THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
WRIT PETITION No.1183 of 2012
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking the following prayer:
"....to issue a Writ or order or direction, more particularly one in the nature of Writ of Mandamus by calling for the records pertaining to the letter No.666/20/V/T-950/1019 dated 31.12.2009 and letter No.666/20/V/T-950/1097 dated 30.12.2010 and declare the action of 3rd / 2nd respondents in inflicting the penalty of dismissal from Bank service on the petitioner after the date of superannuation as illegal, arbitrary and void in law and the action of not releasing the balance of Term Deposit Receipts and withholding of property documents under the guise of the disciplinary proceedings as illegal and accordingly, set aside or quash the penalty of dismissal with a direction to the respondents to settle and pay the retirement benefits of the petitioner forthwith, and pass such other order or orders..."
2. The case of the petitioner, in brief, is that he was appointed in the respondents-bank on 20.12.1974 in the Clerical cadre and thereafter, he got promotions. While he was working as Officer Scale-II in Sultan Bazar Branch and his retirement was due on 31.08.2008, he was served with order of suspension vide Lr.No.688/20/V/O-3002/1914 dated 13.08.2008 alleging some inquiry into certain irregularities. Subsequently, another letter dated 16.08.2008 was issued by the respondent No.3 stating that the petitioner would be continued in service beyond his retirement 2 AAR,J WP No.1183 of 2012 date i.e, 31.08.2008 for the purpose of completion of disciplinary proceedings and passing of final orders. However, in terms of letter No.688/20/V/317 dated 30.08.2008 issued by the respondent No.4, the petitioner had retired from service on attaining the age of superannuation on 31.08.2008. The respondent No.3 vide letter No.666/20/V/T-950/CS/35 dated 15.06.2009 issued charge sheet contemplating an Article of Charge alleging that the petitioner had done fraudulent/unauthorized transactions resulting in loss to the tune of Rs.9,42,979/- to the Bank. The petitioner submitted his reply dated 28.07.2009 protesting the issuance of charge sheet after lapse of more than 10 months from the date of his retirement. It is further stated that the petitioner in his anxiety to get disciplinary proceedings finalized early, has merely admitted the factual aspect of handing over of his personal Term Deposits worth about Rs.10 lakhs way back in August, 2008 to ensure that no loss is caused to the Bank, duly mentioning that there is a serious discrepancy in the Charge Sheet in statement of loss/ misappropriation to the extent of Rs.4,75,018/- and finally requested to settle his terminal benefits and pay the balance amount of his term deposit by taking a lenient view. However, the 3 AAR,J WP No.1183 of 2012 respondents initiated domestic enquiry vide letter No.666/20/V/T950/474 dated 31.07.2009 and conducted the enquiry in one sitting and the Inquiry Officer submitted his report dated 30.11.2009 holding the petitioner guilty of the charges levelled against him, by treating the petitioner's submission as confessional statement. The petitioner submitted his reply to the said enquiry report stating that the loss has been overstated to the extent of Rs.4,75,018/- and the amount to be recovered is only to the extent of Rs.4,67,961.86 ps but not Rs.9,42,979.86 as alleged. However, the respondent No.3 vide proceedings dated 31.12.2009 erroneously imposed the penalty of dismissal from service with immediate effect duly treating the entire period of suspension from 13.08.2008 to 31.08.2008 as not on duty. The petitioner preferred an appeal before the respondent No.2 and the same was also disposed of vide proceedings dated 30.12.2010 with an observation that no new material or justifiable grounds were put forth by the petitioner and that the penalty imposed is commensurate with the gravity of misdemeanour. The petitioner submits that due to compelling family circumstances certain amount was transferred from one account to other and with a view to remorse the matter, 4 AAR,J WP No.1183 of 2012 he had volunteered to submit fixed deposit receipts whose worth is more than the alleged misappropriated amount, even before the charge sheet was issued to him but the respondents did not take a lenient view in the matter and issued the charge sheet after the date of superannuation and imposed the impugned penalty of dismissal from service after superannuation. It is stated that though the petitioner had cleared the housing loan and inspite of the letter dated 16.07.2008 issued by the respondent No.4, the property documents were not released. Therefore, the petitioner prays this Hon'ble Court to allow the writ petition as indicated above.
3. The respondents filed their counter affidavit stating that while the petitioner was working as Deputy Manager at Sultan Bazar Branch, at Hyderabad, during the period between 25.06.2000 to 31.08.2008, he fraudulently entered certain transactions for transferring amounts from different heads of the General Ledger and certain Current Accounts of the customers to his SOD Account, SB accounts of his wife and daughter to the tune of Rs.9,42,979.86 causing loss to the Bank to that extent. Pending enquiry, the petitioner was placed under suspension w.e.f.
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WP No.1183 of 2012
13.08.2008. As the petitioner was due for retirement on
31.08.2008, his services were extended for limited purpose of completing departmental proceedings in accordance with the provisions of Service Regulation 20(3) (ii) and (iii) of Andhra Bank (Officers) Service Regulations, 1982 (for short "ABOSR, 1982"). The petitioner was served with a Charge Sheet dated 15.06.2009. In view of the denial of charges by petitioner, the disciplinary authority has ordered departmental enquiry into the charges levelled against the petitioner. The petitioner participated in the Preliminary Hearing proceedings held on 27.11.2009 and pleaded guilty to the charges levelled against him. In view of the confession of guilty, the Enquiry Officer submitted his report dated 30.11.2009. The respondent No.3-Disciplinary Authority after considering the findings of Enquiry Officer and the entire material on record vis-à-vis, submission made by the petitioner, taking into consideration the gravity of the charges alleged and established against the petitioner, imposed the major penalty of dismissal from services of the bank vide order dated 31.12.2009. Challenging the same, the petitioner preferred appeal dated 02.03.2010 before the respondent No.2-Appellate Authority and vide orders dated 6 AAR,J WP No.1183 of 2012 30.12.2010, the Appellate Authority confirmed the punishment imposed on the petitioner. It is submitted that in due obedience of the interim order dated 20.01.2012 passed by this Court in W.P.M.P.No.1464 of 2012 in W.P.No.1183 of 2012, the respondent-Bank released the title deeds of house belonging to the petitioner. The proceeds of the fixed deposits standing in the name of the petitioner after adjusting the dues, were also credited to the account of the petitioner i.e, SB Account No.131210100001714 with Sri Ramakrishnapuram Branch, Hyderabad on 24.08.2012, 08.10.2012 and 07.02.2013. In view of Regulation 20 (3)(ii) of ABOSR, 1982, the disciplinary proceedings are deemed to be pending from the date of suspension of the petitioner i.e, 13.08.2008. Therefore, as a corollary and in consonance with the rules, the retirement of the petitioner on 31.08.2008 would loose its significance more so when he was specifically intimated that he will be continued until the final orders are passed and thus the respondents prayed this Hon'ble Court to dismiss the writ petition.
4. Heard Sri K.R.K.V.Prasad, learned counsel for the writ petitioner and Dr. K.Lakshmi Narasimha, learned Standing 7 AAR,J WP No.1183 of 2012 Counsel appearing on behalf of the respondents. Perused the record.
5. The learned counsel for the petitioner has stated that the petitioner was initially appointed on 20.12.1974 and thereafter, he was retired from service on 31.08.2008. That basing on some unsubstantiated allegations, the petitioner was suspended from service on 13.08.2008 and the respondent No.3 vide letter No.688/20/V/O-3002/1914 dated 13.08.2008 sought to take disciplinary action against the petitioner. That subsequent to the date of retirement on 31.08.2008, the respondent No.3 has issued charge sheet on 15.06.2009 vide Letter No.666/20/V/T- 950/CS/35, for which, the petitioner has submitted his reply dated 28.07.2009. Thereafter, basing on the domestic enquiry, which was completed in one sitting and by misconstruing the explanation given by the petitioner, the petitioner was terminated from service with immediate effect vide letter No.666/20/V/T- 950/1019 dated 31.12.2009. Even though the petitioner has preferred an appeal before the respondent No.2, the same was dismissed on 30.12.2010 confirming the order of dismissal. The learned counsel has stated that the rule under which the 8 AAR,J WP No.1183 of 2012 disciplinary action was sought to be continued against the petitioner even after retirement i.e., Regulation 20(3)(ii)(iii) of ABOSR, 1982 has been interpreted by the Hon'ble Supreme Court in Uco Bank and another vs. Rajinder Lal Capoor1 and Uco Bank and Another vs. Rajinder Lal Capoor2 and the same was found to be illegal. The learned counsel for the petitioner has stated that even though the petitioner was put under suspension on 13.08.2008, the charge sheet was filed much later i.e, almost after a gap of 10 months i.e, on 15.06.2009, by which date, the petitioner had already retired from service on 31.08.2008. That the initiation of any disciplinary proceedings after retirement of the employees is not permissible by any stretch of imagination and therefore, prayed this Hon'ble Court to allow the present writ petition.
6. Per contra, learned Standing Counsel appearing on behalf of the respondents has stated that the petitioner has misappropriated amounts and by misusing his position, has transferred amounts from the General Ledger to various accounts belonging to himself, his wife and daughter. That during the period 25.06.2000 to 1 (2007) 6 SCC 694 2 (2008) 5 SCC 257 9 AAR,J WP No.1183 of 2012 31.08.2008, the petitioner taking advantage of his fiduciary relationship at the bank has transferred amounts from the General Ledger to his own account without any authority of law. With regard to the judgments relied upon by the petitioner, the learned Standing Counsel has stated that the Hon'ble Supreme Court subsequently has doubted the preposition of law laid down in the earlier judgments, which are relied upon placed by the petitioner and the matter was referred to a Larger Bench. The learned Standing Counsel has relied on the judgment in Chairman-cum- Managing Director Mahanadi Coalfield Limited vs. Rabindranath Choubey3 and ultimately prayed this Hon'ble Court to dismiss the present writ petition.
7. A perusal of the impugned order shows that the petitioner was initially charge sheeted for misappropriating the amount of Rs.9,42,979/- and the disciplinary authority duly taking into consideration the evidence on record has held the petitioner guilty of the charges levelled against him. In the submission given by the petitioner vide letter dated 17.12.2009, the petitioner has stated as under:
3
(2013) 16 SCC 411 10 AAR,J WP No.1183 of 2012 "At the outset, I once again reiterate that I had made an unqualified admission of guilt at the first possible phase (August, 2008) and gave a clear cut undertaking letter to make good the loss duly handing over the term deposits worth about Rs.10.00 lakhs to be adjusted against the said transactions and refund the balance.
Further, I also object and point out that there is a basic error in the charges in terms of the statement of allegations where the amount of loss crystallized to the Bank is grossly overstated. For example, you will observe the following discrepancies.
Statement-II
Amount already
S. Amount Balance to
Date adjusted to the
No. reported be recovered
respective Heads
1 03-10-2007 45,509.00 4,926 adj on 2,595.00
05.10.2007
37,988.00 adj on
23.10.2007
(Total Rs.42,914.00
adj)
2 12-10-2007 3,02,104.00 3,02,104.00 adj on ---
27.10.07
3 27-10-2008 2,82,748.36 --- 2,82,748. 36
4 12-02-2008 77,000.00 77,000 adj on ---
14.02.2008
5 12-02-2008 53,000.00 53,000.00 adj on ---
14.02.2008
Total 7,60,361.36 4,75,018.00 2,85,343.36
Statement-III
Amount Amount already adjusted Balance to be
reported to the respective Heads recovered
50,055.00 --- 50,055.00
Statement-IV
Amount Amount already adjusted Balance to be
reported to the respective Heads recovered
1,32,563.50 --- 1,32,563.50
9,42,979.86 4,75,018.00 4.67.961.86
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WP No.1183 of 2012
Thus, there is overstatement of loss/misappropriation of
Rs.4,75,018/- in terms of charge sheet itself vis-à-vis the branch records and the amount to be recovered comes to Rs.4,67,961.86 and not Rs.9,42,979.86."
However, subsequently, the disciplinary authority/respondent No.3 did not reduce the amount from Rs.9,42,979.86 to Rs.4,67,961.86 holding that the said amounts were adjusted by the petitioner after the fraud was perpetuated and dismissed the petitioner from service and the same was upheld by the Appellate Authority/respondent No.2. The learned Standing Counsel for the respondents has relied upon the Regulation 20(3)(ii)(iii) of ABOSR, 1982 to buttress his contention that the petitioner was suspended prior to the date of retirement and in accordance with the provisions of Regulation 20(3) (ii)(iii) of ABOSR, 1982, the respondent No.2 vide letter dated 16.08.2008 which allowed the petitioner to continue in service beyond his superannuation for the limited purpose of completing the disciplinary proceedings and passing of final orders. Therefore, the ground taken by the petitioner that passing of the dismissal order after the date of retirement is without any legal basis cannot be accepted. It is pertinent to extract Regulation 20(3)(ii)(iii) of ABOSR, 1982 for the limited purpose of this case, which reads as under:
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WP No.1183 of 2012
"(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this Regulation if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him and will be deemed to be pending until final orders are passed by the Competent Authority.
(iii) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned officer will not receive any pay and/or allowance after the date of superannuation."
8. The Hon'ble Supreme Court in Uco Bank and another vs. Rajinder Lal Capoor's case (1 supra), while interpreting similar clause pertaining to the UCO Bank, which is pari meteria with the above rule, held as under:
"Para 21:. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. xxxx.....
Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (2007) 9 SCC 625) this Court held :
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WP No.1183 of 2012
"13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was furthermore observed that :
"20. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
Para 23: An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law."
9. The Hon'ble Supreme while dealing with the review application of the above judgment reported in (2008) 5 SCC 257 = Uco Bank and Another vs. Rajinder Lal Capoor's case (2 supra) held as under:
"Para 29: In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of 14 AAR,J WP No.1183 of 2012 superannuation must be a statutory rule. A' fortiori it must be a rule applicable to a disciplinary proceedings.
Para 30: There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.
Para 31: Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment."
Admittedly, in this case, the petitioner has retired from service on 31.08.2008 but the charge sheet was filed against the petitioner only on 15.06.2009 i.e, after a lapse of more than 10 months. Therefore, it has to be necessarily held in this case that as on the date of retirement of the petitioner no disciplinary proceedings were pending against the petitioner. Even though the learned counsel for the petitioner has relied upon the judgments of Uco Bank and another vs. Rajinder Lal Capoor's case (referred supra), it is fairly stated by the learned Standing Counsel for the respondents that till date, the Larger Bench has not been constituted and as on date, the law laid down by the Hon'ble Supreme Court in the two judgments holds good.
10. Having regard to the same, this Writ Petition is allowed and the impugned Lr.No.666/20/V/T-950/1019 dated 31.12.2009 15 AAR,J WP No.1183 of 2012 issued by the respondent No.3/disciplinary authority dismissing the petitioner from Bank's service with immediate effect, which was confirmed by the respondent No.4/appellate authority vide letter No.666/20/V/T-950/1097 dated 30.12.2010, are hereby set aside. However, this judgment is subject to the final orders that may be passed by a Larger Bench of the Hon'ble Supreme Court in Uco Bank and another vs. Rajinder Lal Capoor's case.
Consequently, miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A. ABHISHEK REDDY, J Date: 09.03.2023 scs