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  co- delinquent 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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