Hon'ble Mr. Justice Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4037 OF 2019
[Arising out of SLP(C) No.16555 of 2018]
NARESH CHANDRA BHARDWAJ ….APPELLANT
Versus
BANK OF INDIA & ORS. ….RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Leave granted.
2. The appellant was employed with respondent No.1/Bank of India
(for short ‘Bank’) as Scale II Officer when he sanctioned three loans
while posted at the Lal Bangla Branch of the Bank at Kanpur. The
appellant was also the recommending authority for two loans at Harsh
Nagar Branch, once again, at Kanpur. These loans were ultimately
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classified as Non-Performing Assets (‘NPAs’) and the process of granting
these loans was scrutinised by the Bank when various procedural
abnormalities were found, which were likely to cause a loss to the Bank
of Rs.70.32 lakh.
3. In pursuance of the disciplinary proceedings initiated the appellant
was visited with the major penalty of removal from service which shall
not be disqualification for future employment upon the appellant. The
endeavour of the appellant to assail the proceedings visiting him with
these adverse consequences have throughout been unsuccessful including
vide impugned order dated 25.10.2017.
4. On 4.7.2018 the only aspect which persuaded this Court to issue
notice was with respect to the quantum of penalty. This was on the basis
of the submission advanced by learned counsel for the appellant that
there were two other cases of officers, one Mr. R.K. Mishra and other Mr.
V.K. Srivastava where also similar losses had been caused on account of
the same party and they had been visited with the punishment of
compulsory retirement. In effect the appellant sought that on parity he
should be also visited only with the punishment of compulsory
retirement.
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5. On the respondents entering appearance, learned counsel for the
respondent sought to obtain instructions whether the punishment could be
so altered to compulsory retirement on parity with the other two
delinquent employees. A counter affidavit has been filed in this behalf
which opposes the request made on behalf of the appellant. That is the
limited contour of controversy we have to examine in the present case.
6. It is trite to say that the domain of the courts on the issue of
quantum of punishment is very limited. It is the disciplinary authority or
the appellate authority, which decides the nature of punishment keeping
in mind the seriousness of the misconduct committed. This would not
imply that if the punishment is so disproportionate that it shocks the
conscience of the court the courts are denuded of the authority to
interfere with the same. Normally even in such cases it may be
appropriate to remit the matter back for consideration by the
disciplinary/appellate authority. However, one other cause for
interference can be where the plea raised is of parity in punishment but
then the pre-requisite would be that the parity has to be in the nature of
charges made and held against the delinquent employee and the conduct
of the employee post the incident. It is the latter aspect which is sought
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to be advanced by learned counsel for the appellant by relying upon the
judgment in Rajendra Yadav v. State of Madhya Pradesh & Ors.1
On
this very aspect learned counsel for the respondents drew out attention to
a subsequent judgment in Lucknow Kshetriya Gramin Bank (Now
Allahabad, Uttar Pradesh Gramin Bank) & Anr. v. Rajendra Singh2
which had taken note of the earlier judgment referred to aforesaid.
7. There is really no difference in the proposition, which is sought to
be propounded except that in the latter judgment the principles have been
succinctly summarised in the last paragraph of the judgment, which read
as under:
“19. The principles discussed above can be summed up and
summarized as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the
quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities.
19.2. The Courts cannot assume the function of
disciplinary/departmental authorities and to decide the quantum of
punishment and nature of penalty to be awarded, as this function is
exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in cases
where such penalty is found to be shocking to the conscience of
1 (2013) 3 SCC 73
2 (2013) 12 SCC 372
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the Court.
19.4. Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed against
the delinquent employee, the appropriate course of action is to
remit the matter back to the disciplinary authority or the appellate
authority with direction to pass appropriate order of penalty. The
Court by itself cannot mandate as to what should be the penalty in
such a case.
19.5. The only exception to the principle stated in para (d) above,
would be in those cases where the co-delinquent is awarded lesser
punishment by the disciplinary authority even when the charges of
misconduct was identical or the co-delinquent was foisted with
more serious charges. This would be on the Doctrine of Equality
when it is found that the concerned employee and the codelinquent are equally placed. However, there has to be a complete
parity between the two, not only in respect of nature of charge but
subsequent conduct as well after the service of charge sheet in the
two cases. If co-delinquent accepts the charges, indicating remorse
with unqualified apology lesser punishment to him would be
justifiable.”
(emphasis supplied)
8. The principle, thus, culled out is that remitting a matter on the
issue of quantum of punishment would be as set out in para 19.5
aforesaid, i.e., where a co-delinquent is awarded lesser punishment by
the disciplinary authority even when the charges of misconduct were
identical or the co-delinquent was foisted with more serious charges.
This is based on the principle of equality but then there has to be an
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absolute parity.
9. We now proceed to analyse the facts of the present case in the
contours of the aforesaid principles.
10. If we look to the case of the other two officers, the likely loss to
the Bank was assessed in the range of about Rs.77.70 lakh in the case
of Mr. R.K. Mishra and Rs.39.74 lakh in the case of Mr. V.K.
Srivastava. The amount is, at least, not very different from one as in
the case of Mr. R.K. Mishra. However, what is more important is the
role performed. Mr. R.K. Mishra and Mr. V.K. Srivastava were both
the sanctioning authorities in respect of the loans in questions and
there were four loans each involved in the case of both the officers. In
the case of the appellant, he was the sanctioning authority in three
loans while he was the recommending authority in two loans.
11. In order to appreciate this aspect, we would first refer to the
findings on the charges against the appellant. It is noteworthy that no
mala fide was proved. It was found that one Mr. Vikram Dixit alias
Mr. Vinny Sondhi was the key person who is a cheat and has
defrauded many organisations by proving his identity through
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different identity cards acquired by him fraudulently. Third important
aspect is that the approved advocates and valuers submitted a report
which was relied upon by the Bank officials. These actually appear to
be a common thread in all the three cases.
12. Now turning to the recommendations of the Chief Vigilance
Officer dated 20.8.2009, it would be relevant to reproduce para 6.2,
which reads as under:
“6.2 The DA has recommended imposition of the major penalty
of “Compulsory Retirement” on all the three Officers. On
perusal of the records, we find that S/Shri V.K. Srivastava and
R.K. Mishra are P.F. optees and Shri N.C. Bhardwaj is a
pension optee. Earlier, we had proposed “Removal from
Service” in respect of all the three Officer, looking to the fact
that in case compulsory retirement is imposed on Shri
Bhardwaj, he would be entitled for compulsory retirement
person. Looking to the seriousness of the acts of misconduct
committed by Shri Bhardwaj, we feel that “Removal from
Service” should be the appropriate penalty in his case. It is so
because apart from his involvement as recommending authority
in 2 cases at Harsh Nagar Branch, he had sanctioned 3 more
loans from Lal Bangla Branch to accommodate the same party
i.e., Shri Vikram Dixit.”
13. A reading of the aforesaid shows that while earlier the proposal
was for removal from service for all the three officers, in respect of
other two officers it was converted into compulsory retirement while
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not doing so in the case of the appellant. The rationale is stated to be
the seriousness of the acts of misconduct of the appellant and the fact
that he was the recommending authority in two cases and the
sanctioning authority in three other cases. However, the real reason
comes out from the earlier part of the paragraph, which is that while
the other two officers were provident fund optees, the appellant was a
pension optee. It is, however, not explained in any of the pleadings
before us as to what is the financial ramification in respect of the two
options and as to whether the appellant would get a greater financial
benefit by reason of being a pension optee.
14. It is difficult for us to accept that there is any difference in the
conduct of the three officers as would justify this differentiation in
punishment. The most important fact in this behalf to notice is that as
per the counter affidavit submitted by the respondents, in their own
wisdom they have agreed to grant compassionate allowance to the
appellant, which is 2/3rd of the full pension as would be payable to
him had the punishment of removal from service not been imposed on
him. What is also important to note is that it is further submitted in
the same paragraph 8.2 that even if the punishment is modified to
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compulsory retirement the appellant would receive 2/3rd of the full
pension which is equivalent to the 2/3rd of the full pension as received
for compassionate allowance. The appellant has been given the
maximum benefit under Regulations 31 & 33 of the Pension
Regulations 1995 dealing with compassionate allowance.
“8.2. …...It is further submitted that even in case a punishment of
“Removal from service” is imposed upon the Petitioner is modified
to that of “Compulsory Retirement”, he would receive 2/3rd of the
Full Pension, which is equivalent to the 2/3rd of Full Pension which
he is receiving at present as a “Compassionate Allowance.””
15. We fail to appreciate that once there is no financial difference
and the role is practically identical, why the respondents hesitated
themselves to convert the punishment inflicted on the appellant from
one of “removal from service which shall not be disqualification for
future employment” to “compulsory retirement.” The only aspect is
the nature of punishment which appears to tar the appellant more than
the other two officers without any financial implication for the
respondent-Bank.
16. In the aforesaid facts & circumstances, we are, thus, inclined to
accept the plea of the appellant to convert his punishment in terms
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aforesaid to one of “compulsory retirement.”
17. The appeal is accordingly allowed leaving the parties to bear
their own costs.
...……………………………J.
[Sanjay Kishan Kaul]
..….….…………………….J.
[Indira Banerjee]
New Delhi.
April 22, 2019.
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