Bombay High Court

Sunil Umakant Mahashabde vs Industrial Devp. Bank Of India ... on 24 October, 2016

Bench: S.V. Gangapurwala

                                                                    WP 248/2013
      
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              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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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.

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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

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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.

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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.

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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

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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

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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:-

"Major Penalties:

(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

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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;