WP 248/2013 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.248/2013 Sunil S/o Umakant Mahashabde, Age: 49 Years, Occu: Retired, R/o Bhagyashri, Plot No.3, Deepnagar, Shahanoorwadi, Aurangabad. ...Petitioner.. Versus 1] Industrial Development Bank of India Ltd., Through its Chairman, IDBI Tower, WTC Complex, Cuffe Parade, Mumbai-05. 2] The Executive Director Personal Banking Coordination IDBI Tower, WTC Complex Cuffe Parade, Mumbai-05. 3] The General Manager, Personal Banking Group IDBI Tower, WTC COMPLEX, Cuffe Parade, Mumbai-05. ...Respondents... ..... Shri Pradeep Deshmukh, Advocate h/f S/Shri H.A.Joshi and S.S.Kutthe, Advocates for petitioner. Shri S.V.Advant, Advocate for respondent nos.1 to 3. ..... CORAM: S.V. GANGAPURWALA & K.L. WADANE, JJ.
DATE: 24.10.2016 ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 2 -
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1] The petitioner, at the relevant time, was serving as a Branch Manager. Departmental enquiry was initiated against the petitioner. The Enquiry Officer found the petitioner guilty. The disciplinary authority imposed punishment upon the petitioner thereby compulsorily retiring the petitioner from service. The petitioner preferred departmental appeal. The appellate authority dismissed the appeal. The petitioner thereafter filed review of the said judgment passed by the appellate authority. The review is also dismissed.
Aggrieved thereby, present petition is filed.
2] Mr.Deshmukh, the learned counsel for the petitioner submits that four charges, which were framed against the petitioner were not substantiated. On 13.1.2006, a complaint was made against the present petitioner to the effect that the complainant had deposited Rs.27,000/- with the petitioner for one time settlement of his crop loan account, which had become non-performing asset. But instead of depositing Rs.27,000/-, the petitioner deposited only Rs.20,000/-
and remaining Rs.7,000/- are misappropriated by the ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 3 -
petitioner. The learned counsel submits that on 18.10.2002, the complainant was informed about his loan account and was directed to repay the loan amount. On or about 18.8.2005, the complainant requested the petitioner by filing an application to settle his loan account as against Rs.20,000/-. The copy of said letter is a matter of record in the enquiry proceedings. The complainant had deposited Rs.20,000/- with the Cashier of the bank and not with the petitioner. Copy of the receipt of Rs.20,000/- issued by the Cashier of the bank is also a part of record of the enquiry. The petitioner vide letter dated 19.4.2006 also offered the same explanation.
The initiation of enquiry is based with mala-fide intention. On 18.4.2006, the complainant was served with copy of the complaint and on the very date, the Zonal Manager, Nagpur Zonal Office, informed the opinion taken by him.
3] The learned counsel submits that the charge no.2 is not at all proved. The charge no.1 was with regard to mis-utilizing the facility of reimbursement of lodging expenses as well as reimbursement of local conveyance charges for personal gain through misrepresentation and ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 4 -
submission of sham lodging bill. The said charge is sought to be proved on the basis of letter dated 24.8.2006 issued by the General Manager of Hotel Rajdhani. The General Manager accepted the bill to be original one, but further stated that the said bill is issued by the servant keeping the management in dark by acceptance of a bribe. The learned counsel submits that the bills normally are issued by the hotel management and served through the staff. The said charge ought to have been held as not proved.
4] The third charge with regard to submitting sham traveling bill for reimbursement by misrepresenting the mode of travel is absolutely not proved. The same is sought to be proved on the basis of the letter issued by the approved valuer of the respondent - bank. The said letter does not speak about the date, time of the official visit from Akola to Risod. The petitioner used to visit various places being Recovery Officer so always used to avail the traveling allowance facility. The said letter cannot be an evidence.
5] The charge no.4 is that by mis-utilizing the position as a branch head, the petitioner has ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 5 -
misappropriated the rent sanctioned for coolers for the use of branch. The said charge is false and the same is also not proved. Being Branch Manager, the coolers are ordered by the petitioner on rent basis from various suppliers by calling quotations from them. After calling the quotations, the same are forwarded to the Zonal Manager for sanction and after sanction, the same were hired on rent basis. The rent of coolers is paid to suppliers in the bank accounts and not paid by cash.
According to the learned counsel, explanation is offered by the petitioner in detail. Each and every charge has been categorically and specifically denied. The said clarification is offered under letter dated 23.9.2006.
6] The learned counsel further submits that the enquiry traveled for quite a long time. Since 2006, the enquiry commenced, however, was not being concluded.
During the said long period of almost five years, the petitioner was facing personal as well as financial problems. The General Manager called the petitioner and assured him that if the petitioner accepted the charges, the problems of the petitioner would be solved. The enquiry committee had also assured the petitioner that a ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 6 -
lenient view will be taken against the petitioner if the petitioner accepted the charges. Relying upon the assurances given by the General Manager so also the enquiry committee, with a view that the enquiry would be concluded once and for all, the petitioner on 25.1.2011 gave an acceptance letter thereby accepted all the charges leveled against him. The said letter was made the basis of holding the petitioner guilty. The learned counsel submits that mere acceptance of allegations by the petitioner does not render the acceptance letter as an evidence. The learned counsel submits that the circumstances under which the said letter of acceptance of charges was given have to be considered. An opportunity was required to be given to the petitioner to explain the said admission of charges. According to the learned counsel, in absence of giving opportunity to the petitioner of explaining the charges, the said letter of acceptance cannot be relied upon. According to the learned counsel, the fact that the proceedings of enquiry continued at a snails speed and for five long years, the same was not concluded. The delay itself is a ground to quash the said enquiry. The learned counsel relies on ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 7 -
the judgment of the Apex Court in a case of State of A.P.
v. N. Radhakishan reported in AIR 1998 Supreme Court 1833, so also another judgment of the Apex Court in a case of P.V. Mahadevan v. M.D. T.N. Housing Board reported in AIR 2006 Surpeme Court 207. The learned counsel further submits that even the General Secretary of All India IDBI Officers Association on 1.9.2012 had issued a letter to the respondents detailing the circumstances under which the letter of acceptance of charges was given by the petitioner. The said letter is also placed on record before this Court. The same also would substantiate the contention of the petitioner about the assurance given by the bank officers to the effect that if charges are accepted, a lenient view could be taken.
7] The learned counsel further submits that the evidence on record itself was insufficient to prove the charges against the petitioner. The documentary evidence as well as the oral evidence was too short to prove the charges against the petitioner. The Enquiry Officer did not conclude the proceedings of examining all the witnesses and giving opportunity to the petitioner to put ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 8 -
forth his stand and merely concluded the enquiry on the basis of the letter issued by the petitioner accepting the charges.
8] The learned counsel, without prejudice to his aforesaid contentions and in the alternative, submits that the respondents, considering all the factors, ought to have taken a lenient view and could have issued minor punishment.
9] Mr.Advant, learned counsel for the respondents submits that it is not a case of denial of principles of natural justice. The petitioner was given ample opportunity. The petitioner now is trying to retract from the admission of his guilt. The petitioner cannot be permitted to do so. The learned counsel submits that in the departmental proceedings, strict rule of evidence is not applicable. With the evidence on record and the admission given by the petitioner, the charges are proved. A fact admitted need not be proved. The said admission is an admission proprio vigore.
10] The learned counsel further submits that after conducting preliminary enquiry, a charge-sheet was issued against the petitioner for his acts of mis-conduct.::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::
- 9 -
Various documents were produced on record to prove charge no.1. Copy of the bill submitted by the petitioner alongwith the T.A. bill was on record. The letter issued by the management of the said hotel was placed on record.
Customer entry book maintained by the said hotel was also a matter of record and the letter dated 24.8.2006 issued by the General Manager of the hotel Rajdhani stating that the petitioner never stayed in the hotel and the bill produced by the petitioner is fake and is obtained from the hotel staff by paying bribe, so also the letter dated 1.7.2006 given by Mr.Galgalikar, Assistant Manager of Amravati Branch to the Chief Manager stating that he had visited the said hotel Rajdhani alongwith one Mr.Deochake and owner of the hotel admitted before them that the petitioner had not stayed in the hotel.
11] The learned counsel submits that there were various documents to prove charge no.2. No due certificate issued by the petitioner to the complainant, pay in slip, copy of original complaint letter dated 13.1.2006, report of the then Deputy Zonal Manager about his findings so also copy of visit report dated 10.7.2007 submitted by Mr.Deochake in respect of his visits to ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 10 -
Akot, Akola and Amravati in respect of investigation done by him in respect of complaints against the petitioner, various documents have proved the said charge no.2.
12] Charge no.3 with regard to the false traveling allowance bill claimed by the petitioner and sanctioned for his travel from Yavatmal to Akola during the period 16th to 18th January, 2006, so also from Nagpur to Akot on 19.4.2006. The self declaration dated 1.7.2006 submitted by the approved valuer of the bank Mr.Abhijit Paranjape of Akola stating that he had traveled alongwith the petitioner in his own car and had not hired the car when they visited the village Risod itself shows that false traveling allowance bills were raised by the petitioner to gain unfair benefit. The learned counsel submits that as far as charge no.4 is concerned, various reports submitted by Mr.Deochake, who had done investigation about the complaints against the petitioner, the copies of sanction orders of cooler rent for the years 2003, 2004 and 2005 and the applications made by the Branch alongwith the copies of quotations year-wise of the details of the payment of rent, were also placed on record.::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::
- 11 -
13] The learned counsel further submits that all the facts unequivocally prove guilt of the present petitioner. Coupled with the same, the admission given by the petitioner on 25.1.2011 is itself self-
explanatory. Admission is the best evidence. By giving the said letter, he specifically stated that he does not want to produce any documents or witnesses. Management need not produce any further documents and witnesses. He has no objections about the admissibility of the documents produced by the management. He does not want to avail services of anybody as his defence representative and the enquiry be concluded and a lenient view may be taken. The learned counsel submits that the charges are proved by the documentary evidence as well as admission given by the petitioner. The learned counsel submits that the attitude and conduct of the petitioner was unbecoming of a bank official. The bank official is required to exercise higher standards of honesty and integrity. He has to protect the interest of the bank.
The learned counsel relies on the judgment of the Apex Court in a case of State Bank of India & another v. Bela Bagchi and others reported in (2005) 7 SCC 435.::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::
- 12 -
14] The learned counsel further submits that the petitioner had preferred an appeal before the appellate authority against the punishment imposed by the disciplinary authority. Before the appellate authority also, he never made any grievance about the circumstances under which he was required to give that letter. There was no whisper made by the petitioner in his appeal memo or till the conclusion of the proceedings in appeal that the petitioner had not given the said letter of acceptance of charges by his free will. For the first time in the writ petition, the said plea is taken. No explanation is given as to what prevented the petitioner from taking this plea before the appellate authority.
The learned counsel submits that because of admission given by the petitioner accepting his guilt so also accepting the documents produced by the management and requesting the management not to proceed further with the enquiry, the further evidence was not recorded in the enquiry. The admission would prove the charges. The learned counsel relies on the judgment of Division Bench of this Court in a case of Employees' State Insurance Corporation & others v. A.V. Tungare & others reported in ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 13 -
2015 (1) ALL MR 649. The learned counsel further relies on the judgment of the Apex Court in a case of Channabassappa Basappa Happali v. State of Mysore reported in (1971) 1 SCC 1. the learned counsel submits that in fact the management took a lenient view by compulsorily retiring the petitioner and not imposing punishment of removal from service. The punishment imposed on the petitioner is not so disproportionate to the misconduct so as to shock the conscience of the Court. The learned counsel relies on the judgment of the Apex Court in a case of Manoj H. Mishra v. Union of India reported in (2013) 6 SCC 313.
14] With the assistance of the learned counsel for the respective parties, we have gone through the documents filed on record so also have considered the arguments canvassed by the learned counsel for the respective parties.
15] The petitioner at the relevant time was working as Branch Manager of the respondent - bank. He was on a responsible position. The transaction of the customers with the bank are in the nature of uberrimae fidei i.e. of active confidence and trust.::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::
- 14 -
16] It appears that a preliminary enquiry was conducted. The petitioner was thereafter issued the notice. Four charges were framed against the petitioner.
The charges were to the effect that the petitioner had accepted an amount of Rs.27,000/- from the customer for settling his account and had deposited only Rs.20,000/-
in the loan account thereby misappropriated Rs.7,000/-, so also the petitioner had submitted false lodging bill, false traveling allowance bills and had submitted false bills with regard to rent of coolers. The documents were placed on record before the enquiry committee. The documents were on record to prove various charges. The petitioner on 25.1.2011 gave a letter of acceptance of the charges thereby accepting all the charges leveled against him. The petitioner in unequivocal terms admitted the said charges and requested the Enquiry Officer not to proceed further and he admitted all the documents produced on record. A fact admitted by a party need not be proved. The admission given by a party is an admission proprio vigore as is held by the Apex Court in the case of Thiru John & another v. Returning Officer & others reported in AIR 1977 Supreme Court 1724.::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::
- 15 -
17] The contention of the petitioner that the circumstances existing at the relevant time compelled him to give the said letter of acceptance and that he was facing financial problems and personal problems which weighed him to give the said letter of acceptance of guilt, could have been considered by this Court had the petitioner raised this plea atleast before the appellate authority. After the punishment of compulsorily retiring the petitioner was imposed by the disciplinary authority, the petitioner had filed an appeal before the appellate authority. In the appeal before the appellate authority, there is no whisper about the fact that it was in compelling circumstances, he was required to give the said letter of acceptance of guilt. The said appeal proceedings also continued for some time. During the said period, the petitioner could have raised the plea about the circumstances under which he was required to give the said letter of acceptance of guilt. As contended by the respondents, even personal hearing was given to the petitioner by the appellate authority. Even in the personal hearing, no such ground was agitated. It would be too late in the day for this Court to consider ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 16 -
the said arguments of the compelling circumstances existing requiring him to give the letter of acceptance of guilt.
18] The Apex Court in the case of Channabassappa Basappa Happali v. State of Mysore, referred to supra, the Apex Court has observed thus:
"4. The pleas of the petitioner are quite clear. In fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. At an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence. In this case, the facts were two-fold that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for what he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the police force must be clear ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 17 -
about extension of leave before they absent themselves from duty. Indeed this is true of everyone of the services, unless of course there are circumstances in which a person is unable to rejoin service, as for example when he is desperately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here. The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given by him. On the whole therefore the admission was one of guilty in so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion right in so holding."
19] The service Regulations provide for major penalties. The major penalties provided by the service rules governing the employment of the petitioner are as under:-
(f) Save as provided for in (e) above, reduction to a lower stage in the time scale of pay for a specified period, with further ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 18 -
directions as to whether or not the officer will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;
(g) Reduction to a lower grade or post;
(h) Compulsory retirement;
(i) Removal from Service, which shall not be a disqualification for future employment;
(j) Dismissal, which shall ordinarily be a disqualification for future employment."
20] The most stringent punishment in the said category of major penalties is dismissal, which shall ordinarily be a disqualification for future employment.
Thereafter, removal from service, which shall not be disqualification for future employment and the third stringent is compulsory retirement. The authorities after considering the record did not impose punishment of dismissal from service nor imposed punishment of removal from service, but had compulsorily retired the petitioner, which would not be a disqualification for future employment also.
21] It is trite that Wednesbury's principle of ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 ::: WP 248/2013
- 19 -
reasonableness is replaced by the doctrine of proportionality.
22] This Court would exercise its jurisdiction if it is found that the punishment imposed is disproportionate to the act complained.
23] The powers of this Court under Article 226 of the Constitution of India in re-appreciating the whole proceedings of enquiry would be in a limited compass.
This Court in its writ jurisdiction would not re-
appreciate the whole evidence on record. This Court would only invoke its jurisdiction if it is found that the procedure in enquiry has not been properly adhered to or that the findings are against the record or arbitrary.
None of these factors exist in the present case.
24] Considering the aforesaid conspectus of the matter, no case for interference is made out. The writ petition as such is dismissed. There shall be no order as to costs.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.) ndk/c24101638.doc ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:39:13 :::