Shri P.K. Mudgil (Since ... vs Union Of India & Another
2009 Latest Caselaw 3078 Del

*             HIGH COURT OF DELHI: NEW DELHI

             Judgment reserved on: July 30, 2009
           Judgment delivered on: August 10, 2009

+                    W.P. (C) No. 1974 of 1987

       Shri P.K. Mudgil (since deceased)
       Through Legal heirs                    ...    Petitioner
                  Through: Mr. G.D. Gupta, Sr. Advocate, with
                             Mr. S.K. Gupta & Mr. Vikram Saini
                             Advocates.

                               versus

       Union of India & another         ...   Respondents
                  Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

*

1. In the year 1979, petitioner- P.K. Mudgil, was the

Branch Manager of The State Bank of Indore (hereinafter

referred to as the „respondent-bank‟), at Patankar Bazar,

Lashkar, Gwalior and is said to have committed certain

irregularities in the conduct of the affairs of the Branch office

of respondent-bank and in March, 1985, a charge-sheet was

served upon him which was followed by a Departmental

W.P. (C) No. 1974 of 1987 Page 1 enquiry. The Enquiry Officer, vide his Report of 14th January,

1986, Annexure-A (Colly.), found that charge of recklessly

giving overdraft to the parties, causing loss of over Rupees

Eight lacs to the respondent-bank, stood proved against the

petitioner. Consequently, the Disciplinary Authority, vide

order of 19th March, 1986, Annexure -A (Colly.), imposed the

penalty of "removal from service" upon the petitioner.

Appeal, Annexure-C, was preferred by the petitioner against

the order of his "removal from service". Before that, the

petitioner had filed this writ petition challenging the order of

the Disciplinary Authority. During the pendency of this writ

petition, petitioner‟s appeal was decided by the respondents

vide order, Annexure R-15. Thereafter, petitioner had to

amend the writ petition to impugn the order, Annexure R-15,

of the Appellate Authority. Quashing of order of "removal

from service" and of reinstatement was sought by the

petitioner in this writ petition. However, during the pendency

of this writ petition, the petitioner had left this world and his

legal representatives have been substituted, who are now

seeking quashing of the order of "removal from service" and

the consequential benefits.

2. The grounds on which the impugned order of "removal

from service" is assailed are that the order of the Appellate

W.P. (C) No. 1974 of 1987 Page 2 Authority as well as of the Disciplinary Authority are not

reasoned one and that the Disciplinary Authority did not call

for the bank records of Lashkar Branch, which could have

shown that the petitioner was not at fault. Non-application of

mind is alleged by contending on behalf of the petitioner

that the impugned order has been passed at the instance of

the Executive Committee, which was pre-determined to

punish the petitioner.

3. The stand of the petitioner is that vide letters,

Annexure- C-1 & C-2, documents were sought by the

petitioner to meet the charge-sheet effectively but the said

documents were not given to the petitioner as the

Presenting Officer had purposely said that the documents

are not on the record.

4. According to the Petitioner, yearly Audits and

Inspections are carried out in the Bank and it is surprising

that the alleged irregularities were detected after a period of

five years and, in fact, the alleged loss to the bank is not of

Rupees Eight lacs but is of Rupees Three lacs and rest of it,

is the interest component. Petitioner claims that a grave

prejudice has been caused to him because the documents

required to meet charge were not supplied to him and the

W.P. (C) No. 1974 of 1987 Page 3 alleged irregularities were committed by the Petitioner in the

year 1979, whereas he was charge-sheeted after inordinate

delay of five years, i.e., in the year 1985. According to

Petitioner‟s counsel, in view of the aforesaid shortcomings,

the impugned order of his dismissal from service deserves to

be set aside.

5. In the counter affidavit filed by the contesting

Respondent No. 2 and 3, they have stated that the Petitioner

was Branch Manager at Respondent‟s bank at Lashkar in the

Gwalior Branch during the period from 1978 to 1980 and he

had advanced huge loans aggregated to Rupees Sixty lacs

and out of these advances, loans of about Rupees Thirty lacs

was reported to be sticky and doubtful and serious

irregularities were reported regarding advancement of

overdraft facility of more than Rupees Eight lacs. According

to the Respondents, copy of all the documents relied upon

by the Respondent - Bank was furnished to the Petitioner

and copy of the evidence recorded during the inquiry

proceedings have been placed on record as Annexure R-1. It

has been made clear by the Respondent that out of eleven

documents sought by the Petitioner, two documents were

supplied and regarding the rest of the documents, a

declaration (Annexure R-1C) was made before Inquiry

W.P. (C) No. 1974 of 1987 Page 4 Officer, by the Presenting Officer that these documents are

not traceable in the bank records. A grave doubt about the

existence of these documents was also expressed in the

Declaration (Annexure R-1C).

6. Regarding non-detection of the alleged irregularities

committed by the Petitioner in the monthly returns, the

stand of the contesting Respondent is as under:-

"The Petitioner is trying to confuse the monthly returns with the "control returns" whereas purpose and contents whereof are altogether different. A control return is a detailed statement regarding identity, constitution, worth, nature of facility, reason for granting the facility and details of securities obtained for each advance granted which enables the controlling authority to oversee whether the discretionary powers are being judiciously exercised by the Branch Manager. In monthly return, all these details are not contained and the same is called for only for statistical purposes."

7. It has been pointed out in the counter affidavit by the

Respondent that in the Audit Report, there were adverse

comments regarding several accounts including the

transactions in question, in the years 1980, 1981 and 1983

and when this was brought to the notice of the higher W.P. (C) No. 1974 of 1987 Page 5 authorities, show cause notice was issued to the Petitioner

and thereafter, disciplinary proceedings were initiated

against the Petitioner and thus, there is no inordinate delay

in taking action against the Petitioner. According to the

Respondents, the impugned order removing Petitioner from

service does not suffer from any illegality or infirmity.

8. In the rejoinder filed by the Petitioner, the contents of

the writ petition have been reiterated.

9. Learned Senior Counsel for the petitioner has been

heard and the material on record as well as decisions

reported in 1967 SLR 759 (SC); (1986) 3 SCC 229; (1998) 6

SCC 651; (2003) 9 SCC 480; (2005) 6 SCC 636; and (2006) 5

SCC 88, have been perused.

10. The twin grounds, on which the impugned order is

assailed are; (1) non-supply of documents and (2) delay of

five years in initiation of the disciplinary proceedings against

the Petitioner. First of all, I would deal with the aspect of

non-supply of documents. The details of the documents

MEx.1 to MEx. 3 and DEx.2 to DEx.14 find mention in the

Inquiry Report (Annexure-A) and on these documents, the

charges against the Petitioner are based. Document -

Annexure P-3, is the declaration made by the Presenting

Officer before the Inquiry Officer giving details of the

W.P. (C) No. 1974 of 1987 Page 6 documents which have been supplied to the Petitioner and

also about the documents, which were not available. Vide

Note (Annexure P-4), the relevancy of documents, which are

not supplied to the Petitioner, is sought to be shown.

11. Regarding non-supply of copies of monthly returns, it is

evident from the counter affidavit filed by the Respondent

that monthly returns are only in the nature of information

while the control returns are in the nature of analytical study

of the individual accounts and the limits sanctioned. Thus, it

is abundantly clear that in the monthly returns, the details

regarding supporting documents are not contained and the

monthly returns are furnished for statistical purpose only

12. However, it is not reflected in Note, Annexure P-4, or in

the appeal (Annexure-C) as to what prejudice the Petitioner

has suffered for want of these documents. It is not in dispute

that the charge against the Petitioner was of not obtaining

security documents from six borrowers to whom an overdraft

facility was extended and the document sought for by the

Petitioner were the security documents, which according to

the Petitioner were furnished by the said borrowers.

13. It is a matter of record that the power of the Petitioner

to grant clean overdraft facility was up to Rupees Seven

thousand five hundred only till August, 1979, which was

W.P. (C) No. 1974 of 1987 Page 7 subsequently enhanced to Rupees Fifteen thousand only and

as per charge sheet (Annexure-I), which is based upon

document MEx. 1, Petitioner has exceeded his powers to

grant overdraft facilities on various occasions. It is not the

case of the Petitioner that the Petitioner had not been

confronted with the audit objections, or that the audit

objections were motivated. In the typical facts of this case,

without any hesitation, it can be said that non supply of the

documents, referred to in Annexure P-4, did not vitiate the

Inquiry proceedings as the Petitioner has failed to show as to

what serious prejudice has been suffered by him.

14. The decisions reported in "Tirlok Nath vs. Union of India

and Others", 1967 SLR 759 (SC); "Kashinath Dikshita vs.

Union of India and others", (1986) 3SCC 229; and "State of

U.P. vs. Shatrughan Lal and Another", (1998) 6 SCC 651,

relied upon by the Petitioner are distinguishable on facts and

do not advance the case of the Petitioner as it has been

found in the instant case that the documents sought were

not available and so, the present case is not of deliberate

non-supply of documents. However, the Inquiry held against

the Petitioner does not stand vitiated in the absence of any

prejudice suffered by him on account of non-supply of

documents sought.

W.P. (C) No. 1974 of 1987 Page 8

15. In considering the aspect as to whether the delay has

vitiated the disciplinary proceedings, the court has to

consider the nature of charge, its complexity and on what

account, the delay has occurred. If the delay is unexplained,

prejudice to the delinquent employee is writ large on the

face of it, as the delinquent employee has a legitimate

expectation that the disciplinary proceedings against him

are concluded expeditiously. Delay causes prejudice to the

delinquent employee unless it can be shown that he is to be

blamed for delay or, when there is a proper explanation for the

delay in conducting the disciplinary proceedings.

16. In the above background, the factual matrix of this case has to

be seen. The stand of the Respondents is that during the Audit

Inspection, it was detected that several accounts in Petitioner's

Branch office, were highly irregular and in irregular advances

made by the petitioner, the security documents were not on

record for inspection at the time of Audit. Such lapses were

examined and analyzed in the light of the Departmental

Instructions and a report regarding these lapses was

received by the Competent Authority in February, 1985.

17. In view of the aforesaid, the delay occasioned in taking

action against the Petitioner stands by and large explained.

W.P. (C) No. 1974 of 1987 Page 9 Inquiry Officer in his report (Annexure-A) has concluded that

no adverse inference can be drawn merely because the

charge sheet was issued in the year 1985 for the

acts/omissions committed by the Petitioner in the year 1980.

In the appeal (Annexure-C) filed by the Petitioner, it has not

been stated that as to how the delay has adversely affected

the case of the Petitioner or that the delay was deliberate

and motivated. The decision relied upon by the Petitioner are

not of any help as in the case of "P.V. Mahadevan vs.

Md.T.N. Housing Board", (2005) 6 SCC 636, the inordinate

delay in initiation of the disciplinary proceedings was of ten

years and there was no convincing explanation for it. It is not

so, in the present case.

18. In the case of "M.V. Bijlani vs. Union of India and

Others", (2006) 5 SCC 88, the delay in initiation of

disciplinary proceedings was of six years and since the

inquiry proceedings were found to be misdirected, the delay

aspect was one of the consideration for quashing the

disciplinary proceedings. However, in the instant case, the

delay occasioned stands explained and therefore, delay per

se in holding of the Departmental Inquiry is not fatal.

W.P. (C) No. 1974 of 1987 Page 10

19. The Inquiry Report (Annexure-A) does not disclose any

non-application of mind. Rather, I find it to be a well

reasoned report which contains the assessment of evidence

and the conclusion arrived thereupon. In the case of "S.N.

Mukerjee vs. Union of India", (1990) 4 SCC 594, it has been ruled by

the Apex Court that when the Appellate Authority confirms the

decision of the Disciplinary Authority, then it need not to give

separate reasons.

20. The order of the Appellate Authority (Annexure R-15) is

not a non-speaking order and infact it does disclose full

application of mind and it concurs with the findings of the

inquiry officer. When the Appellate Authority confirms the

order of the Disciplinary Authority, then detailed reasons

need not be given. Thus, no fault can be found in the order of the

Appellate Authority.

21. The penalty of removal from service inflicted upon the

Petitioner is said to be highly excessive as it has been

asserted on behalf of the Petitioner that the bank has also

effected the recovery of the alleged loss. Reliance has been

placed upon a decision of the Apex Court in "Kailash Nath

Gupta vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and

Others", (2003) 9 SCC 480, wherein it has been said that in

W.P. (C) No. 1974 of 1987 Page 11 appropriate cases, court can direct the Authorities concerned

to re-consider the nature of punishment awarded to the

Delinquent Officer. Indeed it can be done, but not in the

instant case. Because it is neither evident from the Inquiry

Report, impugned order nor the Appellate order that the

financial loss caused due to the misconduct of the Petitioner,

has been made good. The penalty imposed upon the

Petitioner cannot be said to be disproportionate. No fault can

be found with the impugned order.

22. This petition merits dismissal. Accordingly, this petition

is dismissed.

23. No costs.

SUNIL GAUR, J.

August 10, 2009
pkb/rs




W.P. (C) No. 1974 of 1987                               Page 12