Judgment · High Court · 2012

While Mr. Sarma, learned Sr. Counsel for the petitioner has submitted th 7. at the respondent Bank acted malafide in imposing the penalty of dismissal from service just at the eve of normal retirement of the petitioner from service, Mr. Goswami, learned Standing Counsel, Apex Bank has submitted that merely because the timing of the order of dismissal co-incided with the date of retirement of t he petitioner from service on attaining the age of superannuation, the same by i tself cannot lead to the inference that the same is founded on malafide exercise of power, more particularly, when there is no allegation of any malafide exerci se of power on the part of any particular officer of the respondent Bank. Mr. Sarma, learned Sr. Counsel for the petitioner submits that the defen 8. ce of the petitioner was prejudiced inasmuch as the required documents were not furnished. He further submits that in absence of any proof of misconduct committ ed by the petitioner in respect of the charges leveled against him, the responde nt Bank ought not to have held the petitioner guilty of the charges towards impo sing of extreme penalty of dismissal from service. He also submits that even if the charges leveled against the petitioner are held established, then also consi dering the fact that the petitioner was to retire from service on the next day o f the impugned order dated 27.6.2003, the disciplinary authority ought to have c onsidered that aspect of the matter towards imposing a lesser penalty to the pet itioner.

#9. Mr. Goswami, learned Standing Counsel, Apex Bank referring to the writte n argument submitted on 20.10.2011 submits that the enquiry having been conducte d following the due procedure and the petitioner virtually having admitted the c harges leveled against him, it is immaterial that the order of penalty was passe d just one day ahead of the date of retirement of the petitioner from service. A s regards the submission made by the learned counsel for the petitioner that a l esser penalty ought to have been imposed, he submits that it is for the discipli nary authority to decide as to what penalty should be imposed. According to him, considering the gravity of the charges, dismissal from service was the proper p enalty.

#10. Mr. Goswami, learned Standing Counsel, Apex Bank further submits that as per his telephonic instruction, irrespective of the order of dismissal from ser vice, the petitioner had been provided with the amounts pertaining to CPF and le ave encashment. However, he submits that in view of the order of dismissal, the petitioner is not entitled to any other benefits including the gratuity. On this , Mr. Sarma, learned Sr. Counsel for the petitioner submits that the respondent Bank is not the authority to withhold the gratuity amount without following the procedure laid down in Payment of Gratuity Act, 1972.

#11. I have considered the submissions made by the learned counsel for the pa rties and have also perused the entire materials on record. As to what were the charges leveled against the petitioner has been noted above. The petitioner in h is reply to the charges, interalia took the plea that there was instances in the past in the Bank in allowing withdrawal of amounts in respect of cash credit li mit exceeding the limit fixed. He also tried to justify his action in respect of the charge No. 3, which was purportedly misleading the sanctioning authority ab out actual status of ownership of the particular Tea Estate in reference to the agreement/ lease. Answering to the charge No. 6, the petitioner stated in his wr itten statement that the recommendation was made on the basis of the statement p repared by the Assistant Manager and that as per the prevalent practice, it was not necessary to check each and every position placed by junior officer. In resp ect of some other charges, the petitioner took the plea that since there was ins tances in the past that the allotment of different items had been transferred as per choice of the parties, there was nothing wrong in repeating the same by the petitioner. According to him, the distribution of the amount of drawing schedul e was not rigid one and the party could change their allotment. In respect of the charge No. 10, it was the plea of the petitioner that 12. allowing excess drawl was a regular practice of the Tea Advance Department of th e Bank. It was submitted that almost in every season accounts had exceeded drawa ls. Surprisingly, responding to the charge No. 14, the petitioner in his written statement had stated that change of Management (borrowers) without prior approv al of the Bank was not a new thing to the Bank.

#13. Dealing with the additional charges, the petitioner in his written state ment stated that the particular Tea Estate on many occasions had availed the ban k guarantee and thus there was nothing wrong on the part of the petitioner in pr oviding such bank guarantee.

#14. On a total reading of the written statement that was submitted by the pe titioner, what is seen is that the basic defence of the petitioner was that he h ad followed the past practice of the Bank. Another defence that was taken by the petitioner was that since such irregularity/illegalities in Bank transaction we re prevalent, there was nothing wrong in following the same by the petitioner. I n other words, it was the plea of the petitioner that if the Bank had allowed th e irregularities/illegalities in the past, the petitioner could not have been pi cked up for a differential treatment in following the same procedure that was fo llowed in the Bank on earlier occasions.

#15. lding the charge No. 1 has recorded the following finding: It is in the above context, the Enquiry Officer in his report while upho (cid:28)The allegation regarding overdrawal in the C/C.A/C. for the season 1996 was exa mined. Sri Paul, in his defence, contents that overdrawal was a practice followe d since inception and also provided a few instances in exhibits marked A.O.D.-6 containing 12 sheets. The enquiry feels that a Cash Credit limit fixed as a term of sanctioning letter is for the purpose of control over the Account which is t o be adhered to. Violation of a term of sanction cannot be justified with instan ces of violation, however prevalent the violations may be. The allegation under charge No. 1, therefore stands proved. (cid:29)

#16. Similar findings have been recorded in respect of some other charges. In this connection, the findings recorded in respect of Charge No. 3, 5, 7, 9 and 10 are as follows: (cid:28)Charge No. 3. - & & & & &. The contention of Sri Paul that the Bank has accepted t he status of Sri Barua as lessee of Timon Tea Estate in the Tripartite Agreement dated 13.8.97 does nto appear to have any ground as mere mention in an agreemen t as lessee does not bestow the status without a legally valid document. The enq uiry further finds that the Tripartite Agreement was executed and registered sub sequently on 31.8.97, probably on the basis of the Note dated 4.2.97 (exhibit No . M.D.-11) put up by Sri Paul wherein he mentioned that a Tripartite Agreement w as necessary with Bank. The agreement showing the status of Sri B.R. Baruva as l essee Timon Tea Estate appears to be the consequence of the Notes of Sri Paul ma intaining that the Tea Estate was leased out to Sri B.R. Baruva, on the basis of the registered agreement mentioned earlier. The documentary evidence under A.O.D.-9 furnished by Sri Paul is found to be not relevant to the charge under Charge No. 4. The enquiry finds that an agreement is an agreement which does not automatically bestow the lessor lessee relationsh ip, without a legally valid Lease Deed. Since no lease deed was executed, and lo ads were recommended to Sri B.R. Baruva against the Tea Estate on the status of a lessee, the allegation under Charge No. 3 is amply established. (cid:29) (cid:28)Charge No. 5. - Regarding allowing over drawal in excess of Cash Credit limit, Sri Paul has not denied the allegation, Sri Paul has ought to justify such exces s drawals on the plea of regular practice with examples. The enquiry is of the view that a limit fixed as a terms of sanction is for the purpose of adhering to it. Violation of a term of sanction on the plea of regula r practice cannot be considered as a ground for justifying an irregularity. On the basis of the above findings, the allegation under Charge No. 5 is found t o be established. (cid:29) (cid:28)Charge No. 7. - The submissions of the Presenting Officer with exhibits under M .D. 26 to M.D. 29 along with the replies thereto of the Accused Officer were exa mined. Sri Paul has not denied the excess drawals exceeding the C/C limit but so ught to justify his actions on the ground of regular practice followed on severa l occasions citing examples thereof. Except for contentions denying the allegati ons on the above ground, Sri Paul was unable to justify his actions with any oth er specific reasons during the course of enquiry. Allegations on allowing over d rawals exceeding the Cash Credit limit has been already established in the foreg oing charges under Charge No. 1 and Charge No. 5. The allegation under Charge No. 7 is therefore accordingly established. (cid:29) (cid:28)Charge No. 9. - & & & & & Reference to instances for similar action in other garden cannot justify an irregular action. As a consequence of not providing for green leaf in the drawing schedule, drawals against green leaf could not be checked a t Branch level against corresponding bills/invoices etc. thereby allowing M/s. M .R.B. & Associates to misutilise the fund. The allegation under Charge No. 9 is therefore fully established. (cid:29) (cid:28)Charge No. 10. - The allegation with submissions of Presenting Officer and the replies thereto of the Accused Officer are same as has been dealt with in the en quiry in foregoing charges with regard to allowing excess drawal exceeding the C ash Credit Limit. Since there is a limit fixed as per terms of sanction, quarry should have been made with justification for seeking the excess drawal by the pa rty. Sri Paul could not furnish any such reasons to the enquiry. The allegation therefore stands to be justified. (cid:29) The above observations of the Enquiry Officer in the Enquiry Report are 17. only illustrative and not exhaustive. It is in this context Mr. Goswami, learned Standing Counsel, Apex Bank submits that in view of clear admission on the part of the petitioner about the allegations made in the charges, the charges agains t him stood proved and the petitioner cannot harp upon the alleged irregularity in conducting the enquiry.

#18. As has been held by the Apex Court in Channabasappa Basappa Happali Vs. State of Mysore reported in AIR 1972 SC 32 admission of particular fact in the c harges amounts to admission of guilt. In that particular case a police officer a fter remaining absent from duty unauthorisedly, raised the technical pleas of co nducting the enquiry in an improper manner. Answering the said plea, the Apex Co urt held that when the facts stated in the charge had been admitted by the petit ioner, the technical plea of holding enquiry in an improper manner was not avail able. It was held that admission of fact amounts to admission of guilt. Mr. Sarma, learned Sr. Counsel for the petitioner submits that in view o 19. f the irregularity in conducting the enquiry which includes non-furnishing of do cuments and non-examination of witnesses, the entire proceeding was vitiated and consequently the disciplinary authority of the Bank could not have passed the i mpugned order. The admitted facts staring on the face of it cannot be ignored. I n the first chargesheet as many as 16 charges were leveled against the petitione r. In the second one, 6 more additional charges were leveled. All the charges in volved gross financial irregularity in the matter of Bank transaction with which the petitioner was entrusted. As to what was the plea of the petitioner in defe nding the charges has been noted above. On a bare perusal of the written stateme nt submitted by him would go to show that in almost all the charges, he tried to justify his action on the analogy that in the past similar practice had been fo llowed. Needless to say that a wrong committed on earlier occasion cannot be the shield towards commission and/or repeating such wrong action again and again. N eedless also to say that two wrong cannot make an action right.

#20. In is in the above context Mr. Goswami, learned Standing Counsel, Apex B ank in reference to the written argument submitted by him has submitted that the petitioner himself having admitted most of the charges, the alleged irregularit y in conducting the departmental enquiry will automatically fall through. He how ever, submits that there is no procedural irregularity in conducting the enquiry and that the enquiry was conducted providing due opportunity to the petitioner. He also submits that mere projection of a case of irregularity in the proceedin g is not enough but the requirement of law is to establish prejudice caused to t he delinquent pertaining to the alleged irregularity in conducting the enquiry.

#21. The disciplinary authority in consideration of the enquiry report and th e representation submitted by the petitioner passed the impugned order dated 27. 6.2003 (Annexure-E) dealing with each and every aspects of the matter. The disci plinary authority in consideration of the entire materials on record came to the finding that the charges established against the petitioner must entail the pen alty of dismissal from service. Such finding arrived at by the disciplinary auth ority cannot be interfered with on the basis of the pleas raised by the petition er. In view of the above, I am not inclined to interfere with the order date 22. d 27.6.2003. At this stage, Mr. Sarma, learned Sr. Counsel for the petitioner su bmits that considering the fact that the petitioner was imposed with the penalty of dismissal from service just one day ahead of his date of retirement on attai ning the age of superannuation, coupled with the fact that he has been suffering from various ailments, the Board of Directors of the Bank is required to have a fresh look in the matter so far as the extreme penalty of dismissal from servic e is concerned. He submits that the alternative penalty of compulsory retirement would entail certain benefits to the petitioner including the benefit of gratui ty. He further submits that since the gratuity cannot be withheld as per the pro visions of Payment of Gratuity Act, 1972, the Bank is obliged to re-consider the matter. Mr. Goswami, learned Standing Counsel, Apex Bank submits that the Managi 23. ng Director of the Bank is not empowered to review the order of penalty in absen ce of any statutory power. However, he fairly submits that it is for the Board o f Directors of the Bank is to decide as to whether a review is called for to the impugned decision. It is on record that the Managing Director of the Bank has p assed the impugned order on the basis of the decision of the Board of Directors of the Bank. In view of the above, while not interfering with the impugned order of p 24. enalty, it is however provided that the Board of Directors of the Bank shall re- examine the matter so far as the same relates to the penalty of dismissal from s ervice. Re-examination of the matter shall confine only to the extent as to whet her the penalty of dismissal from service can be converted to compulsory retirem ent or not, which may entail some more retiremental benefits to the petitioner a part from what the petitioner has already received, which according to the respo ndent Bank are the amounts pertaining to CPF and leave encashment dues.

#25. l be no order as to costs. With the above observation, the writ petition is disposed of. There shal