REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5842  OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 16640 OF 2017)

STATE BANK OF INDIA & ORS. .....APPELLANT(S)

VERSUS

ATINDRA NATH BHATTACHARYYA & ANR. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

Leave granted.

2) The order of the Division Bench of the High Court at Calcutta dated

April 7, 2017 is the subject matter of challenge in this appeal.

3)  The respondent - Atindra Nath Bhattacharyya was charge sheeted

on December 28, 1999 containing 16 charges on the ground that

while working as Chief Manager of Baghbazar Branch of the Bank

from November 19, 1997 to September 9, 1998, he has committed

various  irregularities  pertaining  to  credit  and  local  clearing

instruments.   The inquiry  officer appointed conducted inquiry  in

respect of charges levelled against the respondent and submitted

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his  report  dated  January  14,  2002  to  the  Appointing  Authority

which was also forwarded to the respondent on April 12, 2002.  The

Appointing Authority found huge irregularities on the part of the

respondent  and imposed punishment of  removal  on  January  24,

2003.  The appeal was dismissed by the Appellate Authority on

April 19, 2005.   

4) The  respondent  filed  a  writ  petition  before  the  High  Court  at

Calcutta  wherein,  the  order  of  punishment  as  affirmed  by  the

Appellate Authority, was set aside by the Single Bench on January

13,  2016 on the ground that  the delinquent  was not  given any

opportunity to show cause in respect of the nature and quantum of

punishment.     

5) The appellant did not challenge the said order but instead called

the  respondent  vide  communication  dated  March  24,  2016  for

personal  hearing in  terms of  the direction of  the learned Single

Judge.  In response thereto, the respondent sent communication to

the Bank  on  March  31,  2016 that  he  has  challenged the  order

passed by the learned Single Bench, therefore, the Bank should not

proceed  in  respect  of  grant  of  opportunity  of  hearing.   The

appellant again called upon the respondent to appear for personal

hearing  vide  communication  dated  April  7,  2016  but  the

respondent  did  not  appear  for  personal  hearing  but  sent

communication to the Bank on April 13, 2016 that the Bank should

not proceed as he has filed an appeal.  The appellant, once again,

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called  upon  the  respondent  for  personal  hearing  vide

communication dated April  22, 2016 but the respondent did not

appear.  The intra-court appeal preferred by the respondent was

dismissed on April 7, 2017 but the Court directed the appellant to

grant another opportunity of hearing to the respondent to place his

version before the Appointing Authority.  It is the said opportunity

granted to the respondent which is the subject matter of challenge

in the present appeal.

6) Before the appeal could be decided on April 7, 2017, an order of

removal from service was passed on May 2, 2016 inter alia on the

ground that the respondent has committed serious lapses which

resulted to perpetration of frauds, such acts are in gross violation

of  extant  norms  of  the  Bank  and  resulted  undue  gain  to  third

parties.   

  7) Learned counsel for the appellant relied upon the judgment of this

Court in Bank of India v. Apurba Kumar Saha1 to contend that

the Bank employee who had refused to avail of the opportunities

provided to him in a disciplinary proceedings of defending himself

against  the  charges  of  misconduct  involving  his  integrity  and

dishonesty,  cannot  be  permitted  to  complain  later  that  he  had

been denied a reasonable opportunity of defending himself.  The

learned  counsel  for  the  appellant  also  relied  upon  a  reasoned

judgment passed by this Court in State Bank of India & Ors. v.

1  (1994) 2 SCC 615

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Mohammad Badruddin2 wherein it has been held as under:

“24.  The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such  punishments  have  attained  finality  in  the proceedings.  The requirement of second show cause notice  stands  specifically  omitted  by  42nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet  the  principle  of  natural  justice  being  the adverse material against the delinquent.  There is no mandatory  requirement  of  communicating  the proposed  punishment.  Therefore,  there  cannot  be any  bar  to  take  into  consideration  previous punishments  in  the  constitutional  scheme  as interpreted  by  this  Court.  Thus,  the  non- communication of  the previous punishments in the show  cause  notice  will  not  vitiate  the  punishment imposed.”

8) On the other hand, learned counsel for the respondent relied upon

an order passed by this Court in  State Bank of India & Ors.  v.

Ranjit Kumar Chakraborty & Anr.3 wherein the order of removal

was set aside for the reason that before imposing the punishment

of  major  penalty,  the  delinquent  was  not  heard.   In  response

thereto,  learned counsel  for  the  appellant  relied  upon judgment

passed by this Court in State Bank of India & Ors. v. B.R. Saini4

wherein said judgment was explained 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 held that the Appointing Authority could not  pass  an  order  imposing  a  major  penalty.  In  that case, the Disciplinary Authority sent the Records to the

2  Civil Appeal No. 5604 of 2019 decided on July 16, 2019 3  (2018) 12 SCC 807 4  (2018) 11 SCC 83

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Appointing  Authority  who  passed  order  of  “dismissal from service”. It is not clear from the judgment as to whether the delinquent officer in that case was given a notice by the Disciplinary Authority before the records were sent to the Appointing Authority. This Court held that even in the absence of any Rule requiring a notice to  be  given,  the  principles  of  natural  justice  would require an opportunity to the delinquent employee. It was  not  held  in  the  said  judgment  that  even  if  the Inquiry Report  was furnished and an opportunity  was given to the delinquent there is a further requirement of another opportunity before imposing the penalty. This Court found that before imposition of a major penalty the delinquent was entitled for an opportunity of being heard. The High Court  was wrong in holding that the delinquent employee is entitled for a notice before the penalty is imposed.

xx xx xx

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

9) We have heard the learned counsel for the parties and find that the

direction issued by the Division Bench to grant another opportunity

is not tenable in the facts of the present case.

10) The learned Single Bench has set aside the order of punishment as

well as the penalty order directing the employer to serve a notice

before imposing penalty.  The respondent avoided availing the said

opportunity when offered on March 24,  2016,  April  7,  2016 and

April  22,  2016.   Once  opportunity  has  been  granted  to  the

respondent, he is not entitled to another opportunity on the ground

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of compassion.  The only reasoning given by the Division Bench is

‘justice  demands’  that  the  respondent  be  given  one  last

opportunity  to  place  his  version.   The  respondent  has  lost  his

chance to put his version before the Competent Authority when

called upon by the Authority to do so.  Time and again opportunity

of  hearing  cannot  be  granted  on  the  pretext  of  justice.   The

delaying tactics cannot be rewarded in such a manner.  Once the

respondent has failed to avail of opportunity of hearing granted,

the Bank cannot be directed to give another opportunity for the

sake of justice.  Therefore, we find that the directions contained in

Para  18 of  the  judgment  passed by  the  Division  Bench  are  not

sustainable and the same are set aside.

11) The allegations of financial irregularities against the respondent run

into crores of rupees under multiple heads.  The inquiry officer has

found  ten  charges  proved  whereas  six  charges  have  not  been

proved.  Because  of  grave  and  serious  allegations  of  financial

irregularities, the order of removal cannot be said to be unjust.  

12) Even though,  the  judgment  of  the  learned Single  Bench finding

fault with the order of removal as affirmed in the appeal, cannot be

said to be justified in view of the judgment of this Court in the case

of  Mohammad Badruddin but since the Bank has not filed an

appeal  against  such judgment,  therefore,  the correctness  of  the

said judgment is not being examined in the present appeal which is

directed against judgment of Division Bench of Calcutta High Court.

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

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JULY 25, 2019.

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