Suresh Pathrella vs Oriental Bank Of Commerce And Ors.
2005 Latest Caselaw 664 Del

JUDGMENT

Vikramajit Sen, J.

1. In this writ petition judicial review is prayed for in respect of the punishment inflicted on the Petitioner, viz.- "Removal from Bank service which shall not be a disqualification for future employment". The case against the Petitioner is that while he was Incumbent-in charge at the Branch Office Gurgaon, he had misappropriated an amount of Rs.10 lacs of a customer, namely, Shri G.C. Luthra without his authority/consent with a view to give wrongful gains to the unconnected parties. By these act the Petitioner allegedly failed to discharge his duties with integrity, devotion, diligence and failed to protect the interests of the Bank.

2. Prior to commencing Departmental proceedings against the Petitioner, the Respondent-Bank had called for the opinion of the Central Vigilance Commission (CVC). The first stage advice appears to have been against the Petitioner. Thereafter, the following opinion had been given - "From a perusal of the case it is clear that the main allegation of misappropriation of Rs. 10 lacs is unfounded and the amount actually went to the account of the Bank to be set off against overdrafts of the three firm. The main allegation " misappropriation of Rs.10 lacs is the crux in both Departmental proceedings and the criminal case. The Gurgaon police after investigation has closed the case as unfounded before the CJM. Gurgaon, therefore nothing substantial remains in this matter for proceeding against Shri Pathrella. Accordingly the argument of the Bank that Departmental proceedings and criminal case are different does not hold good and his removal from service was incorrect."

3. The contention of learned counsel for the Respondent is that this was unsolicited advice, a copy of which had not been furnished to the Respondent-Bank. It is relevant to note that second stage advice had not been asked for by the Respondent-Bank. After an adjournment had been requested for, and granted by the Court, in order to enable the Bank to reconsider its decision. An Additional Affidavit has been filed on behalf of the Respondent-Bank, without the leave of the Court. It states as follows:

That from the sequence of the events as emerged from the file of the CVC and other relevant records, it is apparent that the CVC acts only as an advisory body and it is for the departmental authorities to decide as to what action is to be taken against the delinquent official.

8. That in the present case, admittedly, the petitioner had opened an account in the name of Shri Luthra without getting his account opening form or the required signatures, etc. and thereafter credited a sum of Rs. 10 lakhs in the said account which was subsequently transferred to other accounts without the authorisation of the concerned party. The misconduct of the petitioner may not be a criminal act but at the same time it was definitely against the banking norms and therefore the bank was fully justified in taking disciplinary action against him."

4. The position is crystal clear that so far as the Bank is concerned it was fully aware, that the views of the Chief Vigilance Commission are contrary to the findings of the Departmental Enquiry. Even if it was not aware of this advice earlier it was certainly aware of it after the hearing dated 28.1.2005. The matter had been heard at great length on that date and had been adjourned only to enable the Bank to reconsider their decision. Instead of assuaging and correcting the obvious injustice which has already been caused, it has chosen to file the affidavit which only shows that it is clear to them that their action cannot be predicated on the advice of the Chief Vigilance Commission. My attention has been drawn on Section 17 of the Central Vigilance Commission Act, 2003 which enjoins the Bank, since it does not agree with the advice of the Commission, to record reasons in writing and communicate the same to the Commission. No such action has been taken.

5. In the course of the hearing learned counsel for the Respondent had deliberately and consciously denied that the Bank had lodged an FIR in respect of these very events. This statement has been reversed and withdrawn on the intervention and reiteration of the learned counsel for the Petitioner that it was the Bank which lodged the complaint. Such conduct on the part of Advocates, who are an integral part of the justice delivery system, has to be condemned every time it occurs. Be that as it may the act which cannot be ignored is that the Police had thoroughly investigated the matter and returned a finding in favor of the Petitioner. The Petitioner had earlier filed CW No.5105/1998 which was disposed of on 3.4.2002 in the presence of Shri Jagat Arora, learned Counsel for the Respondent Bank. Even in those proceedings it has been recorded as follows:

"The Petitioner has impugned the action of the respondent bank removing the petitioner from service in terms of the impugned order dated 28.5.1998.

Mr. Chadha, learned counsel for the petitioner has contended that the very basis for the action of the bank does not survive in view of the fact that the action against the petitioner was taken on a compliant of one Shri G.C. Luthra. It is stated that the said G.C. Luthra is the person who had committed the fraud and is now been tried by the Criminal Court in FIR 192/2001 in pursuance to disclosure statement dated 19th July, 2001. It is further stated that the disclosure statement has been submitted irrespect of FIR 387/1998 filed against the petitioner. It is stated that the closure report in respect of FIR 387/1998 has been accepted by the CJM, Gurgaon.

In view of the aforesaid the petitioner made a representation for econsideration of the decision to remove from service. It appears from document dated 19.7.2001 that the case of the petitioner was considered to be put up before the Board but since the present petition has been filed by the petitioner against the order of his removal from the bank, it was not considered appropriate to place the matter before the Board.

In view of the aforesaid subsequent development it is agreed that the case of the petitioner be put up before the board/competent authority and be considered. The board/competent authority should give an opportunity to the petitioner to put forth his case and thereafter pass a speaking order. Needful be done within a period of three months.

The writ petition is disposed of in the aforesaid terms.

In case the petitioner is aggrieved by the decision of the board/competent authority, it will open to the petitioner to take out separate proceedings against the same."

6. It is relevant to mention that at the time of the Enquiry the Petitioner was not posted at the Branch Office, Gurgaon and therefore was not in a position to produce documents. Documents including the second Account Opening Form as well as letters addressed by Shri G.C. Luthra authorising the transaction have been unearthed during the police investigation. These were available at least after the hearing held on 3.4.2002. It shows that the said Shri Luthra had addressed a letter to the Petitioner asking him to encash the cheque and to deposit it in the three accounts of 1. M/s. M.K. Fertilizer and Chemicals, 2. M/s. Maharishi Ayurveda Corp. and 3. M/s. Agro Chem. Traders. Shri Luthra was a guarantor for advances made by the Respondent Bank to these companies. This question has been totally glossed over by the Enquiry Officer although the facts must have been brought to his notice. The finding of the Chief Vigilance Commission is that there has been no misappropriation or defalcation of funds. In act by crediting the sums of Rs. 2 lacs, 3 lacs and 5 lacs respectively to the aforementioned three companies the Petitioner had effected recoveries in favor of the Bank and has demonstrated diligence and fidelity of the highest degree. It is nobody's case that the Bank has refunded these aforementioned amounts to any of the third parties. Quite clearly, therefore, the Enquiry Report of Dr. P. Ratnaswamy, Commissioner for Departmental Enquiries is contrary to the records and has resulted in a grave miscarriage of justice. There is another aspect of the case which manifests the bias of the Enquiry Officer. It is that he had prepared a Report on 24.2.1998. In the course of the Enquiry proceedings the Petitioner had submitted that the documents which at that stage were being falsely denied by Shri Luthra were in fact in his handwriting. He had, therefore, mentioned that the Report of the Expert ought to be called for. Instead of acceding to the request at that very stage, a Report behind the back of the Petitioner had been obtained on 16.3.1998, i.e. after the signing of the Enquiry Report where the Petitioner has been found guilty.

7. The scope of judicial review in matters such as these is circumscribed. It does not set as an appellate body. It intervenes where miscarriage of justice is palpably evident on the record. As in its revisory jurisdiction it will correct a decision which cannot possibly be arrived at by any prudent or informed decision maker. I am in entire agreement with the opinion of the Chief Vigilance Commissioner that no case is made out against the Petitioner. He has infact acted as a diligent officer in ensuring that monies are expeditiously credited to accounts which owed money to the Bank. The Enquiry Officer as well as the Respondent-Bank have closed their eyes to the evidence which has been brought forward i.e. letter of said Shri Luthra authorizing transaction as well as the second bank opening form. It has blatantly ignored the opinion of the Central Vigilance Committee as well as the Police who have thoroughly investigated the matter. Since the closure Report had been accepted by the Chief Judicial Magistrate, Gurgaon, the Enquiry Officer has no powers to come to a contrary finding on the factual matrix. The question has been analysed in detail, in Danvir Verma v. Punjab National Bank 2005 (2) AD (DELHI) 237.

8. As has already been noted this petition had been heard at great length on 28.1.2005 and proceedings were adjourned only in the hope that the Respondent-Bank would act as a model employer and would not hesitate to correct an error or miscarriage of justice no sooner it had become evident. Instead of taking this action the entire matter has been argued at great length once again.

9. The impugned order dated 28.5.1998 whereby the punishment of "removal from Bank Service which shall not be a disqualification for future employment" is hereby quashed. The Petitioner shall be entitled to all consequential benefits and reliefs which if not granted within four weeks, shall attract interest at six per cent per annum so far as the monetary content is concerned. Since considerable time of the Court has been wasted, and the Petitioner has been put to inordinate agony for no fault of his own, because of obduracy of the Respondent-Bank in failing to take remedial action even when the truth had become evident, the Petitioner shall be entitled to costs of Rs.25,000/-.