Jange Ram Gondwal vs Chairman & Managing Director & Anr
2019 Latest Caselaw 2960 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        16.05.2019
                                       Pronounced on:      01.07.2019
+     W.P.(C) 3033/2012
      JANGE RAM GONDWAL                                     ..... Petitioner
                  Through              Mr.Shekhar G. Devasa, Adv. with
                                       Mr.Manish Tiwari, Adv.

                         versus

      CHAIRMAN & MANAGING DIRECTOR & ANR ..... Respondents
                   Through  Mr.Jagat Arora, Adv. with Mr.Rajat
                            Arora & Mr.Niraj Kumar, Advs.
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                             JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby to

quash the impugned orders/proceedings dated 03.11.2011 and 23.02.2012

passed by the respondents- Disciplinary Authority as well as Appellate

Authority awarding the penalty of „compulsory retirement from service of

the Bank‟, and consequently, reinstate the services of the petitioner with

respondents' Bank with consequential benefits and cost of the writ petition.

2. The brief facts of the case of the petitioner are that on 24.10.1978, the

petitioner was appointed as a clerk in the respondents' Bank and thereafter,

on 03.06.1985, promoted to the cadre of Junior Management Scale-I Officer.

On 11.07.1989, sum of ₹500/- transferred from the saving Bank account

No.25500 to saving Bank STF-75 after obtaining the duly authorized letter

of Mr.Vinod Rai in favour of Bank, as Mr.Rai owed ₹500/- to the petitioner.

However, after lapse of 1½ years from the transaction, the said Mr.Rai

lodged the complaint to the Bank and alleged that the petitioner has

withdrawn an amount of ₹500/- from his account unauthorisedly.

3. On 03.09.1991, Mr.Vinod Rai wrote a letter for withdrawal of

complaint dated 28.08.1991 addressed to the respondent Bank. Since there

was no misconduct of the petitioner, therefore, the letter dated 03.09.1991

was accepted by the Bank. However, after 6 years from the complaint,

inquiry was initiated against the petitioner by the respondent-Bank based on

two articles of charges which are as under:-

(1) While functioning as Assistant Manager at Nangloi Branch, New

Delhi, during the period between 03.12.1985 and 15.07.1992, he

unauthorisedly/fraudulently transferred a sum of ₹500/- from SB

A/c No.25500 of Shri Vinod Roy, a customer of the Branch, to his

SB A/c No.STF-75 on 11.07.1989 and thereafter, he created/

fabricated documents to cover up his fraudulent act.

(2) He was deputed to DTC Dichaon Kalan Extension Counter

attached to Nangloi Branch during the period between 18.07.1989

and 23.10.1990 to work there as Officer In-Charge and while

functioning as such, he recommended/caused to arrange loans, LD

519/90 on 01.07.1990 for ₹35000/-; LD 735/90 on 28.09.1990 for

₹35,000/-; LD 917/90 on 13.12.1990 for ₹25,000/-; and additional

LD of ₹15,000/- under LD 519/90 on 02.04.1991 against the

security of SSD 3/90 (VCC 55/90 was converted in to SSD 3/90

subsequently), VCC 82/90, VCC 83/90 and SSD 3/90

respectively, standing in the name of a minor depositor Master

Sanju, Smt.Sunitha Gondwal, his wife was appointed as guardian

of Master Sanju till 17.03.1997 by Hon'ble District Judge of Delhi

in Guardianship Case No.128/1988 vide court order dated

25.04.1990. The petitioner not only failed to place on Bank's

record, a copy of court order but also unauthorisedly

arranged/caused to arrange the above LDs in the name of his wife-

Smt.Sunita Gondwal against the deposits standing in the name of a

minor, in contravention to the orders of the Court. Thereby, he

surreptitiously allowed his wife Smt.Sunitha Gondwal to derive

undue pecuniary benefits and exposed the Bank to the risk of

financial loss and making the Bank liable for violation of Court

orders.

4. Accordingly, the petitioner appeared before inquiring authority and

filed his defense. The Disciplinary Authority vide its order dated 04.01.1999

held that the petitioner committed breach of regulations, wherein two

articles of charges are proved and recorded. Therefore, he was terminated

from the services of the Bank.

5. Being aggrieved, the petitioner preferred an appeal and the same was

dismissed by the Appellate Authority on 10.03.1999. Thereafter, the

petitioner filed Writ Petition No.5260/1999 before this Court and the same

was disposed of vide its order dated 08.09.2011 holding that first article of

charge is proved in part and the second article of charge is not proved,

hence, set aside the impugned order therein and placed the matter again

before the DA to determine the appropriate penalty in light of its judgment.

It was also ordered that consequential order depending on the penalty order

will also be the issue by the DA within the same period. Accordingly, the

Disciplinary Authority vide impugned order dated 03.11.2011 directed the

petitioner "compulsory retirement from service with immediate effect",

however, without passing consequential order as directed by this Court vide

order dated 08.09.2011. The petitioner challenged the said order in appeal,

however, the appeal was dismissed vide order dated 23.02.2012.

6. Learned counsel for the petitioner submits that the impugned orders

are beyond the scope, terms and direction issued by this Court vide order

dated 08.09.2011, whereby this Court had set aside the orders and placed the

matter before the Disciplinary Authority for determining the appropriate

penalty on the petitioner, but both the Disciplinary Authority as well as the

Appellate Authority have gone beyond the terms of direction issued and

gone to the extent of discussing and giving findings on both the articles of

charges, however, the fact remains that both the orders are already set aside

by this Court.

7. It is further submitted that the petitioner is entitled to suspension

allowance and other benefits from 04.01.1999 to 08.09.2011 under the

Banking regulation nos. 14 and 15 of Syndicate Bank Officer Employees'

(Conduct) Regulations, 1976 and in the light of the judgment passed by this

Court in H.N. Wadhwa vs. Punjab National Bank & Another in W.P.(C)

7343/2014 and also in S.M. Gupta vs. Oriental Bank of Commerce & Ors.:

115 (2004) DLT 257, wherein it was held that once the order of disciplinary

authority is set aside and a person is to be taken in service, then in

accordance with the regulations, the charged officer is deemed to be on

suspension and suspension allowance would have to be paid to such a

charged official.

8. It is further submitted that the petitioner has put more than 20 years of

his life towards the service of Bank and has suffered the penalty of

compulsory retirement. The petitioner is entitled to pensionary benefits in

light of the judgment passed by this Court in case of Kamlesh Pratap Singh

vs. United Bank of India: (2015)222 DLT (CN B) 14 and judgment passed

by the Hon'ble Supreme Court in the case of Bank of Baroda vs. S.K. Kool

(D) Through LRs & Anr: 2014 (2) SCC 715.

9. It is submitted that the respondents have been taking varied stand;

firstly, they replied that the request or benefits cannot be considered in view

of the pending writ petition as it is subjudiced, on the other hand, replied

that the petitioner is not entitled to arrears of salary, EPF, leave encashment,

gratuity and pension. Thirdly, replied that gratuity amount is forfeited and

self-contribution of petitioner's EPF has already been paid and the

management share of EPF is payable, subject to adjustment of direct and

indirect liabilities and financial loss caused to the Bank, however, no such

liability and loss caused to the Bank ever quantified by the respondents.

10. Further submitted that on perusal of the impugned order dated

23.02.2012 passed by the Disciplinary Authority whereby observed that the

punishment was awarded for unauthorisedly/fraudulently transferring a sum

of ₹500/- from SB A/c No.25500 of Shri Vinod Roy, a customer of the

Branch, to his SB A/c No. STF-75 and created/fabricated documents to

cover up his fraudulent act. He, thus, availed undue pecuniary benefit in a

superstitious manner in detriment to the interest of the Bank. In terms of the

Court order, the earlier matter was placed again before the DA who has in

the light of judgment determined the appropriate penalty based on the

inquiry findings. The cheque for ₹500/- and the authority letter were not

placed on Bank records on 11.07.1989 and were obtained after the date of

transaction. The Court has also observed that there was no letter of

authorization in the Banks record when the transfer of ₹500/- took place and

found no error in the conclusion arrived at by IA.

11. Learned counsel submitted, whereas, on perusal of an order of this

Court dated 08.09.2011, no such words are used in the text/body of the

judgment. It is not in dispute that no criminal complaint was filed against the

petitioner, the complainant was not examined and most importantly, the

complaint was withdrawn on 03.09.1991 by the complainant.

12. On the other hand, learned counsel for the respondent Bank submitted

that the action against the petitioner had been taken in pursuance to the

chargesheet dated 30.01.1997 and the order dated 08.09.2011 passed by this

Court in W.P.(C) 5260/1999. A chargesheet dated 30.01.1997 was issued to

the petitioner wherein it was alleged against him that he had failed to

discharge his duties with utmost integrity and honesty and indulged in

conduct unbecoming of a status of Bank Officer and had thus contravened

Regulation 3(i) read with Regulation 24 of the Syndicate Bank Officers

Employees (Conduct) Regulations 1976. The inquiry in respect of the said

chargesheet was constituted and the Inquiry Officer has given his findings

dated 30.10.1998, wherein the charges levelled against the petitioner were

held to be proved. The Disciplinary Authority of the Bank had thereafter

passed the orders of the dismissal from service vide order dated 04.01.1999.

The said order was maintained by the Appellate Authority and the appeal

preferred by the petitioner was rejected, vide orders dated 10.03.1999.

13. Being aggrieved, the petitioner filed W.P.(C) 5260/1999 before this

Court and vide its orders dated 08.09.2011, this Court had partially allowed

the writ petition holding therein that only the first part of the charge against

the petitioner has been proved and, therefore, the quantum of punishment

will have to be re-examined by the Disciplinary Authority of the Bank.

Subsequent thereto, the Disciplinary Authority of the Bank vide its order

dated 03.11.2011 considering the judgment of this Court had re-examined

the punishment and the punishment was modified from dismissal from

service to one of compulsory retirement. The petitioner thereafter had

preferred a Review Petition against the judgment dated 08.09.2011 and the

same was rejected vide order dated 23.12.2011. The petitioner had also

challenged the orders passed by this Court in W.P.(C) 5260/1999 by filing a

LPA being LPA No. 122/2012. The said appeal has been admitted by this

Court vide orders dated 17.02.2012. Subsequent to the passing of the order

by the Division Bench, the departmental appeal which was preferred by the

petitioner against the orders of the Disciplinary Authority dated 03.11.2011

had also stood rejected vide orders dated 23.02.2012.

14. Learned counsel for the respondent Bank submitted that the present

petition has been filed against the orders dated 03.11.2011 read with orders

dated 23.02.2012 passed by the Disciplinary Authority/Appellate Authority

of the respondent Bank. The said orders are in consonance with the

principles of natural justice and there has been no violation of Articles 14,

21 and 38 and 311 of the Constitution of India as has been alleged. It is

pointed out that Article 311 of the Constitution would not apply in the case

of the petitioner at all, as he is not a government servant and the said article

is not applicable to the Bank officers.

15. It is further submitted that as a matter of record, a complaint was

made by Shri Vinod Rai and thereafter, withdraw the same. The petitioner

might have won over the complainant which compelled him to withdraw the

said complaint. The averments clearly show that the petitioner and the

complainant had private dealings which were not in the knowledge of the

Bank and action was initiated only on receipt of the complaint by a

customer.

16. Counsel for the respondent has pointed out that inquiry proceedings

are to be read as a whole. The petitioner cannot pick and choose the

sentences/questions in a piecemeal and cite them to his advantage. The

deposition of the witness in the inquiry has to be read as a whole and the

same cannot be read in bits and pieces, as has been done in the petition.

17. Counsel for the respondent submitted that the findings given by the

learned Single Judge of this Court in the order dated 08.09.2011 cannot be

challenged in the present petition, the same has become final. Moreover,

subsequent to the orders dated 08.09.2011, the Disciplinary Authority of the

respondent Bank has modified the punishment and has converted the

punishment from dismissal to compulsory retirement.

18. Counsel for the respondent has drawn the attention of this Court to

para 6 of the order dated 11.02.2013 passed in LPA No. 122/2012 filed by

the petitioner, whereby this Court has reproduced as under:-

"6. In our opinion, since the authorization letter was not available in the record of the bank, it was for the appellant who produced the aforesaid document during the course of the inquiry and not upon the bank to produce the complainant to prove that the document in question was actually authored by the complainant. Even if the bank did not examine the complainant as a witness, nothing prevented the appellant from examining him as a witness, in order to prove the document relied upon by him. It was pointed out by the learned counsel for the appellant that one of the witness admitted during the course of inquiry that the signature on the authorization letter were identical to the signature on the complaint which Mr. Vinod Rai had sent to the bank, though the same were different from the signature of Mr. Vinod Rai with the bank. The contention was that the witness of the bank having admitted the signature of the complainant on the authorization letter produced by the appellant during the course of inquiry, the aforesaid document could not have been excluded from consideration and if that document is taken into consideration, it would be evident that the complainant had actually authorized the appellant to transfer Rs.500/- from his account to the personal account of the appellant. We, however, find ourselves unable to agree with the learned counsel for the appellant. In our opinion, primarily it is for the author of the document to come in the witness box to prove the document purporting to be written by him and reliance

upon the opinion of the another witness in this regard would not be appropriate in the absence of any satisfactory explanation for not examining the author of the document and also considering the fact that even in the LPA 122/2012 page 5 of 8 opinion of that witness, the signature on the authorization letter were different from the signature of the complainant available in the record of the bank. We, therefore, find no fault with the view taken by the learned Single Judge with respect to the first article of charge."

19. Counsel for the respondent has relied upon the case of R.

Thiruvirkolam vs. Presiding Officer and Another: 1997 SCC (L&S) 65

whereby held that in a case where the inquiry was found to be defective by

the Labour Court and it then came to the conclusion on its own appraisal of

evidence adduced before it that the dismissal was justified, the order of

dismissal made by the employer in a defective inquiry would still relate to

the date when that order was made. It was further held that unless the order

of punishment is set aside by a competent Court on a valid ground, the order

of punishment made by the employer continues to operate.

20. I have heard learned counsel for the parties at length and perused the

material available on record.

21. It is not in dispute that in order dated 08.09.2011 passed in the

W.P.(C) 5260/1999 filed by the petitioner, this Court has observed, "the

petitioner is unable to explain how Mr.Vinod Rai could have possibly issued

a cheque on 09.07.1989 from a cheque book which was issued to him only

on 15.07.1989. Also, why did the petitioner hold on to the authorisation

letter (MEX-14) also undated, for so many years and thought it fit to

produce it only on 14.10.1996 when questioned by the VO? Consequently,

this Court is unable to find any error in the conclusion arrived at by the IA

that there was no letter of authorisation in the Bank's record when the

transfer of ₹500/- took place. However, this was only a part of the first

charge. The remaining part that the petitioner "created/fabricated

documents to cover up his fraudulent act" and that he availed pecuniary

benefits "in a surreptitious manner" were not held by the IA to be proved.

This would have a bearing on the assessment of the gravity of the

misconduct and the commensurate penalty." However, held that finding of

EA on the second Article of Charge is based on evidence and is

unsustainable in law. Accordingly, only a part of first charge can be held to

have been proved against the petitioner.

22. In view of the above observations made by this court, the orders of

compulsory retirement cannot be set aside.

23. Thus, the punishment order of dismissal from service has been set

aside by this court.

24. Consequent to the order passed, the disciplinary authority vide

impugned order dated 03.11.2011 directed the petitioner "compulsory

retirement from service with immediate effect", however, without passing

consequential order as directed by this Court vide order dated 08.09.2011.

25. In case of S.K. Kool, (supra), it is held that an employee who has

rendered a minimum of ten years of service and fulfils other conditions, only

can qualify for pension in terms of Regulation 14 of the Regulations.

However, such of the employees who are not eligible and have not put in

required number of years of qualifying service shall not be entitled to the

superannuation benefits though removed from service in terms of Clause

6(b) of the Bipartite Settlement. It is further held that such of the employees

who are otherwise entitled to superannuation benefits under the Regulations

if visited with the penalty of removal from service with superannuation

benefits shall be entitled for those benefits and such of the employees

though visited with the same penalty but are not eligible for superannuation

benefits under the Regulations shall not be entitled to that.

26. The Regulations 14 and 15 of Syndicate Bank Officer Employees'

(conduct) Regulations, are reproduced as under:-

"14. Subsistence allowance during suspension :

1) An officer employee who is placed under suspension

shall, during the period of such suspension and subject to sub-regulations (2) to (4) be entitled to receive payment from the bank by way of subsistence allowance on the following scale, namely -

a) Basic Pay :

i) For the first three months of suspension 1/3 of the basic pay which the officer employee was receiving on the date prior to the date of suspension irrespective of the nature of enquiry.

ii) For the subsequent period after 3 months from the date of suspension :

1) where the inquiry is held departmentally by the Bank, 1/2 of the Basic Pay the Officer Employee was drawing on the date prior to the date of suspension; and

2) where the enquiry is held by an outside agency, 1/3 of the Basic Pay which the officer employee was drawing on the date prior to the date of suspension for the next three months and 1/2 of the Basic Pay which the officer employee was drawing on the date prior to the date of suspension for the remaining period of suspension.

b) Allowances : For the entire period of suspension, Dearness Allowance and other allowances excepting Conveyance Allowance, Entertainment Allowance and Special Allowance, will be calculated on the reduced pay as specified in items (i) and (ii) of Clause (a) and at the prevailing rates or at rates applicable to similar category of Officers.

2) During the period of suspension an Officer Employee shall not be entitled to occupation of a rentfree house or free use of the Bank's car or receipt of conveyance or entertainment allowance or special allowance.

3) No Officer Employee of the Bank shall be entitled to receive payment of subsistence allowance unless he furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.

4) If, during the period of suspension, an Officer Employee retires by reason of his attaining the age of superannuation, no Subsistence Allowance shall be paid

to him from the date of his retirement.

15. Pay, allowances and treatment of service on termination of suspension:

1) Where the competent authority holds that the Officer Employee has been fully exonerated or that the suspension was unjustifiable, the Officer Employee concerned shall be granted the full pay to which he would have been entitled, had he not been suspended, together with any allowance of which he was in receipt immediately prior to his suspension, or may have been sanctioned subsequently and made applicable to all Officer Employees.

2) In all cases other than those referred to in Sub- Regulation (1), the Officer Employee shall be granted such proportion of pay and allowance as the competent authority may direct; Provided that the payment of allowances under this Sub-Regulation shall be subject to all other conditions to which such allowances are admissible; Provided further that the pay and allowances granted under this Sub-Regulation shall not be less than the subsistence and other allowances admissible under Regulation 14.

3) a) In a case falling under Sub-Regulation (1), the period of absence from duty shall, for all purposes, be treated as a period spent on duty;

b) In a case falling under Sub-Regulation (2), the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically directs, for reasons to be recorded in writing, that it shall be so treated for any specific purpose.

27. The similar issue came before this Court in H.N. Wadhwa (supra),

whereby this Court held that if these regulations did not exist, then, it would

have been opened to an employee to state that once the order of the

departmental authority is set aside that charged employee will be taken to be

in service and he has to be paid all the consequential benefits of being in

service, and to avoid this position, the suspension is deemed to continue

even during the second phase of the departmental proceedings after the

earlier order of the disciplinary authority is set aside and proceedings are to

continue against the charged official. However, the object of this provision

is not to deprive even the suspension allowance to a charged officer

inasmuch as the charged officer during the period of departmental

proceedings against him, may not be entitled to service benefits of salary

etc, but, there is no provision of law or any service rule of the respondent

no.1/Bank that a charged employee during the period of departmental

proceedings should not even receive the suspension allowance. Accordingly,

the said writ petition was allowed filed by the Charged Officer.

28. Accordingly, the petitioner is entitled to suspension allowance and

other benefits from 04.01.1999 to 03.11.2011 under the Banking regulation

nos.14 and 15 of Syndicate Bank Officer Employees' (Conduct)

Regulations, 1976 and in the light of the judgment passed by this Court in

H.N. Wadhwa (supra) and also in S.M. Gupta (supra), wherein held that

once the order of disciplinary authority is set aside and a person is to be

taken in service, then in accordance with the regulations, the charged officer

is deemed to be on suspension and suspension allowance would have to be

paid to such a charged official.

29. Since the petitioner has put more than 20 years of his service (now

retired) and has suffered the penalty of compulsory retirement, the petitioner

is entitled to pensionary benefits in the light of judgment of this court in case

of Kamlesh Pratap Singh (supra) and of Hon'ble Supreme Court in case of

S.K. Kool (supra) including EPF, leave encashment and gratuity, if not

already paid, with interest @ 6% per annum within four weeks from the

receipt of this order.

30. In view of above, the petition is allowed.

(SURESH KUMAR KAIT) JUDGE JULY 01, 2019 rhc/ab