Bombay High Court
Mrs. Pratibha Ashok Salvekar vs 2 The General Manager (Hr on 29 October, 2013
Bench: S.J. Vazifdar, K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1282 OF 2013
Mrs. Pratibha Ashok Salvekar ]
Aged: 62 years, Occ: Retired, ]
Date of Birth 21-04-1951, ]
R/at: 204, Prabhavati Niwas, ]
31, Park Road, Vile Parle (E), ]
Mumbai - 400 057 ]...Petitioner
V/s.
1 Allahabad Bank, ]
A Banking Company, ]
having its registered office at : ]
2, Netaji Subhash Road, ]
Kolkata - 700 001. ]
]
2 The General Manager (HR) ]
Allahabad Bank, ]
A Banking Company, ]
having its registered office at : ]
2, Netaji Subhash Road, ]
Kolkata - 700 001. ]
]
3 The Deputy General Manager, ]
Western Zonal Office, ]
Allahabad Bank, having office ]
At : 216-A, Dr. Annie Besant Road, ]
Worli, Mumbai - 400 025. ]...Respondents
Mr. Pradeep Thorat, Advocate for the Petitioner.
Mr.T.R.Yadav i/b Mr.Abhay Kulkarni, Advocate for Respondent
Nos.1 to 3.
Shraddha Talekar PA 1/16
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CORAM : S.J. VAZIFDAR &
K.R. SHRIRAM, JJ.
DATE : 29TH OCTOBER, 2013.
JUDGMENT (PER K.R. SHRIRAM, J.) :-
1 By an order dated 8th July 2013, the parties were put to notice
that the petition may be disposed of finally at the admission stage
itself. Hence rule. Respondents waive service. By consent of the
parties, rule made returnable forthwith and taken up for final hearing.
2 The petitioner is 62 years old and retired from the 1 st
respondent-Bank on 30th April 2011. Two days before her retirement
an order was issued by the respondents informing her that the
disciplinary proceedings which had been pending against her for over
14 years, will continue even after retirement from service because of
which her retirement benefits have been stopped. The background of
this 'disciplinary proceedings' has to be looked into to decide this
petition.
3 On or about 22nd March 1974, the petitioner joined the service
of the first respondent-Bank as a Clerk. On or about 5 th September
Shraddha Talekar PA 2/16
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1983 the petitioner was promoted as an officer in JMG-Scale-I and on
1st January 2004 was promoted to JMG Scale-II officer. In the
meanwhile, sometime in 1995, the petitioner was transferred as officer
to the Andheri (West) branch of the respondent No.1. During this
tenure at the Andheri (West) branch the petitioner was required to hold
temporary charge of the branch when the Branch Manager was out of
the branch temporarily. In the course of holding charge, the petitioner
was required to pass cheques issued by customers after verification of
the necessary details. During the petitioner's tenure as an officer in
JMG, Scale-I in the Andheri (West) branch, a current account was
opened in the name of one "Pratibha Pratishthan". This account was
opened on or about 28th September 1995 and the permission to open
the account was granted by the then Branch Manager one
H.C.Srivastava. As an officer, the petitioner was not concerned with
the opening of account as the same was not within the purview of her
duty. It was the sole prerogative of the Branch manager. The
petitioner was also not aware of any alleged irregularity in the opening
of the account in the name of "Pratibha Pratishthan". On or about
November 1995, when the Branch Manager was not available in the
branch and the petitioner was holding charge, two high value cheques
of the said Pratibha Pratishthan were presented. The petitioner after
Shraddha Talekar PA 3/16
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verifying the signatures on the two cheques presented with the
signature card, passed the said cheques in the usual course of business.
4 In 1997, the petitioner was transferred to the Regional Office
of respondent No.1 Bank as an officer. The petitioner received a show
cause notice dated 5th March 1997 issued by respondent No.3 in which
it was alleged that while she was posted as an officer at Andheri
(West) branch of respondent No.1-Bank, she passed two cheques of
very high value in account of Pratibha Pratishthan and she had ignored
certain irregularities that existed in the opening of the said account. It
was also alleged that the account was irregularly/unauthorizedly
opened by the said Srivastava, the then Branch Manager for opening
the Trust Account and despite that the petitioner had countersigned the
cheques that were presented for payment and that amounted to
commission/omission unbecoming of an Officer. The petitioner was
called upon to respond to the charges leveled against her.
5 It must be noted that the event relates to the year 1995. The
petitioner replied to the show-cause notice in which she explained that
the admitted position was that the account was irregularly opened by
the said H.S.Srivastava, the then Manager and the said petitioner had
Shraddha Talekar PA 4/16
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nothing to do with the opening of an account and she was not even
aware of any such irregularities and there was no reason for the
petitioner to even believe that there would be such irregularities. As
regards the countersigning on the cheques, the petitioner clarified that
the signatures on the said cheques tallied with the signature of the
authorized signatory in the signature card, account opening form and
the resolution and hence she countersigned the cheques which were
passed by the then Branch Manager, H.S. Srivastava. She found that
the instrument presented was in order and it was the Manager's
absolute discretion to dispose the fund or not. Nothing happened
thereafter on the show-cause notice and the petitioner was even
promoted, as mentioned earlier, to Scale-II in January 2004. The
petitioner after submitting her reply continued to work in the normal
course and till the year 2011.
6 As the petitioner was due to retire on 30 th April 2011, by a
letter dated 30th September 2009, the petitioner informed the
respondents that as over 12 years have passed since the show-cause
notice was issued in March 1997 to which she had replied in April
1997, she would presume that her explanation was accepted and the
matter was closed. She also mentioned that the presumption would be
Shraddha Talekar PA 5/16
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correct because the petitioner was also given a promotion with effect
from 1st January 2004. The petitioner also requested the bank to
confirm the same as she was due to retire within the next eighteen
months. There was no response from the bank.
7 In the meanwhile, the petitioner appeared for a written test and
was also interviewed for further promotion in the year 2009. Though
the petitioner claimed to have done fairly well in the written test and
also at the interview, the petitioner did not get the promotion. When
the petitioner was once again bypassed during the next promotional
test, the petitioner once again made a representation to the respondents
by a letter dated 17th June 2010. That was followed by one more
representation from the petitioner in which she informed the
respondents that she was wondering why her further promotions were
not happening and enquired if it was because of the show-cause notice
which was sent fourteen years ago or for any other reason. She also
brought to the notice of the respondents that it was 14 years since a
show-cause notice was issued and reply was sent and no further orders
have been passed which would mean that the petitioner was
exonerated.
Shraddha Talekar PA 6/16
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As the respondents continued to not give any response, the
petitioner once again sent a reminder by a letter dated 18th November
2010 informing the respondents that as her date of retirement was fast
approaching and only five months away she was under severe mental
stress and agony in view of not receiving any reply from the
respondents. The petitioner kept requesting the matter be closed
before her date of retirement. The petitioner did not receive any reply.
However, just two days before her retirement, the petitioner
was issued the impugned order dated 28 th April 2011. The petitioner
replied to the impugned order by her letter dated 5 th June 2011 in
which she made it very clear that after 14 years and despite being
given promotions, she was being harassed. Issuing the letter one day
before her retirement, as per the Bank's rules, itself was illegal and
against the principles of natural justice. The petitioner also relied on
the ground rules in the Allahabad Bank (Officers') Service
Regulations, 1979, which provides that after preparing a list of officers
retiring in the next two years, the disciplinary / competent authority
should get the following scrutiny done in the case of each officer:
"
• Reports from the vigilance department
should be obtained to verify whether any
Shraddha Talekar PA 7/16
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enquiry/investigation is pending against the
Officer which is likely to result in disciplinary
action being taken against the Officer.
•
Inspection reports pertaining to the
retiring Officer's work should be carefully
examined to see if the Officer has committed grave
irregularities which may lead to
criminal/departmental action against him,
especially if the Officer is working in a branch or
dealing with operational matters.
• Check whether any other serious
complaint is pending. It should be ensured that all
cases of irregularities, lapses etc. alleged to have
been committed by the Officer are looked into one
year before the retirement of the Officer.
Thereafter, it should be ensured that disciplinary
proceedings, if any are initiated and completed
well before the date of superannuation. In cases
where departmental proceedings are already
pending, time bound program should be drawn up
to ensure that the proceedings are completed will
before the date of superannuation.
• Three months before an Officer is due for
retirement the competent authority should once
again check up with the vigilance department and
obtain a fresh clearance from them. At this stage,
if any fresh case is brought to the notice of the
competent authority, he should immediately
submit a report to the Chief Executive of the
Bank giving the details of the
misconduct/irregularities that the Officer is
reported to have committed and also whether in
his view departmental proceedings should be
initiated. The Chief Executive should take a view
regarding continuation of disciplinary
proceedings beyond the date of superannuation as
if the officer were in service, depending upon the
gravity of the irregularities committed and
Shraddha Talekar PA 8/16
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sensitiveness of the case. If the Chief Executive
is of the view that action should be taken against
the Officer even if it results in continuation of
disciplinary proceedings beyond the date of
superannuation, the officer should be immediately
advised by a proper order and the disciplinary
authority should be Ordered immediately to frame
charges against him and prepare a time bound
program for completion of disciplinary
proceedings within next six months.
In the case of Officer against whom
disciplinary proceedings have already been
initiated, the disciplinary authority should
examine the case three months before the Officer
is due for retirement and submit a note to the
Chief Executive indicating whether the inquiry
will be completed before the date of
superannuation.
In case proceedings are like to continue
beyond the normal date of superannuation, the
Officer should be informed by a proper Order
about the continuation of the enquiry proceedings,
even though he would cease to be in service. The
cases of such offices against whom disciplinary
proceedings will continue beyond superannuation
should be put up to the Board of Directors for
information/confirmation.
.................."
It is rather obvious that the respondents have not complied
with these regulations.
9 The petitioner continued to make representations to the
respondents to release her retirement benefits, in vain. The petitioner
Shraddha Talekar PA 9/16
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also made an application under RTI Act for the details regarding the
disciplinary proceedings, but the same was refused on the grounds that
the same related to disciplinary proceedings against her and hence she
will not be provided the information sought.
10 Apart from the facts as mentioned above the petitioner has
also relied on the circular dated 15 th may 2009 issued by the Personal
Administration Department, Disciplinary Cell, Kolkata of the first
respondent Bank, in which a time limit for departmental enquiry has
been given as under:
CVC guidelines on time limit for departmental
enquiry: The departmental enquiry is to be conducted
within the time frame as per CVC guidelines. Often,
enquiries are adjourned for one reason or the other
thereby exceeding the time schedule prescribed. For
the information of all filed functionaries the time
norms prescribed by CVC are given hereunder:
1) Vigilance Cases : Within 6 months
from the date of
institution of
enquiry
2) Vigilance 'F' Cases : Within 4 months
(Frauds involving Rs.1 from the date of
crore and above) issuance of
Charge Sheet or 2
months from the
date of institution
of enquiry
Shraddha Talekar PA 10/16
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3) Non-vigilance : Within 3 months
from the date of
institution of
enquiry.
The D.As. may also keep in mind the paragraph on
Time limit for initiation of Disc. Proceedings as per
the Special Chapter on Vigilance Management in
Public Sector Banks which states as under :
"Every Bank has evolved a system of Credit
audit / inspection for non-borrowal /
borrowal accounts under which they are
subject to close scrutiny. This audit /
inspection would scrutinize pre-sanction
appraisal, documentation and disbursement
of loans / advances and post sanction follow
up. If any irregularity is missed out by
auditors / inspectors in the first audit /
inspection, it is reasonable to expect that the
remaining undetected irregularities will be
detected in the second audit / inspection and
necessary disciplinary proceeding initiated
against the concerned officials in the follow
up action. Normally, the second audit /
inspection would be completed within 3-4
years. The Commission has accordingly
approved the proposal that no disciplinary
proceeding will ordinarily lie against any
official for any lapse not detected within two
successive internal regular audits /
inspections of the same account or 4 years
from the date of the event, whichever is later.
In case any irregularity is detected
subsequent to the second audit / inspection,
the auditors / inspectors concerned will be
held accountable and be liable for
disciplinary proceedings. This time limit will
not apply to cases of i) frauds, ii) other
criminal offences or iii) cases where
malafides are inferable."
Shraddha Talekar PA 11/16
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All the concerned authorities at the field level are
advised to follow the above guidelines and dispose of
the cases strictly in terms of the clarification(s) given.
Further, the appeals, that are pending at various levels
should also be disposed off within the shortest
possible time to mitigate the period of uncertainty to
the officer/employee."[emphasis supplied]
11 It is necessary to note an averment in the petition that the said
Srivastava, who was working as a Branch Manager and was
responsible for opening the Trust account of the Pratibha Pratishthan,
who is now deceased, got all the retirement dues when he
superannuated. We fail to understand why the petitioner then is being
victimized.
12 The Bank in response has not given any satisfactory
explanation as to why the enquiry was not concluded for over 14 years
and the reason for its failure to follow its own and CVC guidelines on
conduct of disciplinary proceedings.
13 The alleged irregularities were the subject matter of a show-
cause notice that was issued in March 1997 for which reply was also
given by the petitioner in April 1997. It is not the case of the
Shraddha Talekar PA 12/16
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respondents that they were not aware of the said irregularities or that
they came to know about it only just a few days before the petitioner's
impending retirement. In fact, the petitioner had on her own initiative,
in view of her impending retirement, requested the respondents to
confirm that the matter was closed. The respondents for some
inexplicable reason failed and neglected to respond. It would be
unreasonable, unconscionable and unfair on the part of the respondents
to have kept quiet for over 14 years and just two days before the
petitioner's retirement and without any satisfactory explanation for the
inordinate delay, ordered withholding the petitioner's retirement
benefits. The respondents have not even given any explanation to the
petitioner for its apathy.
14 We are of the opinion that it is most unreasonable,
unconscionable and unfair on the part of the respondents to have issued
the impugned order after a period of over 14 years. The respondents
have also failed and neglected to follow the ground rules provided in
Allahabad Bank (Officers') Service Regulations, 1979. The said rues
expressly provide that it should be ensured that disciplinary
proceedings, if any are initiated and completed well before the date of
superannuation and in cases where departmental proceedings are
Shraddha Talekar PA 13/16
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already pending, time bound program should be drawn up to ensure
that the proceedings are completed well before the date of
superannuation.
The CVC guidelines on time limit for departmental enquiry
also provides for the time frame within which the enquiry has to
conclude. It also provides that the enquiry should also be disposed off
within the shortest possible time to mitigate the period of uncertainty
to the officer/employee. ig The respondents have grossly failed in
complying with these requirements more so when the main person, the
late Srivastava got all his retirement benefits when he superannuated.
It is unreasonable to think that the respondents can keep disciplinary
proceedings open for more than 14 years with no end in sight. There is
no satisfactory explanation for the inordinate delay. On the contrary
the respondents are deemed to have accepted the explanation of the
petitioner made in the year 1997 in reply to the show cause notice and
exonerated the petitioner. Allowing the respondents to continue to
withhold the retirement benefits of the petitioner, more so, when the
main person who had opened the bank account of Pratibha Pratishthan
got all his retirement benefits is grossly unfair.
Shraddha Talekar PA 14/16
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15 We do not suggest that the mere non compliance with the
guidelines internal and of the CVC vitiates the proceedings in as an
absolute rule. In the facts of this case, however, even independent of
these rules/guidelines, we would have come to the same conclusion.
This is not a case of mere delay. In this case, the delay has, in fact,
caused the petitioner enormous prejudice. For instance, if the
proceedings had been conducted within a reasonable time, the
petitioner could have summoned her superior the said Srivastava
whose evidence would have been invaluable. During the course of
these 14 years, the said Srivastava died. The delay has, therefore,
deprived the petitioner of leading important evidence. This in turn
could well have deprived the petitioner of a chain of other evidence
depending upon the said Srivastava's deposition.
16 Under the circumstances, we are of the opinion that it will be
unfair and unconscionable to permit the departmental proceedings to
be kept open at this stage. The Writ Petition is, therefore, disposed of
by directing the respondents to forthwith close the disciplinary enquiry
against the petitioner and release all the retirement benefits to the
petitioner within eight weeks of receiving a copy of this order.
Shraddha Talekar PA 15/16
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17 There shall be no order as to costs.
(K.R. SHRIRAM, J.) (S.J. VAZIFDAR, J.)
Shraddha Talekar PA 16/16
