K.S. Kathuria vs State Bank Of Patiala And Ors.
2013 Latest Caselaw 4717 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6637/2001

%                                                    10th October, 2013

K.S. KATHURIA                                             ......Petitioner
                          Through:      Mr. N.K.Vohra and Mr. Jitender
                                        Vohra, Advocates.


                          VERSUS

STATE BANK OF PATIALA AND ORS.                .... Respondents

Through: Mr. Vishnu Mehra and Ms. Sakshi Mittal, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by one Sh. K.S.Kathuria who has been

dismissed from services in terms of the orders passed by the disciplinary

authorities of the respondent no.1-State Bank of Patiala. Petitioner seeks

quashing of the orders of the departmental authorities; of the disciplinary

authority dated 6.3.2000 and the appellate authority dated 12.12.2001.

2. Before I turn to the arguments urged on behalf of the petitioner,

it has to be noted that the petitioner disputed the content of the charge sheet,

however, during the enquiry proceedings petitioner gave a specific written

statement on 13.12.1999 admitting the charges. This letter of admission

reads as under:-

"To The Inquiry Officer, Central Vigilance Commission New Delhi-110023 ACCEPTANCE OF CHARGES Sir, I plead guilty to all the charges unconditionally.

                                                   Yours faithfully,


     New Delhi                                     (K.S. Kathuria)
     13.12.1999                                    Charged Officer"

3. In view of the aforesaid admission, no further enquiry was

conducted and the disciplinary authority passed the order of punishment

dismissing the petitioner from services and which order has been upheld by

the appellate authority vide its order dated 12.12.2001.

4. It also needs to be mentioned at this stage that scope of hearing

in a petition under Article 226 of the Constitution of India which is filed to

challenge the order of the departmental authorities is extremely limited.

Order of departmental authorities are challenged only if there is perversity in

the findings or there is an issue as to lack of jurisdiction in the authorities

which passed the orders. In addition to the above grounds, orders of the

departmental authorities can also be challenged on the ground of doctrine of

proportionality for seeking lesser punishment than as imposed by the

departmental authorities.

5. In the present case counsel for the petitioner repeatedly sought

to urge that admission made by the petitioner is of no effect and the

departmental proceedings are not validly held in which the management has

not proved its case by leading of evidence and the charged official should be

hence held not to be guilty. Reliance in this regard is placed upon the three

judgments. First is the judgment of the Supreme Court in the case of Delhi

Transport Corporation Vs. Shyam Lal AIR 2004 Supreme Court 4271.

Second is the judgment of the Gujarat High Court in the case of

Natavarbhai S. Makwana Vs. Union Bank of India and Ors. (1985) (II)

LLJ 296 Guj and third is the judgment of a Division Bench of this Court in

the case of Engg. Projects (1) Ltd. Vs. S.K. Malhotra 2006 RLR 369 (DB).

6. Before I turn to the relevant paras of the aforesaid judgments

which have been read in support of the arguments of the petitioner, it bears

mention that counsel for the petitioner sought to argue by placing reliance

upon para 18 of the writ petition that the letter of admission dated

13.12.1999 was dictated by the enquiry officer and it was got typed from the

steno in his chamber and which aspects are not denied in the counter-

affidavit and therefore it is shown that the entire proceedings have to be set

aside because petitioner was promised only one or two increments which

will be stopped in a symbolic manner and he will be exonerated by giving

him any other punishment.

7. To the aforesaid arguments urged on behalf of the petitioner, I

give no credence whatsoever inasmuch as not only is the petitioner not an

illiterate person; he was in fact the manager of a bank; but what is relevant to

note that the petitioner after admitting to the charges in terms of his letter

dated 13.12.1999, even when the first opportunity came for questioning his

admission at the time of making representation to the disciplinary authority

against the enquiry officer, petitioner in his representation dated 19.1.2000

again admitted that he did in fact make admission admitting to the guilt. He

only however stated that this was done by him because petitioner could not

afford to sustain another heart attack. The relevant portion of this

representation dated 19.1.2000 of the petitioner reads as under:-

"In this connection, I have to submit that the charges, as contained in the Charge-sheet served on me on 16-12-1998, were admitted by me unconditionally, though I could have proved my innocence and that there had been no malafide on my part. More so on account of constraint of my indifferent health and to save myself from the agony of mental humiliation at the fag end of my career (retiring on 31-03-

2000), I had no alternative but to admit the charges, since I cannot

afford to sustain another heart attack. Needless to add, I was operated for Bypass in September 1995 and as such on the advice of my family and for the best interest of my family, it was decided by me to avoid all stress and strains coupled with humiliation in the departmental enquiry and as such to admit the charges leveled against me in the Charge- sheet."

8. In view of the above, I have no hesitation to hold that once the

petitioner admitted the charges against him in terms of his letter dated

13.12.1999, and again reiterated the same in his letter dated 19.1.2000, it

does not lie in the mouth of the petitioner to claim that there was any alleged

coercion or any promise to exonerate him as stated in para 18 of the writ

petition. I may note that facts which are stated in para 18 of the writ

petition, if were correct, ought to have been mentioned at the first instance

and which was to be in the representation of the petitioner dated 19.1.2000,

but the petitioner made the averments which are made in para 18 of the writ

petition only for the first time before this Court. Therefore I reject the

argument that the admission of the petitioner does not bind him or that in

spite of the admission full fledged enquiry had to be conducted. Once,

admissions are made, and they are not even asserted to be erroneously made

or sought to be withdrawn on the first opportunity when it ought to have

been done so, I do not think that such admissions thereafter having been

made and re-affirmed can be withdrawn subsequently to claim by this writ

petition that full fledged enquiry should have been made.

9. The judgment of the Supreme Court in the case of Delhi

Transport Corporation(supra) relied upon by the petitioner in fact goes

against the petitioner because in the facts of the said case after admitting to

the guilt by the workman, Industrial Tribunal set aside the punishment on the

ground that the enquiry officer had no evidence except the hearsay evidence

and the learned Single Judge of the High Court set aside the findings of the

Tribunal but the Division Bench of the High Court set aside the judgment of

the learned Single Judge. Supreme Court set aside the judgment of the

Division Bench and in fact observed in para 7 of the judgment relied upon

that it is a settled position of law that admission is the best piece of evidence

against the person making admission. No doubt, it is stated that it is open to

the person making the admission to show why the admission is not to be

acted upon, however, in the facts of the present case where the petitioner re-

affirmed his admission in terms of his letter dated 19.1.2000, I do not think

that petitioner can be allowed to argue that admission should not be acted

upon.

10. So far as the judgment of the Gujarat High Court in the case of

Natavarbhai S. Makwana (supra) is concerned, it may be noted that the

facts of that case were peculiar because details with regard to misconduct

were not given in the chargesheet. This is not so in the present case where

the chargesheet is a detailed chargesheet accompanied by annexures giving

details of the various transactions in question. There are specific allegations

against the petitioner of allowing cheques to be cleared beyond the

sanctioned limit, not making entries in the register with respect to the

dishonoured cheques of the party and thereby causing false inflation in the

available balance for utilization by the customer and also of not reporting the

over drawings to the appropriate authorities and in fact concealing the same.

The result of the illegal acts of the petitioner was that benefit of an amount

of `14 crores was taken by the customer. No doubt, 14 crores as compared

to a limit of 100 crores which is alleged to have been given to the customer

may be relatively less, but in the absolute sense surely the sum of `14 crores

is a large amount. Therefore, clearly benefits were taken by the customer of

huge amounts and the fact that subsequently the amounts were adjusted

cannot take away of the indiscipline and infraction committed by the

petitioner by allowing benefits of crores of rupees in the account of the

customer. The judgment in the case of Natavarbhai S. Makwana (supra) is

therefore distinguishable on facts.

11. So far as the Division Bench judgment of this Court in the case

of Engg. Projects (supra) is concerned, once again the said judgment goes

against the petitioner because in the said judgment, Division Bench has held

that if perusal of the enquiry proceedings show that charged official admits

the charges against him no evidence is thereafter required to be lead against

the charged official and he can straightway be given punishment. I therefore

fail to understand as to how the said judgment supports the petitioner. If the

contention of the petitioner is that after the impugned orders of the

departmental authorities are sustained he would not be given certain

monetary benefits including gratuity, then, at that stage, that issue would be

examined as to whether after the orders of the departmental authorities are

taken as final, what would be the monetary benefits which would be

available to the petitioner. Therefore the judgment in the case of Engg.

Projects (supra) in fact goes against the petitioner.

12. The next point which was argued on behalf of the petitioner

was that in the present case petitioner's appointing authority was Chief

General Manager, however, he has been removed by the General Manager

who is below in rank than the Chief General Manager and therefore the

order of the disciplinary authority is liable to be set aside on this ground

itself. As a sequitur of this argument, order of the appellate authority is also

challenged by arguing that the order of the appellate authority is by the Chief

General Manager who actually ought to have been the disciplinary authority

and if the appellate authority is the Chief General Manager, appeal hence

cannot be decided by the Chief General Manager which has been done in the

present case.

In this regard, once again the arguments urged on behalf of the

petitioner are misconceived because petitioner himself has filed Annexure P-

5 to show delegation of powers of the appointing authority of the respondent

no.1-bank dated 7.3.1996. This circular shows that an MMGS-III officer

whose appointing authority was the Chief General Manager by virtue of this

circular OPD/14 dated 7.3.1996 became the General Manager. Therefore,

the appointing authority of the petitioner is the General Manager and

therefore since the disciplinary authority which has passed the order in this

case is the General Manager it cannot be said that the petitioner has been

dismissed in service by a person of a post which is lower than the appointing

authority. Appointing authority is the General Manager and since the

disciplinary authority is the General Manager there is no illegality in order

of the disciplinary authority.

In support of this argument, reliance on behalf of the petitioner

is sought to be placed upon the judgment of the Supreme Court in the case of

Rama Tyagi Vs. Delhi Development Authority 87 (2000) DLT 725.

However, reference to this judgment itself shows that the judgment draws

out the distinction between when a person is to be removed by an authority

by which "he was appointed" and the expression "appointing authority". If

as per the relevant rule what is required is removal by a person not

subordinate to that by which "he was appointed", the issue would have been

different, but that is not so in the present case because the expression which

is used is not "he was appointed" but the "appointing authority" as per the

rules. Therefore, the judgment in the case of Rama Tyagi (supra) in fact

distinguishes the said judgment as regards the facts of the present case and

the contention which is urged on behalf of the petitioner in the present case.

This argument of the petitioner is therefore rejected. Since the argument of

the petitioner is rejected that disciplinary authority was an authority lower

than the appointing authority, consequently the sequitur argument of the

appellate authority not having jurisdiction because the appellate authority

was a Chief General Manager also gets rejected in terms of the circular dated

7.3.1996 because admittedly the Chief General Manager is a post higher

than the General Manager and the appellate authority therefore in this case

could be the Chief General Manager as the disciplinary authority was the

General Manager in the present case.

13. The next argument, which is urged on behalf of the petitioner

in the present case is that actually the Chief General Manager acted as the

disciplinary authority of the petitioner and therefore, the disciplinary

authority could not be an officer of the lower post being the General

Manager. For this purpose, reliance is placed upon pages 106,107 and 64 of

the paper book to show that as against another enquiry against the petitioner,

disciplinary authority was a Chief General Manger. In my opinion, merely

because in another case, bank may possibly have committed an error (and

complete details of which case are not before me to finally opine one way of

the other) cannot mean that the action taken in the present case should fall

merely on account of any fault with respect to the disciplinary authority and

the appellate authority in another case i.e the present case. In the present

case, I have already held that as per the circular dated 7.3.1996, appointing

authority is the General Manager and who could therefore be the disciplinary

authority and disciplinary authority actually and in fact was the General

Manager in this case. Also the appellate authority in the present was the

Chief General Manager and the post of Chief General Manager is higher

than the post of General Manager. The argument therefore urged on behalf

of the petitioner is accordingly rejected because in the facts of the present

case, actions which have been taken and the orders which have been passed

by the disciplinary and appellate authorities are as per the rules/law.

14. The next argument which is urged on behalf of the petitioner is

invoking of the doctrine of proportionality by relying upon the averments

which are made in para 27 of the writ petition alongwith similar averments

which are made in the rejoinder-affidavit. The sum and substance of all

these averments are that petitioner claims that actually the respondent-bank

in terms of the transactions over the period in question from 1990 till 1994

has earned crores of rupees as profit, transactions in this case being irregular

yet having not been so pointed out by the Chief General Manager of the

Branch or by the inspecting officials, that the account of the customer stood

squared off after the subject transactions, and therefore, it is argued that the

petitioner should not to be imposed with the harsh punishment of dismissal

from services.

15. The law with respect to Courts interfering with the punishment

imposed by the departmental authorities is well settled. It is settled law that

unless and until the punishment imposed shocks the judicial conscience,

Courts do not interfere with the punishments imposed by the departmental

authorities. It is seen in the present case that petitioner has admitted to all

the charges, and which were very serious charges of wrongly allowing

benefits of amounts of Rs. 14 crores beyond the sanctioned limit of

customer, not making such entries in the register and conceding these

aspects, and therefore, once such infraction and indiscipline is proved

against the charged officer, merely because the accounts are subsequently

adjusted or the defaults are not pointed out by the Chief General Manager or

Manager or that the bank earned crores of rupees cannot entitle the petitioner

to challenge the punishment by invoking doctrine of proportionality. The

ground of the petitioner that mistakes are on account of a computer fault

cannot be accepted on account of the categorical admission made of the

charges made by the petitioner.

16. One other argument which was argued on behalf of the

petitioner is that appellate authority has passed an order in appeal without

actually deciding the appeal filed but what has been decided is only a

reminder. In my opinion, this argument is an argument of desperation

because admittedly petitioner filed an appeal. Since the appeal was not

decided petitioner gave reminders. Merely because after the reminder the

appeal is decided does not mean that it is the reminder which is decided and

not the appeal.

17. Finally, counsel for the petitioner argues that actually the

appellate authority before passing the impugned order dated 12.12.2001 has

passed two earlier orders dated 5.9.2001 and 19.9.2001 in the appeal. I have

with utmost respect found the argument to be a ludicrous one because the

two letters dated 5.9.2001 and 19.9.2001 only informed the petitioner that he

is not eligible to get benefits of gratuity, pension etc and also with respect to

leave encashments and are not orders of the appellate authority deciding the

appeal. These two letters are filed as Annexures P-34 and P-35 to the writ

petition and the same read as under:-

Letter dated 5.9.2001

" PFG/855 Date 05-09-2001 Sh. K.S.Kathuria, 31, Pragati Apartment, Paschim Vihar, New Delhi

Dear Sir, PAYMENT OF GRATUITY/PENSION/PF BANK'S CONTRIBUTION

With reference to your letter dated 9.7.2001, we inform that you are no eligible for any of the benefits i.e. gratuity, Pension & Bank's contribution to P.F. as you were removed from Bank's service for committing acts of misconduct.

      Yours faithfully,

      (CHIEF MANAGER (PPFG)

      Letter dated 19.09.2001

      PPFG/... 888                          Dated: 19.09.2001
      Sh. K.S.Kathuria,
      31-Pragati Apartment,
      Pachim Vihar,
      New Delhi.

      Dear Sir,
      Payment of Leave Encashment

With reference to your letter dated 09.07.2001, we inform you that you are not eligible for payment of leave encashment because all leaves to the credit of an officer lapses on removal from service as advised by the Chief Manager, Per. Administration Department vide their office note dated 14.09.2001.

Yours faithfully,

(Chief Manager(PPFG)

18. I am really pained to note that most frivolous arguments have

been urged on behalf of the petitioner. In view of the above, the writ petition

is without merit and being a gross abuse of the process of law in a case

where the petitioner has given benefit of huge amount of 14 crores to the

customer and admitted the same, accordingly, the same is dismissed with

costs of Rs. 50,000/-. Respondent no.1 can recover the costs in accordance

with law.

OCTOBER 10, 2013                              VALMIKI J. MEHTA, J.
ib/Ne