI had started a case against the present petitioner which
was registered as R.C. No. 12 of 1997. The allegation by the CBI is identical to
that of the allegation raised against the present petitioner in the departmental
proceeding.
It is the case of the petitioner that the said R.C. No. 12 of 1997 was
registered before the learned Court of Special (CBI), Court No.2, Bichar
Bhawan, vide Special Case No.89/2011. Learned Special Judge after hearing
the parties and after perusing the evidences of the prosecution has disposed of
the said Special Case by acquitting the present petitioner after finding him not
guilty for the offence punishable under Section 120B read with Sections
420/468/467/471/201 of IPC and Section 13(1) (d) read with Section 13 (2) of
the Prevention and Corruption Act, 1998. The order of the Special Court is set
out as follows :-
“That the accused persons namely (1) Sri Kalyan Kumar
Bhattacharjee and (2) Sri Subhas Chandra Varshnei are found
not guilty for the offence punishable under section 120B read with
5Section 420, 468, 471, 201 of IPC and section 13(1)(d) read with
13(2) of Prevention of Corruption Act, 1988 and they are hereby
acquitted from this case under section 235(1) of Criminal
Procedure Code and they are hereby discharged from their
respective bail bonds.
Seized documents be returned to the offices from seized, after
expiry of the statutory period of appeal.”
It is the positive case of the petitioner that identical allegation was
raised against the petitioner before the learned Special Court. The evidences
were led by the CBI and huge documents were produced. The documents were
marked as Exhibits before the learned Special Court. He submits that the
witnesses who appeared before the disciplinary authority also appeared before
the Special Court but their evidences were totally dissimilar. On the basis of
the evidences, the learned Special Court has acquitted the petitioner and
discharged him from all the charges. It is the case of the petitioner that the
witnesses were under pressure of the authority of the respondent. Accordingly,
they have deposed in department proceeding at the behest of the respondent
authority (CBI). He submits that there are no materials to justify the order of
the disciplinary authority for dismissal of the present petitioner from the
service.
Learned counsel appearing for the petitioner further argued that the
financial loss as stated in the order of the disciplinary authority is not specific.
It has also argued on behalf of the petitioner that the order of the judicial
authority is more powerful and reliable than the order passed by the
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disciplinary authority. He submits that the disciplinary authority ought not to
have passed the order of dismissal against the present petitioner. It is the
argument of the learned counsel for the petitioner that, if there is any merit
regarding irregularities in dealing with the purchase of D.D. and Over Draft of
the current account of the constituent i.e. M/s Seraikella Glassworks Limited,
the judicial authority, learned Special Court under CBI, must have noticed the
same. The acquittal of the petitioner from the criminal case itself exonerate
him from all charges and it is proved that the finding and the order of the
disciplinary authority as well as the appellate authority of the State Bank of
India is illegal and not binding. In support of his contention, learned counsel
for the petitioner has cited some decisions :
1) G. M. Tank vs. State of Gujarat and Ors reported in AIR 2006
SC 2129,
2) Tara Singh vs. Union of India and Ors. reported in 2015 (3)
CLJ (CAL) 144
In Tara Singh (supra), Division Bench of this Court has held that
“15. We are armed with the decision reported in
MANU/SC/0082/2010 : (2010) 2 Supreme Court Cases 772
wherein the Hon’ble Apex Court held that at an enquiry officer is
a quasi-judicial authority and he is in the position of an
independent adjudicator. He is not supposed to be representative
of the department/disciplinary authority/Government, even in the
absence of the delinquent official, he is to see as to whether the
unrebutted evidence is sufficient to hold that the charges are
proved. Therefore, we have no option left with except to set aside
the impugned order. In the result, the instant appeal is allowed.
Judgment passed by the Learned Single Judge as well as the
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order of the disciplinary authority of C.I.S.F. are hereby set aside.
The appellant be restored in his original position in service, if he
has not attained the age of superannuation by this time and if he
had already attained the age of retirement, then in that case, all
financial benefits should be given to him, as if he was never
terminated, within three months from the date of communication
of this order.”
In G. M. Tank (supra) the Hon’ble Supreme Court has framed two
questions for determination which are set out hereinbelow :-
“1. Whether in the case of no evidence, the employee can be
dismissed from service?
2. Whether acquittal, absolutely on merits amounting to clear
exoneration of the appellant by the Special Court under the P.C.
Act does ipso facto absolve the appellant from the liability under
the disciplinary jurisdiction when the charges leveled against the
appellant in the departmental proceedings and the criminal
proceedings are grounded on the same set of facts, charges,
circumstances and evidence.”
In deciding those questions, the Hon’ble Supreme Court has held that:
“16. In our opinion, such facts and evidence in the department as
well as criminal proceedings were the same without there being
any iota of difference, the appellant should succced. The
distinction which is usually proved between the departmental and
criminal proceedings on the basis of the approach and burden of
proof would not be applicable in the instant case. Though finding
recorded in the domestic enquiry was found to be valid by the
Courts below, when there was an honourable acquittal of the
employee during the pendency of the proceedings challenging the
dismissal, the same requires to be taken note of and the decision
8in Paul Anthony’s case (supra) will apply. We, therefore, hold
that the appeal filed by the appellant deserves to be allowed.
17. In the instant case, the appellant joined the respondent in the
year 1953. He was suspended form service on 8.2.1979 and got
subsistence allowance of Rs.700/- p.m. i.e. 50% of the salary. On
15.10.1982 dismissal order was passed. The appellant has put in
26 years of service with the respondent i.e. from 1953-1979. The
appellant would now superannuate in February, 1986. On the
basis of the same charges and the evidence, the Department
passed an order of dismissal on 21.10.1982 whereas the
Criminal Court acquitted him on 30.1.2002. However, as the
Criminal Court acquitted the appellant on 30.1.2002 and until
such acquittal, there was no reason or ground to hold the
dismissal to be erroneous, any relief monetarily can be only w.e.f.
30.1.2002. But by then, the appellant had retired, therefore, we
deem it proper to set aside the order of dismissal without back
wages. The appellant would be entitled to pension.”
Learned counsel for the petitioner on the basis of the observation of the
Hon’ble Supreme Court in G.M. Tank has submitted that normally where the
accused is acquitted honourably and completely exonerated of the charges, it
would not be expedient to continue a departmental inquiry on the basis of very
same charges/grounds/evidences. He submits that the departmental inquiry
of the present petitioner though had been completed much prior to the
disposal of the Special Case, but the effect of disposal (acquittal) has always an
impact upon the order of the disciplinary authority.
On the above argument, learned counsel for the petitioner submits that
the order of the disciplinary authority, affirmed by the appellate authority of
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the State Bank of India, is devoid of merit and the same is required to be set
aside. The petitioner also prayed for retiral benefits as per the provisions of
law.
Learned counsel appearing on behalf of the State Bank of India initially
at the starting of argument raised a question of limitation. It is the argument
of the SBI that the order of the disciplinary authority was passed in the year
2001 and the appellate authority has affirmed the order in the year 2002.
Since the order had been passed, the petitioner never approached this Court
challenging the legality and propriety of those order. Suddenly, after disposal
of the Special Case initiated by the CBI, the petitioner has approached this
Court. Learned Counsel for the SBI submits that there is no explanation in
the petition itself regarding the inordinate delay in approaching this Court. In
support of his contention, learned counsel for the SBI has cited some decisions
which are as follows:
1. Chennai Metropolitan Water Supply and Sewerage Board and
Others vs. T. T. Murali Babu reported in (2014) 4 SCC 108.
2. Chairman, State Bank of India & Anr. vs. M.J. James reported
in AIR 2022 SC 582.
3. P.S. Sadasivaswamy vs. The State of Tamil Nadu reported in
AIR 1974 SC 2271.
Learned counsel for the SBI further argued that the petitioner never
raised before this Court any question recording the biasness and competency
of the disciplinary authority as well as the appellate authority.
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On all stages of the proceedings, the petitioner was given reasonable
opportunities of being heard. He further argued that it would reveal from the
proceedings that he was regularly represented before the disciplinary authority
at the time of hearing. Principles of natural justice had never been violated in
conducting the disciplinary proceeding by the State Bank of India. The
authorities allowed the petitioner to disclose his case as well as he was allowed
to depose and produce his witnesses.
It is the positive submission of the learned Counsel for the SBI that on
perusing the entire proceeding it would reveal that the State Bank of India has
properly conducted the proceeding according to the procedure established by
the Rule of State Bank of India. He submits that findings of the disciplinary
authority generally should not be interfered by the High Court in every
proceeding. He argued that the Hon’ble Supreme Court in Union of India and
Others v. P. Gunasekaran reported in AIR 2015 Supreme Court 545 had
set out the Rule whereby a disciplinary proceeding can be questioned before
the High Court:
“13. Despite the well-settled position, it is painfully disturbing to note that
the High Court has acted as an appellate authority in the disciplinary
proceedings, re-appreciating even the evidence before the enquiry officer.
The finding on Charge No.1 was accepted by the disciplinary authority
and was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot act as a second
court of first appeal. The High Court, in exercise of its powers under
Article 226/227 of the Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can only see whether:
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a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in
that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence
and merits of the case;
e. the authorities have allowed themselves to be influenced by
irrelevant of extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary
and capricious that no reasonable person could ever have
arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court
shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) Correct the error of fact however grave it may appear to
be;
(vii) Go into the proportionality of punishment unless it
shocks its conscience.”
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Learned Counsel for the State Bank of India also distinguishes the
judgment of G. M. Tank (Supra) by placing the reliance upon the judgment of
Hon’ble Supreme Court passed in State of West Bengal and Others. v.
Sankar Ghosh reported in (2014) 3 SCC 610:
“10. Mr. Nikhil Goel, learned counsel appearing for the respondent,
submitted that the Tribunal and the High Court have correctly applied the
ratio laid down by this Court in Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd., Sulekh Chand v. Commr. of Police and G.M. Tank v. State of
Gujarat and ordered reinstatement of the respondent. The learned
counsel also submitted that since the accused persons could not be
identified in the TI parade, their complicity could not be established.
Consequently, the acquittal of the respondent was an honourable
acquittal. Going by the various judicial precedents laid down by this
Court, the learned counsel submitted that the respondent was rightly
reinstated in service and the order passed by the Tribunal as well as the
High Court calls for no interference.”
Having heard learned Counsel for the parties and also considering the
materials and the observations of the Hon’ble Supreme Court, it appears to me
that there are two questions basically raised in the writ petition.
First one is – whether the petitioner was deprived to participate in the
proceeding when the disciplinary authority was deciding the matter of
irregularities.
In considering the entire pleadings of the parties as well as the affidavit-
in-oppositions, it appears to me that all 10 (ten) charges were framed and
served upon the petitioner before initiation of proceeding. The documents were
properly supplied upon the petitioner, though it has been alleged before this
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Court that the documents were not properly supplied, but it appears from the
recording of proceeding that all the documents were handed over to the
petitioner during the enquiry and the petitioner has never raised the question
of want of documents before the disciplinary authority. Finding all other
pleadings and records and the documents it appears to me that the petitioner
was given sufficient opportunity of being heard and to defend himself before
the disciplinary authority. The disciplinary authority has come to the
conclusion that due to the act of the present petitioner in reckless manner the
financial loss of the bank is more than Rs. 2.5 crores. The reason for financial
loss though unjustified in the order of the disciplinary authority but the
finding therein regarding the proving of charges, it appears to me that the
order of the disciplinary authority is reasonable and acceptable to the facts
and circumstances of this case.
On the above score, this Court being a writ Court which is not required
to interfere with the merit of the findings, is of view that the order passed by
the disciplinary authority and the appellate authority is not violative to the
principles of natural justice.
Following the observation of Hon’ble Supreme Court in P. Gunasekaran
(supra), it appears to me that the enquiry was held by the competent authority
and according to the procedure of law there is no violation of principles of
natural justice. The authority has allowed the petitioner to defend himself.
The evidences were admitted and no material evidences were denied. On that
score, I find no justification to interfere with the finding of the disciplinary
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authority as well as the appellate authority. Accordingly, the first point is
decided against the petitioner.
In considering the second point, as to whether the order passed by
Special Court constituted under Central Bureau of Investigation(CBI) and order
therein can affect the finding of disciplinary proceeding. In G. M. Tank
(Supra) the Hon’ble Supreme Court has held that evidences, witnesses and the
materials before the disciplinary proceeding are similar to that of the
evidences, materials supplied before the Judicial Authority (Court). It is the
view of the Hon’ble Supreme Court in the G. M. Tank (Supra) that order of
acquittal by the competent Court itself exonerates the appellant from all
charges framed in the departmental proceeding. The Hon’ble Supreme Court
in Sankar Ghosh (supra) had specifically held that if the charges are not
identical to that of the departmental proceeding as well as the criminal
proceeding, the High Court is not justified by holding that since the respondent
was acquitted by the criminal Court of the same charges, reinstatement was
automatic.
On perusing the observation of Hon’ble Supreme Court in G. M. Tank
(supra) vis-a-vis Sankar Ghosh (supra) it appears to me that whether same
charges, finding or evidences were placed before the Court of law or before the
departmental proceeding, is the deciding factor of this issue. It appears to me
that before initiation of the departmental proceeding, 10 (ten) charges were
framed, those charges were levelled regarding the irregularities conducted by
the present petitioner during his tenure as a Manager of the said bank under
Shakespeare Sarani Branch.
15
RC No.12 of 1997 is an FIR by the Central Bureau of Investigation (CBI)
against the present petitioner and others regarding charge of offences
punishable under Section 120B read with Section 420, 468, 471, 201 of IPC
and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
It is the observation of the learned Special Court (CBI) that the evidences
of prosecution are not convincing to substantiate the charge against the
present petitioner. The alleged offences under Section 120B/420/471 of IPC
have its separate ingredients to be proved. The said ingredients are not similar
to that of the charges framed and served by the State Bank of India upon the
petitioner.
In case of criminal charges, specific evidence which has to be proved by
the prosecution beyond reasonable doubt. The charges of the disciplinary
authority have to be proved under the principles of preponderance of
probabilities.
Considering the differences of proof of charges, I am of the view that the
charges as framed by the disciplinary authority against the present petitioner
are dissimilar to that of the charges framed by the CBI against the present
petitioner in RC No.12 of 1997. On that score, I make it clear that though the
evidence may be similar, but the effect to be proved before the two forums are
different.
Under the above observation, it appears to me that the observations of
the Hon’ble Supreme Court in G.M. Tank(supra) is not at all applicable in this
case. Thus, the point no.2 is also decided against the present petitioner.
16
Under the above observation, I find no justification to entertain the
present petitioner.
Accordingly, the instant writ petition being WPO No.38 of 2019 is
dismissed and disposed of.
During argument of learned Counsel for the petitioner has argued that
the retiral benefit of service of the petitioner was not paid by the State Bank of
India. It has been demonstrated before this Court that the petitioner is not
entitled to get the contribution to State Bank of India towards the provident
fund. It has also been argued by the respondent bank that the petitioner is
not entitled to get the pension. It has been specifically argued that the
petitioner may entitle to the gratuity subject to his application being made
before the authority.
The petitioner may apply for his retiral benefit before the State Bank of
India by making a specific application thereon. On such application, the State
Bank of India shall dispose of the application of the petitioner, according to
law, within six weeks from the date of the application.
I make it clear that this Court has not entered into the merit of the
entitlement of retiral benefit of the petitioner. The State Bank of India and the
Appellate Authority is at liberty to decide the matter, according to the law,
without being influenced by any order of this Court.
(SUBHENDU SAMANTA, J.)
Kc/mg/S. Pal.