Judgment:
Dipankar Datta, J.
1. The petitioner, at the material time, while holding the post of Deputy Manager (Law) of State Bank of India (hereafter the Bank) was posted at its Bidhannagar Zonal Office. Disciplinary proceeding was initiated against him vide charge-sheet dated 9th May, 2000 issued by the Deputy General Manager, Zonal Office of the Bank, being his disciplinary authority. The charges read as follows :
(i) you did not declare in your statement of Assets and Liabilities as on 31.03.97 submitted to the Bank a land measuring 7 Cottah 7 Chattak 13 sq. ft. (arround 500 sq. metre.) at 226/5/1 N.S.C. Bose Road, Calcutta 700 092 purchased by your wife, Smt. Nibedita Pattanayak, along with one Smt. Mita Ghosh on 30.09.96 at cost of Rs. .4 lacs, for the purpose of promotion and developing.
(ii) You did not intimate in writing to the Competent Authority regarding acquisition of the abovementioned immovable property in the name of your wife..
(iii) You did not disclose the amount of Rs. 1.90 lac received by your wife in April 1990 from your brother-in-law in the Statement of Assets & Liabilities submitted to the Bank in the succeeding years.
(iv) you along with your wife received possession of 4 number of flats from the Proprietor, Glove Construction, Calcutta and signed the receipt as joint owner along with your wife, Smt. Nibedita Pattanayak, on 01.06.98 and you did not mention the properties in your statement of Assets and Liabilities as on 31.03.99.
(v) you were directly involved in the deal between your wife and M/s. Globe Construction, the developer because you signed as a witness in the Registered General Power of Attorney executed by your wife and her friend on 08.05.97 in favour of the developer and you also signed as a witness in the Deed of Agreement executed between the above parties on 12.11.98.
2. It was mentioned therein that the charges, if proved, would be deemed to constitute misconduct punishable under Rule 67 of the State Bank of India Officers Service Rules (hereafter the Service Rules), and would be construed as a breach of Rules 50(1), 50(3) and 50(4) thereof.
3. Since the petitioner in his reply to the charges denied that he had in any manner acted in contravention of the Service Rules, an enquiry followed. Upon conclusion of enquiry, the Enquiry Officer submitted his report along with covering letter dated 20th October, 2001. On the basis of evidence led by the management and the petitioner as well as materials on record, he returned findings that all the charges levelled against him stood established.
4. It would be worthwhile to reproduce below the findings arrived at by the Enquiry Officer in respect of each of the five charges. They read :
Analysis & Inference :
Charge (i) - During examination-in-chief by the PO, PW-1 has confirmed that in the statements of Assets & Liabilities submitted by the CSO, there is no mention in any of them of the purchase on 30.09.96 of a parcel of land at 226/5/1, N.S.C. Bose Road, Cal.-92 by Smt. Nibedita Pattanayak, the wife of the CSO.
In the questionnaire (PEX-8) completed by the CSO during investigation by PW-2, the CSO has explicitly declared that Smt. Nibedita Pattanayak was only a house wife indicating that she had no independent source of income and that along with one Smt. Mita Ghosh, she had purchased a plot of land measuring 500 sqm. at 226/5/1, N.S.C. Bose Road, Cal-92.
Speaking in his own defence the CSO has quoted the relevant portion of Circular Letter (Per) 35/92 dt. 21.05.92 which, inter alia, states 'Properties owned or held by spouse or children which were not purchased from out of the funds of the officer, and continue to be owned by them need not be included', and has taken the plea (page 40) that as the property had been acquired out of the funds of his wife and her friend Mrs. Ghosh on 30.09.96, the same had not been disclosed by him in the annual statement of Assets & Liabilities/ This defence has been repeated by him at a later stage in his deposition (page-41).
It however seems highly unlikely that his wife, a simple housewife would undertake a venture of the size involved without the knowledge of the employee and the plea that the land was acquired out of funds from his wife's 'independent source of income', of which he had no knowledge, would also appear unacceptable, specially in view of the contradictory contentions of the CSO in that he has admitted having signed as a witness to the General PA on 08.05.97 and then denying any knowledge till 1999.
`Charge (ii)- During re-examination by the PO, PW-1 has confirmed that in terms of the extant provisions acquisition of immovable property in the name of any member of the employee's family, as also acquisition of movable property valued in excess of Rs. 5000/-needs to be intimated to the competent authority. This has been confirmed by PW-2 during his examination by the PO.
While speaking on his own behalf the CSO denied having any knowledge either of the acquisition of immovable property by his wife or of the terms and conditions of the agreement executed between the landowners and the developer. He added that he had come to know of the matters on 08.05.97 when he signed as a witness in the General PA.
As concluded in the previous charge, it is highly unlikely that while his wife was involved in such a huge deal with the developer, the CSO continued to be blissfully unaware of the fact...illegible...all the more unacceptable since the CSO has himself declared that his wife was a mere housewife, and in dealings of the nature involved it is natural that she would be dependent on the guidance of her husband.
Charge (iii) - During his examination by the PO, PW-1 has adduced (page-10) that the annual statements of Assets & Liabilities submitted by the CSO, there is no reflection of receipt of Rs. 1.9 lakhs by his wife from her brother. This has also been reiterated by PW-1 (page-15) during re-examination by the PO. During reexamination by the PO, PW-1 has adduced that the gifts of Rs. 1.9 lakhs received by Mrs. Pattanayak would not constitute an independent source of income.
During re-cross-examination by the CSO, PW-1 has not been able to respond specifically whether some (sic sum) of Rs. 1.9 lakhs received by Mrs. Pattanayak would be the fund of Mr. Pattanayak, the CSO, or whether it would be possible for the employee to advice his employers regarding funds of which the CSO has no knowledge or any control over.
The receipt of Rs. 1.9 lakhs by the wife of the CSO has also been confirmed by PW-2 during his examination by the PO, after making a reference to PEX-8 which is the declaration made by the CSO in response to the questionnaire given to him by PW-2 who was the investigating officer in the case. PW-2 has also confirmed that in PEX -8 the CSO has declared that the sum of Rs. 1.9 lakhs received by his wife was by way of 'Stridhan' property in terms of the deed of family agreement (PEX-9) dated 20.04.90.
It however seems highly unlikely that a sum of Rs. 1.9 lakhs was received by the wife of the CSO and he remained ignorant of the fact. It is presumed that the CSO and his family are not that affluent that receipt of the sum of Rs. 1.9 lakhs would escape the attention of the CSO. In the matter of intimating the competent authority, the plea of 'independent source of income' would also appear a bit farfetched.
Charge (iv) - During examination by the PO, PW-1 has adduced (page-11), on perusal of the annual statements of Assets & Liabilities submitted by the CSO in the relevant years, that there is no mention in any of them of receipt of possession of four flats along with his wife on 01.06.98.
In the completed questionnaire (PEX-8) submitted to PW-2, the investigating officer, the CSO has declared that four flats had been received by his wife from the proprietor of M/s. Globe Construction on 01.06.98. This has been confirmed by PW2 during examination by the PO (page 20). PW-2 has however adduced (page-22) during cross-examination by the CSO that in terms of the agreement with the developer the identified share of the owners would be handed over to them only.
During his examination by the PO, PW-3 has deposed (page-26) that possession of the four flats were received by the CSO and his wife on 01.06.98. In response to the query of the PO, PW-3 has clarified that he had delivered the flats to the CSO as he had felt that the CSO, who had always supervised the work and had instructed PW-3 during the process of construction, was the actual owner. PW3 also confirmed that the four flats received by the CSO and his wife, along with two car parking space, constituted the land-owner's share of the property in terms of the agreement between the parties.
PW-3 confirmed that at the time of handing over possession of the flats, the CSO & his wife were present along with some other persons. He however confirmed (page 39) that DEX-I had been issued by him.
While speaking on his own behalf the CSO said that on 01.06.98 at the time of receiving possession of the four flats he had merely been a witness to the transaction and had signed as such in the letter addressed to the developer acknowledging receipt of possession of four flats.
It is highly improbable that the CSO would write 'Received the possession in habitable condition' and affix his signature along with that of his wife, and subsequently claim that he had signed merely as a witness. Being a responsible official of the Bank and a Law Officer at that, it is highly unlikely that the CSO would be unaware of the implication of his signature in a material section of the relevant document (PEX-13).
Charge (v) - In his deposition during examination by the PO, PW-3 has confirmed that the signatures of the CSO appearing in the General PA dt. 08.05.97 (PEX-12), the letter dt. 01.06.98 from the CSO and his wife acknowledging receipt of possession of four flats (PEX-13) and in the agreement dt. 12.11.98 (PEX-14) were affixed in his presence. It has also been reiterated (page-31) by PW-3 during cross-examination by the CSO that the signatures on PEX-12 had been affixed in his presence and could be identified by him.
During re-examination by the PO, PW-3 confirmed that during settlement of the terms and drawing up PEX-11 & 12 it was the CSO who had dealt with the matter exclusive, using the term 'on my plot', leading PW-3 to the conclusion that the CSO was the actual owner. This fact was also re-confirmed by PW-3 (page-39) saying that neither Mr. Pattanayak nor Mrs. Ghosh was involved in the settlement of the ...illegible... agreement.
While speaking on his own behalf the CSO said that he was not involved directly in the deal between the landowners and the developer at the time of settlement of terms but had only been a witness to the events. The CSO has also narrated (page-41) that his wife along with her brother and Mrs. Ghosh had negotiated with the developer regarding construction of flats.
The deposition of PW-3 is materially significant in the matter, since he was the first person involved and at no stage during his cross-examination of the witness did the CSO attempt to overturn attempt to furnish any evidence in rebuttal.
Findings:
Accordingly, Charge (i) -is established
Charge (ii) -is established
Charge (iii) -is established
Charge (iv) -is established
Charge (v) -is established
5. The enquiry report was furnished to the petitioner seeking his comments thereon. By his representation dated 28th November, 2001, the petitioner contended, for reasons assigned therein, that the said report ought not to be accepted.
6. The appointing authority of the petitioner i.e. the General Manager (D & PB), to whom records of enquiry were forwarded by the disciplinary authority together with his recommendations, however, did not agree with the petitioner and by communication dated 3rd January, 2002, the appointing authority forwarded to him the final order passed in the disciplinary proceedings whereby 'the penalty of reduction to the grade of JMGS I at the stage at which you joined the Bank under Rule 67 (g)' of the Service Rules was inflicted on him.
7. The final order passed by the appointing authority dated 28th December, 2001 reads as follows :
Major penalty proceedings were initiated against Shri Monoranjan Pattanayak, Dy. Manager (Law), presently posted at Zonal Office, Bidhannagar, for alleged gross misconduct in connection with acquisition of properties by his wife and non-disclosure of the same in his Assets & Liabilities statement during his tenure as Dy. Manager (Law) at Zonal Office, Kolkata, from April 1991 to January 1999. Articles of Charge in terms of Kolkata Zonal Office letter No. DS/94/2000-2001 dated 09.05.2000 were issued and duly acknowledged by the charged official on 18.05.2000.
2. Reply to the charge sheet was not submitted within the stipulated period and an inquiry was ordered into the matter by the concerned Disciplinary Authority. The Inquiry Officer submitted his report on 20.10.2001 in which he concluded that all five charges levelled against Shri Pattanayak were proved.
3. Copy of the Inquiry Report was sent to the charged official, Shri Pattanayak for his comments and he submitted his reply to the Disciplinary Authority on 28.11.2001.
4. After perusal of the Inquiry Report, the reply submitted by the charged official and the recommendations made by the Disciplinary Authority, I have applied my free and fair mind. Having regard to the seriousness of the case and after a perusal of the service record of the official, Shri Pattanayak, I hereby opine that the ends of justice will be met if Shri Pattanayak, is inflicted with the following punishment : 'Reduction to the grade of JMGS I at the state at which he joined the Bank' in terms of Rule 67 (g) of State Bank of India Officers Service Rules 1992.
8. The petitioner carried the final order before the designated appellate authority by preferring a departmental appeal under Rule 67 of the Service Rules on 1st March, 2002. By an order dated 25th October, 2002, the Chief General Manager, Zonal Office being the appellate authority dismissed the appeal. Portions of the appellate order, which are considered relevant for a decision on the present petition, are extracted below :
I have gone through the records of the case in good detail and my observations are as follows :
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2. ***
3. He has attempted to dissociate himself from the property and financial dealings on the plea that his wife was competent to take decisions on her own. While this may be true, in dispassionate manner of speaking, I am reluctant to accept this in the instant case for the following reasons :
(a) the lady of the house was housewife depending on the husband for advice;
(b) the husband had the academic qualifications to render advice in such matters;
(c) the benefits of the deals did not end with the wife but it devolved on the family including the husband;
(d) the husband had documented some of the transactions and therefore he cannot plead ignorance of the contents of these transactions.
4. 'There is no provision to disclose the self acquired property of the wife in the Service Rules', he argues. This may appear to be true. But my interpretation of the situation is different. Rules require the employees to declare their assets and liabilities once every year. The Bank expects to know the quality of the employees' life style within the known or declared sources of income. Anything that alters this equilibrium must be declared in the Statement of Assets and Liabilities. In the instant case, Shri Pattanayak's life style has undergone a change by virtue of the properties acquired by his wife. He was, therefore, obliged to declare the status in the Assets and Liabilities Statement. He failed to do so. The question before me is whether his actions constituted misconduct. He is reported to have certified 'received the possession (of four apartments and parking space) in inhabitable condition' thereby admitting acquisition of property. He has later taken a stance that he witnessed the signature of his wife - an afterthought. He is a legally trained person who is expected to know the implications of his actions. I believe his actions can be termed as misconducts.
5.***
Finally as regards the penalty, since all the charges are proved the penalty seems in order. This would appear reasonable when seen from the fact that a Law Officer is flouting the rules and later using his legal knowledge to give a different interpretation. I believe the ends of justice have been met with the imposition of the impugned penalty. I confirm the same and order accordingly.
6.***
9. The, report of enquiry, the final order of the appointing authority imposing penalty and the appellate order constitute the subject matter of challenge in this petition.
10. I have heard Mr. Majumder, learned Counsel for the petitioner and Mr. Sen, learned Counsel for the Bank at length.
11. The order of the appointing authority, it is clear, was passed upon consideration of the recommendations of the disciplinary authority. However, the petitioner was not made aware of such recommendations and given opportunity to persuade the appointing authority not to accept it. Such action has been held by the Apex Court in two cases in which the Bank was a party [State Bank of India and Ors. v. D.C. Aggarwal and Anr. reported in : AIR 1993 SC 1197 and State Bank of India and Ors. v. Ranjit Chakraborty and Anr. reported in 2009 II LLJ 487 (SC)] as offending principles of natural justice. The order of penalty, passed in breach of principles of natural justice, therefore, is liable to be set aside.
12. In ordinary circumstances, I would have set aside the said order and remit the matter back to the appointing authority. However, having regard to the contention raised by Mr. Majumder, I propose to delve deeper into the issue for examining its worth.
13. There is no dispute that in the prescribed forms for disclosure of assets and liabilities, the petitioner had neither mentioned receipt of Rs. 1.90 lakh by Smt. Nibedita Pattanayak from her brother nor indicated acquisition of four flats by her subsequently upon development of the property. I shall assume that the petitioner was associated in the deal between the promoter and the owners of the property, i.e. Smt. Nibedita Pattanayak and Smt. Mita Ghosh. However, the question is whether by not disclosing the same the petitioner committed misconduct punishable under the Service Rules or not.
14. There is sufficient force in the contention of Mr. Majumder that the Enquiry Officer's findings and the appointing authority's order stand vitiated since (i) they did not address their mind at all to the basic question as to whether the acts forming the charges at all amounted to misconduct punishable under the Service Rules of the Bank; and (ii) they did not appreciate that acquisition of property by the petitioner's wife, not out of his own income, was not required to be disclosed in the Assets and Liabilities Statement. That apart, he is justified in his contention that the report of the Enquiry Officer suffers from perversity and the penal order is absolutely unreasoned, apart from suffering from the vice of offending natural justice principles, indicated above. Also, he seems to be correct in his stand that the appellate order itself vindicates the petitioner's point of view and, therefore, he did not deserve punishment.
15. Rule 62 of the Service Rules provides for submission of statement of assets and liabilities. Sub-Rules (2) and (3) thereof being relevant are quoted below :
62. (2): Every officer shall every year on a date to be specified by the Bank submit a return of his immovable property to the Bank.
62. (3): No officer shall, except under previous intimation in writing to the competent authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family.
Provided that the previous sanction of the competent authority shall be obtained by the officer if any such transaction is :
(a) with a person obligated to the Bank through official dealings with the officer;
(b) otherwise than through a regular or reputed dealer.
16. It is not disputed that the Assistant General Manager (Personnel & H.R.D.) of the Bank had issued a circular letter dated 21st May, 1992 laying down as follows :
As you are aware, detailed guidelines/instructions regarding submission of/dealing with the Statements of Assets and Liabilities have been communicated through various Circulars issued from time to time. For the sake of ready reference, we give below the summary of the extant instructions/provisions with necessary clarifications where necessary.'
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iii) Effective from March 31, 1991, every officer shall submit his statements of assets and liabilities on form I (for immovable property) and form II (for liquid assets, investments, movable properties, liabilities etc.) every year as on March 31 in terms of Rule 44(5) of State Bank of India (Supervising Staff) Service Rules.
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vii) Properties owned or held by spouse or children which were not purchased from out of the funds of the officer and continue to be owned by them need not be included.'
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xvi) The officers of the Bank, who have failed to submit their statements, have been advised time and again to submit the same. Non-compliance can no longer be permitted. Initiation of disciplinary proceedings for minor misconduct may be considered against those officers in Top Executive Grades and in Senior Management Grade Scale V, who have failed to submit their statements of assets and liabilities.
17. Bare perusal of the Service Rules, together with the forms in which disclosure of immovable property has to be made, reveal the Bank's intention to gather from an officer/employee information regarding any property that may have been acquired by him in his own name or in the name of any of his family members out of his own income. Such disclosure, made on yearly basis, is intended to act as a check against acquisition of an asset by an officer/employee disproportionate to his known source of income. Therefore, it was obligatory for the petitioner to disclose any property acquired out of his own income, either in his own name or in the name of any of his family members. The Service Rules, however, do not make it imperative for an officer/employee to disclose assets that might have been acquired by any of his family members out of their own income.
18. Keeping in mind the above, the findings of the Enquiry Officer, the penal order of the appointing authority and the appellate order have to be examined.
19. I have perused the enquiry proceedings. The manner in which the enquiry was conducted cannot be termed flawless. However, I do not wish to rest my ultimate conclusion on the basis of the noticed flaws. I shall assume that the findings of the Enquiry Officer, confined to the first three charges, are such that a reasonable person on the given facts could have reached. Notwithstanding the same, to my mind, the facts found proved in the enquiry in relation to the first three charges do not constitute commission of misconduct by the petitioner warranting penal action.
20. In respect of the facts forming part of the first two charges, to attract misconduct on the petitioner's part it was necessary for the Bank to lead evidence for the purpose of establishing that the immovable property i.e. the land, which was later on developed by Globe Construction, was purchased out of the income of the petitioner. This is so because on a reasonable construction of the Service Rules, it is imperative for an officer/employee to disclose acquisition of property, out of his income, in his name or in the name of any of his family members. Had it been proved in the enquiry that the immovable property had been purchased out of the petitioner's income, definitely he would have been liable to answer. No evidence having been led in the enquiry in this behalf, the conclusion that by the acts complained of the petitioner committed misconduct does not stand.
21. Similarly, the allegation of non-disclosure of receipt of Rs. 1.90 lakh by Smt. Nibedita Pattanayak in April, 1990 from the petitioner's brother-in-law, though correct on the factual aspect, does not per se constitute misconduct in the absence of any stipulation in the Service Rules to the effect that whatever amount is received in cash by a family member of an officer, the same should be disclosed in the statements of assets and liabilities.
22. In so far as the fourth charge is concerned, however, I am of the clear opinion that the Enquiry Officer returned a finding which is perverse. Contents of the document dated 1st June, 1998 (PEX 13) have been totally misconstrued by the Enquiry Officer. The finding of the Enquiry Officer, as recorded in the concluding paragraph of his decision pertaining to the fourth charge, that the petitioner wrote 'received the possession in habitable condition' affixing his signature and his subsequent claim that he had signed merely as a witness, does not withstand judicial scrutiny. It appears from PEX 13 that it was addressed to the Proprietor of Globe Construction and signed by Smt. Nibedita Pattanayak acknowledging 'Received the possession in habitable condition'. The body of the document reveals delivery of possession of four flats of which one was in unfinished condition. The document bears the signature of the petitioner as witness just above an endorsement that the owner is Nibedita Pattanayak. Viewed from the perception of a reasonable person, it is not possible to accept that PEX 13 could be read as one reflecting the petitioner as owners of the flats mentioned therein. If it were open to form two views on the contents of PEX 13 and the view of the Enquiry Officer could be considered a plausible view, I would not have interfered. But only one view could have been formed on the basis of its contents and the Enquiry Officer grossly erred in brushing aside the petitioner's defence as 'subsequent claim'. For the same reasons, the observation in the appellate order that the petitioner 'has later taken a stance that he witnessed the signature of his wife - an afterthought' must fall through.
23. Regarding the fifth charge, it appears that the Enquiry Officer based his findings relying on the deposition of PW-3, the promoter. Having regard to the fact that relations between the promoter and the owners of the property turned bitter and in all probability disciplinary proceeding against the petitioner was the outcome of a complaint lodged by the PW-3, which the Bank never disclosed in course of enquiry despite repeated pleas of the petitioner, I would consider the PW-3 to be an interested witness if, in fact, he was the complainant. The care and circumspection with which deposition of an interested witness requires appreciation has not been demonstrated in the present enquiry. However, instead of finding fault with the Enquiry Officer on this score and accepting that the petitioner was directly involved in the deal and as a corollary the allegation against him as mentioned in the article of charge stood established, does the act complained of constitute misconduct? I have not been shown any provision of the Service Rules that it does. The conclusion is thus obvious.
24. That the contention raised by the petitioner regarding lack of provisions in the Service Rules requiring disclosure of self acquired property of his wife could not be overruled by the appellate authority. He, however, expressed his own interpretation of the situation. His interpretation is a plausible one but at the same time, interpretation of the Service Rules by the petitioner has also been accepted by him to be a plausible view. If the Bank expects to know the quality of life style of its officers/employees upon alteration of equilibrium as a result of acquisition of assets by his/her spouse, it is at liberty to either amend the provisions of the Service Rules or to issue administrative instructions for achieving such purpose. But to hold that an officer/employee is obliged to do that without any express provision to that effect is to expect too much. The Appellate Authority ought to have realized that having regard to meteoric rise in corruption at all levels, in the present socio-economic scenario of the country the need to incorporate stringent provisions cannot be over emphasized. However, one has to accept with a pinch of salt that if there be lacuna in the Service Rules, it is the corrupt class that would spring into action to take advantage of the same. One would welcome measures to weed out corruption for the better interests of the society. But the manner in which the petitioner was punished leaves a lot to be desired. My order ought not to be construed as giving a clean chit to the petitioner. His replies at various stages of the proceedings, which without doubt were inconsistent, have left an indelible mark in my mind that all was not fair so far as the deal was concerned and the petitioner had not been candid. The Bank could have framed the charges differently if indeed it was serious enough to discipline the petitioner. At the same time, it has to be conceded that overzealousness to punish an apparently erring officer without adhering to law is also not commendable.
25. In view of the findings reached, I have not considered it necessary to examine Mr. Majumder's other contention that major penalty could not have been imposed on the petitioner having regard to the contents of the concluding paragraph of circular letter dated 21st May, 1992.
26. For the reasons aforesaid, the writ petition succeeds. The entire proceedings culminating in the final order of penalty as well as the appellate order stand set aside. The petitioner shall be entitled to all benefits, including promotion if so entitled according to law, as if no proceedings had ever been drawn up against him.
27. Parties, shall, however, bear their own costs.
28. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites there for.