Mr. Avinash Sharad Dagaonkar vs Bank Of India, Through Chairman ...
2016 Latest Caselaw 6244 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         




                                                                                               
                                CIVIL APPELLATE JURISDICTION




                                                                       
                                 Writ Petition NO. 6418 OF 2014


    Mr.Avinash Sharad Dagaonkar.                                 )




                                                                      
    Age about 50 yrs, residing at                                )
    23, Alakhdham Nagar, Ujjain-456010                           )...Petitioner.




                                                    
                     versus


    1.Bank of India
                                    ig                           )
    Star House, Plot No.C-5, "G" Block                           )
                                  
    Bandra Kurla Complex, Bandra (E)                             )
    Mumbai-400051, through Chairman and                          )
    Managing Director                                            )
       

    2.General Manager (HR), Bank of India                        )
    Star House, Plot No.C-5, "G" Block,                          )
    



    Bandra Kurla Complex, Bandra (E),                            )
    Mumbai-400051.                                               )

    3. General Manager(Chief Vigilance Officer))





    Bank of India, Star House, Plot No.C-5,    )
    "G" :Block, Bandra Kurla Complex,          )
    Bandra (E), Mumbai-400051.                 )...Respondents
                                        ---





    Mr.Pradyuma M.Mokashi, for the Petitioner.

    Mr.Lancy   D'Souza   with   Ms.Deepika   Agrawal   i/b.   Mr.V.M.Parkar,   for 
    Respondent Nos.1 to 3.

                                                 ----




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                                          CORAM :                 ANOOP V. MOHTA & 
                                                                  G.S. KULKARNI, JJ.

                                     Reserved on  :               29th September,2016.
                                  Pronounced on  :                21st October,2016




                                                                        
     
                                    ----
    JUDGMENT: (Per G.S.Kulkarni, J.)




                                                                       

1. By this petition under Article 226 of the Constitution of India,

the Petitioner interalia challenges the suspension order dated 7 June

2011, the order dated 14 February 2013 imposing penalty of dismissal as

confirmed by the Appellate Authority's order dated 16 May 2013 as also

confirmed by the Reviewing Authority by its order dated 22 October 2013,

praying that these orders be quashed and set aside with a further prayer

seeking reinstatement in service with full backwages.

The facts in nutshell are:-

2. The Petitioner joined services with the first Respondent in the

year 1983 as a clerk-cum-cashier. He received promotions and ultimately

in the year 2010 was working as Senior Branch Manager at Mahidpur

branch of the first Respondent. The Petitioner states that from January to

May 2011, two officers from Mahidpur branch were transferred to the

other branches resulting in tremendous work load on the Petitioner and

other officers working in the branch.

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3. On 7 June 2011 the first Respondent issued an order of

suspending the Petitioner in contemplation of a departmental inquiry. The

suspension order recorded that the Petitioner had parted with the security

documents in respect of KCC loan accounts sanctioned by the Petitioner.

The order sets out details of 40 accounts alongwith the details of the

sanctioned amount and the disbursed amount. It was recorded that the

Petitioner had connived with the local agents and collected bribe for

sanction of KCC loans through these agents, which was also widely

reported in the local media, which tarnished the bank's image.

4. The first Respondent thereafter issued to the Petitioner a

show cause notice dated 26 August 2011, setting out 17 acts of

misconduct alleged to be committed by the Petitioner. The details of 41

bank accounts in regard to which the allegations were made were also set

out. The Petitioner by his letter dated 7 September 2011 replied to the

show cause notice, inter alia, stating that the Petitioner deeply regretted

the lapses and requested the first Respondent to forgive him. The

Petitioner also stated that he was under tremendous pressure of work

after transfer of certain officers. The Petitioner recorded that he was

unable to know how the security documents went out of the branch

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premises. He also pleaded that he had not given these documents to the

middleman Mr.Bherulal. He denied that he has accepted any bribe or

commission and stated that this was a conspiracy to tarnish the

Petitioner's image and to blackmail the Petitioner and that there is some

local politics involved.

5. Being not satisfied with the reply, the first Respondent issued

a chargesheet dated 30 June 2012. The charges interalia were of misuse

of official position in sanctioning as well as disbursing KCC loans in

connivance with middleman Mr.Bherulal, in respect of 40 loan accounts

and while sanctioning these loans acceptance of illegal gratification, by

way of siphoning of loan amount payable to the borrowers being the

Petitioner's illegal share, the details of which were set out. The second

charge was that the Petitioner unauthorizedly allowed Mr.Bherulal -the

middleman to take physical possession of the bank security documents in

respect of 40 loan accounts. It was alleged that after taking unauthorized

possession of the bank's security documents, Mr.Bherulal got these

documents executed by the borrowers at his private office without the

presence of any bank official. Thirdly, it was alleged that the Petitioner

extended undue accommodation to Mr.Bherulal by sanctioning him

Agricultural Term Loan for purchase of car of Rs.3 lakhs on 18 April 2011

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which was disbursed without ensuring to any security for the safety of

bank's fund, thereby exposing the bank to financial loss of Rs.3,11,769.30.

Fourthly it was alleged that the Petitioner has committed gross dereliction

in performance of duties while sanctioning KCC loans inasmuch as no pre-

sanction or post sanction inspection was conducted in respect of KCC loan

accounts in respect of 40 such accounts.

6. Alongwith the chargesheet, the Petitioner was supplied with

copies of the 40 statement of accounts and copies of statement of 15

borrowers and 13 withdrawal forms of different account holders. A list of

17 witnesses that would be examined in the departmental inquiry was

also furnished. The Petitioner submitted a cryptic statement of defence

dated 10 July 2012 denying the charges, interalia stating that he acted in

good faith, honestly and to the best of his ability. The Petitioner stated

that he had not committed any mistake, however, some procedural lapses

might have been committed by him and which may be due to work

pressure. He further stated that there was no intention to put the bank in

losses.

7. The first Respondent appointed an inquiry officer to inquire

into the charges against the Petitioner and informed about the same to the

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Petitioner by a letter dated 24 July 2012. The inquiry officer conducted an

enquiry, wherein the Petitioner was granted an opportunity to defend his

case. The Petitioner also appointed his defence representative. The

Respondent examined witnesses to prove the charges, who were cross

examined on behalf of the Petitioner. However, there is one significant

aspect in the enquiry, that is during the course of inquiry, the Petitioner

submitted a letter dated 18 October 2012 before the Inquiry officer

interalia stating that taking into consideration the chargesheet and the

evidence of the witnesses and the documents, the Petitioner stated that he

unconditionally admitted to all these charges, and the same was being

done without any influence and that he did not wish to say anything more

in his defence. The Petitioner stated that as he has admitted the charges,

his case be sympathetically considered. The Petitioner by a further letter

dated 15 December 2012 addressed to the Assistant General Manager of

the first Respondent, stated that he was under deep mental stress as also

financial stress which had worsened during the inquiry process and to

overcome the mental stress, he admitted the charges unconditionally. The

Petitioner requested he be forgiven and reinstatement be granted to him

at the earliest. He also stated that he shall remain faithful to the

Respondent-Bank in his remaining service.

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8. The Inquiry officer on the basis of the documentary and oral

evidence which had come on record, submitted an inquiry report dated 6

December 2012 holding that all the four charges against the Petitioner

were proved, this was apart from the Petitioner's unconditionally

admitting of all the charges which was also noted by the Inquiry Officer

and recorded. The detailed inquiry report discusses all the documents as

also contains analysis of the evidence to record a findings of fact that the

charges against the Petitioner are proved.

9. A copy of the inquiry report was furnished to the Petitioner

seeking his explanation and defence. The Petitioner accordingly

submitted a reply dated 15 December 2012. The disciplinary authority

taking into consideration the materials in the inquiry proceedings and the

Petitioner's reply, concurred with the findings of the Inquiry Officer and by

an order dated 14 February 2013 imposed a major penalty of dismissal

with a disqualification for future employment under Regulation 4(j) of the

Bank of India Officer Employees (Discipline & Appeal) Regulations,1976.

The Petitioner being aggrieved by the dismissal order dated 14 February

2013 preferred a departmental appeal before the Deputy General

Manager/Zonal Manager being the Appellate Authority. The Appellate

Authority did not find favour in the grounds of challenge as raised by the

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Petitioner and by a detailed order dated 16 May 2014 concurred with the

disciplinary authority and rejected the appeal of the Petitioner. The

Petitioner thereafter filed review proceedings dated 21 June 2013 before

the General Manager/Reviewing Authority. The Reviewing Authority by a

detailed order dated 22 October 2013 rejected the review petition. On this

factual background, the Petitioner has preferred the present petition.

10. Assailing the impugned orders, the learned Counsel for the

Petitioner would submit that the impugned orders are discriminatory and

in breach of principles of natural justice as a copy of the report of the

preliminary investigation on the basis of which the chargesheet was

issued, was not furnished to the Petitioner. In support of this contention,

the learned Counsel for the Petitioner has placed reliance on the decision

of the Division Bench of Orissa High Court in the case of "Prafulla

Chandra Behera Vs. Dena Bank and Ors."1

11. The next contention as urged on behalf of the Petitioner is

that the Petitioner has been victimized/singled out, as no action has been

taken against the other officers who were also equally involved and on

whom the charges could have been levied. He submits that during the

relevant period, the Petitioner was under tremendous pressure of work

1 (1991) ILLJ 130 Ori

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and that if the allegations of the chargesheet are seen, then, surely it is

not a work of one person. It is submitted that in fact after the events

complained in the chargesheet had happened the Petitioner was on

privilege leave. Learned Counsel for the Petitioner would submit that the

Petitioner was not aware as to how the security documents reached the

private person (Mr.Bherulal) who is stated to be a middleman. As

regards the Petitioner's admission of the charges before the Inquiry Officer

by his letter dated 18 October 2012, it is submitted that the Petitioner was

misguided by the Respondent's representative as also the Petitioner was

coerced and misrepresented to submit this letter admitting the charges. It

is therefore submitted that the inquiry proceedings are vitiated and

consequently the impugned orders are required to be quashed and set

aside.

12. On the other hand, the learned Counsel for the Respondents

would contend that the charges against the Petitioner were serious in

nature and stand proved on the basis of documentary and oral evidence

which is clear from the detailed inquiry report. It is submitted that the

Petitioner was granted complete opportunity to participate in the

departmental inquiry and defend the charges. The Petitioner appointed a

defence representative who fully represented the Petitioner in the inquiry

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proceedings. Further, there was no substantive grievance of the Petitioner

as regards non-furnishing of documents. As regards the Petitioner's

contention on non-supply of the report of the preliminary inquiry, it is

submitted that though this report was not supplied, it did not in any

manner cause a prejudice to the Petitioner, inasmuch as the officer who

had conducted the preliminary inquiry was himself examined on behalf of

the Respondents in the inquiry proceedings and was permitted to be cross

examined. It is submitted that in the preliminary inquiry the concerned

investigating officer had recorded statements of various witnesses who

were the borrowers and the documents in respect of whose borrowings

were recovered from Mr.Bherulal. It is submitted that copies of these

statements as collected in this preliminary inquiry were furnished to the

Petitioner, apart from the Investigating Officer himself being examined

before the enquiry officer. Learned Counsel for the Respondents submits

that further a full opportunity was granted to the Petitioner to examine his

witnesses. It is, therefore, submitted that only because a preliminary

report being not furnished, would not cause any prejudice to the

Petitioner in the facts of the case. The learned Counsel for the

Respondents submits that in any event these grievances are completely

irrelevant and are eclipsed in view of the Petitioner's letter dated 18

October 2012 wherein the Petitioner has unconditionally accepted all the

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charges levelled in the chargesheet. It is submitted that the Petitioner's

acceptance of the charges in the letter dated 18 October 2012 is further

compounded in the subsequent letter dated 15 December 2012 whereby

the Petitioner has requested to be forgiven and that he be reinstated.

Learned counsel for the Respondents in support of his submission that

once the Petitioner has admitted the charges, then, imposition of penalty

cannot be faulted, relied on the decision of the Division Bench of this

Court in the case of "Employees' State Insurance Corporation, New

Delhi & Ors. Vs. A.V.Tungare & Ors."2 and also a recent decision of the

Supreme Court in the case of "Surjeet Singh Bhamra Vs. Bank of India

& Ors."3 In conclusion the learned Counsel for the Respondents would

urge that the Petitioner being victimized or that there was breach of the

principles of natural justice, and the case of malafides, are wholly

unsubstantiated and deserve to be rejected.

13. We have considered the rival submissions at the bar as also

we have perused the inquiry report, the orders passed by the disciplinary

authority as also the orders passed by the Appellate and Reviewing

Authority and the relevant documents which referred and relied on behalf

of the parties. We find that the Petitioner was given a complete

2 2014 II CLR 587 3Civil Appeal No.5038 of 2009 decided on 8 February 2016.

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opportunity to defend his case in the disciplinary inquiry. He also

appointed a defence representative. An opportunity to cross examine all

the witnesses examined on behalf of the management, was also accorded

to the Petitioner. The first charge which is quite serious pertains to the

misconduct of misusing the position as Senior Manager in disbursing KCC

loans to 40 borrowers in connivance with a middleman Mr.Behrulal. The

charges are also of illegal gain/gratification by the Petitioner by way of

siphoning of amounts from the loan amount payable to the borrowers.

The other charges are equally serious namely the security documents

pertaining to all these borrowings handled by the Petitioner, being

recovered from the middleman Mr.Behrulal and the further charge of

granting car loan to Mr.Behrulal without taking appropriate security. The

last charge is that there is no pre-sanction or post-sanction inspection by

the Petitioner in respect of 41 KCC loan accounts and no security

documents being available on the record of the bank in respect of the said

accounts.

14. A perusal of the inquiry report clearly reveals that all the

charges are proved on the basis of substantive evidence both documentary

and oral, available on the record of the enquiry officer. In our view, the

grievance of the Petitioner that the preliminary investigation report on the

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basis of which the chargesheet was issued, was not furnished to the

Petitioner, in the facts of the case, cannot be accepted. In this preliminary

investigation, the concerned officer recorded statements of the concerned

borrowers, in respect of whose loan accounts there were irregularities as

noted above. The Investigating Officer who recorded these statements was

examined. Thus, the Investigating Officer was available to be cross

examined by the Petitioner. Further, copies of the documents/ statements

of various borrowers recorded by the Investigating Officer were furnished

to the Petitioner. The Petitioner thus was also at liberty to examine any

other witness to defend his case. If this is the position, we find that

merely because the Investigation Report was not furnished to the

Petitioner, would not cause any prejudice. If the Investigating Officer was

not to be examined and various statements of the persons whom the

Investigating Officer had recorded, were not to be furnished to the

Petitioner, then, surely the complexion would have been different. Further

learned Counsel for the Petitioner could not point out the prejudice which

has been caused to the Petitioner in asserting a breach of natural justice

on this count. Thus, in our opinion, the contention on behalf of the

Petitioner that non-furnishing of the Investigation report resulted in

violating the principles of natural justice, cannot be accepted. In any

event, the chargesheet does not refer to any investigation report to

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substantiate the charges. In fact, the chargesheet sets out the details of

the 40 loan accounts, copies of the said accounts and the copies of the

versions of various borrowers alongwith the supporting withdrawal forms.

The contention of the Petitioner that there was an investigation report

appears to be only on the basis of the following wordings of the

suspension order:-

" SUSPENSION ORDER Whereas serious acts of omissions and/or commissions

surfaced during investigation, as briefly narrated herein below are

alleged to have been committed by you during the course of duties as Senior Branch Manager at Bank's Mahidpur Branch from 10.07.2010 to 03.06.2011." (emphasis supplied)

Surely the Respondent was within its authority to form an opinion on

some material to pass a suspension order. In fact this material itself was

furnished to the Petitioner. We also do not find any reference to any

investigation report in the chargesheet. The contention of the Petitioner

of any breach of principles of natural justice on this count, therefore, is

required to be rejected. We need not delve any further on this issue.

15. There is much substance in the contention as urged on behalf

of the Respondents that in fact none of the assertions on behalf of the

Petitioner to challenge dismissal order are worthy of any consideration, in

view of the categorical admission of the charges made by the Petitioner in

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his letter dated 18 October 2012 wherein the Petitioner has

unconditionally accepted these charges and prayed that he be forgiven.

This position so taken by the Petitioner is further compounded by the

Petitioner's subsequent letter dated 15 December 2012 wherein he has

stated that he has accepted the charges because he was under mental and

financial stress, and repeated his request to be forgiven as also stated that

he shall remain faithful to the Respondent in the remaining part of his

service. It is thus clear that not only the Petitioner admitted the charges,

albeit the charges stood substantially proved in the departmental enquiry.

If the petitioner on his own volition admitted the charges then we see no

infirmity in the Inquiry Officer to record a cumulative finding that the

charges stood proved. Admittedly the Inquiry Officer did not, merely

proceeded on the admission of the charges by the Petitioner, which he

could have given the clear position in law, but also recorded his findings

on a full-fledged departmental enquiry and in the terms of substantial

documentary and oral evidence which unequivocally demonstrated that

the Petitioner had indulged into misconduct as alleged in the chargesheet

and recorded that the charges against the Petitioner stood proved. This is

sufficient for the disciplinary authority in the departmental proceedings to

take a decision applying the 'principles of preponderance and probability'

and impose a punishment as permissible under the Rules. This approach

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cannot be faulted. In the light of this clear factual position, a reliance of

the Petitioner on the decision "Prafulla Chandra Behera Vs. Dena Bank

and Ors." (supra) is not well founded.

16. As regards the admission of charges by the Petitioner in the

inquiry proceedings, the Respondents are appropriate in placing reliance

on the decision of the Division Bench of this Court in the case of

"Employees' State Insurance Corporation, New Delhi & Ors. Vs.

A.V.Tungare & Ors."(supra). The Division Bench of which one of us

(G.S.Kulkarni,J.) was a member, adverting to position in law in the

decisions of the Supreme Court in the case (I) Additional District

Magistrate (city) Agra vs Prabhakar Chaturdevi & anr., 4; (II)

Channabasappa Basappa Happali vs .State of Mysore 5; (III) Delhi

Transport Corporation vs. Shyam Lal6; (IV)Chairman and Managing

Director vs Goparaju Sri Prabhakar Haribabu7; (V) Manoj H.Mishra vs

Union of India8, has made the following observations:-

"17. .. ... ... ... ...In this context, to appreciate the consequence of admission of a fact the general position in law can be seen by referring to the provisions of Section 58 of the Evidence Act. Section

58 deals with the facts which are admitted and hence not required to be proved. It provides that no fact need to be proved in any proceedings which the parties thereto or their agents agree to admit 4(1996)2 SCC 12 51971(1) SCC 1 6(2004 III CLR 287 SC) 7(2008 II CLR 338 SC) 8(2013)6 SCC 313

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at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in

force at the time they are deemed to have admitted by their pleadings. The proviso to this section states that the Court may in its

discretion, require the facts to be admitted to be proved otherwise than by such admissions.

The 1st respondent in writing had admitted to the charges and hence as a legal requirement such admission becomes relevant. The charges

which are admitted by the 1st respondent were not required to be proved and the inquiry can be said to be rightly closed. Pertinently the 1st respondent agreed to close the enquiry.

... ... ... ....

25. Having considered the aforesaid settled position in law that once

an employee has admitted to the charges and that there is no cogent material to show that the admission of the charges was recorded

under duress or force or pressure and that the admission was unconditional and in unequivocal terms, no fault can be found in the Inquiry Officer closing the inquiry proceedings. In the present case

the disciplinary authority on the basis of the inquiry report which recorded the admission of the 1st respondent held that the charges

have been proved. In our view, there was nothing unlawful on the part of the disciplinary authority proceeding on such admission made by the 1st respondent to pass the order of dismissal considering the

seriousness of the charges."

17. In a recent decision of the Supreme Court in the case of

Surjeet Singh Bhamra Vs. Bank of India & Ors.9 their Lordships have

held that as a matter of fact when the charges in the chargesheet are

admitted, there was no need for the bank to hold any inquiry into the

charges and the charges having so proved on admission, the bank was

9Civil Appeal No.5038 of 2009 decided on 8 February 2016.

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justified in imposing the punishment as prescribed in the Rules. It was

observed thus:-

"48) As a matter of fact, since the appellant admitted the charges

leveled against him in the charge-sheet, there was no need for the Bank to have held any inquiry into the charges. When the charges stood proved on admission of the appellant, the Bank was justified in imposing punishment on the appellant as prescribed in the

Rules. We, therefore, find no ground to interfere in the punishment order as we also find that having regard to the nature and gravity of the charge, the punishment imposed on the appellant appears to

be just and proper, calling no interference therein.

49) The next submission of the learned counsel for the appellant

that since the appellant had unblemished career throughout in his service period, the disciplinary proceedings initiated against the

appellant were not called for and deserve to be quashed also have no substance.

50) Suffice it to say, once the appellant admitted the charges,

appropriate punishment as prescribed in the Rules could be inflicted on him. It was for the Appointing Authority to have taken

into account the seriousness of the charge and overall performance of the appellant while imposing punishment. It was done by the authorities concerned in this case as would be clear from mere

perusal of the punishment order. ... ... ... ..."

18. Resultantly the challenge of the Petitioner cannot be accepted

and necessarily fails. The Writ Petition is accordingly dismissed. No order

as to costs.

              (G.S.KULKARNI, J.)                              (ANOOP V. MOHTA, J.)