Patel Hemantkumar Revabhai vs Chairman & Managing Director Bank ...
2021 Latest Caselaw 16582 Guj

    C/SCA/27488/2007                           JUDGMENT DATED: 22/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 27488 of 2007

                                  With
           CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2011
            In R/SPECIAL CIVIL APPLICATION NO. 27488 of 2007

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                 PATEL HEMANTKUMAR REVABHAI
                            Versus
    CHAIRMAN & MANAGING DIRECTOR BANK OF BARODA & 2 other(s)
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Appearance:
MR RAMNANDAN SINGH(1126) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1,3
MR BIJU A NAIR(5703) for the Respondent(s) No. 1
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     Date : 22/10/2021
                 COMMON ORAL JUDGMENT

. Civil Application (For Amendment) i.e. Civil Application No.2

of 2011 in Special Civil Application No.27488 of 2007 is allowed as

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

prayed for. Amendment to be carried out accordingly.

1. This petition under Article 226 of the Constitution of India has

been filed by the petitioner for the following relief:

"7(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue writ of mandamus or writ of certiorari or any other appropriate writ, order or direction against the respondents and be pleased to quash and set aside the impugned order dated 1.11.2004, passed by the respondent No.1, holding that the order dated 19.8.2003 passed by the respondent No.3, be illegal and unlawful."

2. The facts in brief are as under:

2.1. The petitioner was appointed on the post of Head

Clerk in the year 1977. Subsequently, he was promoted to the

post of Manager in the Branch Office. At the time of incident,

for which the charge-sheet was issued the petitioner was

working as Branch Manager of Savli Branch of Vadodara

District.

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

2.2. A charge-sheet came to be issued on 19.2.2001. In

brief, it was imputed that while working as a Manager, the

petitioner had failed to protect the interest of the Bank, did not

discharge the duties with utmost integrity and honesty, did not

perform duties with utmost care and diligence etc.

2.3. A departmental proceeding was held and after

regular departmental inquiry, an inquiry report was submitted

on 20.10.2001. Copy of the inquiry report was given to the

petitioner to which he responded. By an order dated 19.8.2003,

the petitioner was removed from service of the Bank with an

observation that such removal shall not be a disqualification for

future employment.

2.4. The petitioner filed an appeal and by an appellate

order dated 1.11.2004, the appeal was dismissed. Hence, this

petition.

3. Mr. Ramnandan Singh, learned counsel for the petitioner made

following submissions:

3.1. Mr. Singh submitted that the departmental inquiry

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

was vitiated, inasmuch as, no material documents were

supplied.

3.2. He further submitted that the inquiry was carried

out by an officer of the same rank i.e. an officer of Scale-II

which was in violation of the Circular of 2013 which provided

that the inquiry officer should be senior in rank to the officer

inquired against.

3.3. He further submitted that though the appeal was

made to the Executive Director, the decision on the appeal was

rendered by the Chairman, denying the petitioner an

opportunity of mercy petition.

3.4. Mr. Singh further submitted that his act of

advancing loans was with a view to promote the financial

interest of the Bank and if ultimately some of the accounts had

turned NPA, the petitioner could not be blamed.

3.5. Mr. Singh further submitted that the exercise of

issuing a charge-sheet and removing him from service was

vindictive as he had entered into an argument with one Senior

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

Officer Mr. Naik.

3.6. Mr. Singh took the Court through the order of

dismissal, the order of the appellate authority and also to the

written submissions that the petitioner had filed and the

findings of the inquiry authority and he would draw the

attention of the Court especially to certain allegations and

justify his stand. He would, for example to prove that the

allegation No.6 was unjustified, submit that the borrower had

promised to settle the earlier loan shortly, and therefore the

crop loan was sanctioned. The crop loan was a regular account

and recoveries were made.

3.7. With respect to allegation No.8, Mr. Singh invited

the attention of the Court to the Written Submissions at page

No. 140. Similarly, drawing the attention of the Court to

allegation No.18, he would submit in defense that the two

Cheques of Rs.50,000/- and Rs.75,000/- which were purchased

for Vijay Sinh, Proprietor of Target Seizing Agency were upon

telephonic instructions of the Regional Manager. This matter

was already known to the Regional Officers of the Branch at

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

Baroda.

3.8. Similarly, with regard to the allegation No.19, he

would submit that there was violation of principles of natural

justice, inasmuch as, the examination in chief of the witness,

was written by the Inquiry Officer after he left the inquiry.

3.9. Mr. Singh would further submit that the entire

proceeding of inquiry is in violation of principles of natural

justice as documents demanded were never supplied. In fact,

there was no complaint that the petitioner had extended the

loans with a view to favour any borrower or with a corrupt

motive.

3.10. Mr. Singh has relied on the following decisions:

(a) Assistant General Manager v. Thomas Jose and another

reported in 2000(10) SCC 280 (Para No.4)

(b) State Bank of Bikaner and Jaipur v. Nemi Chand

Nalwaya reported in 2011(4) SCC 584 (Para No.11)

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

(c) S.R. Tewari v. Union of India reported in 2013(6) SCC

(d) D.M. Parmar v. Panchamahal Vadodara Grahmin

Bank reported in 2004 GLHEL - SC 202658 (Para No.11.2.)

(e) Vinodbhai V. Gujarati v. G.S. Dothre reported in

2000(0) GLHEL-HC 213771 (Para No.25)

(f) Rajinder Lal Capoor v. UCO Bank and another

reported in 2006(3) Law Herlad 2063 (Para Nos.20 and 21)

(g) Antony Gnanamuthu v. Assistant General Manager,

Disciplinary Authority (Industrial Relations Division), Union

Bank of India reported in 2011(8) MLJ 1 (Para No.28)

4. Mr. Darshan M. Parikh, learned counsel has appeared for

respondent No.3 - Bank of Baroda. He made following

submissions:

4.1. Mr. Parikh would submit that it was not necessary

for the petitioner to have been responsible or shown any

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

corrupt motive. The act of the causing loss to the Bank itself

was a misconduct. He would submit that the reading of the

order of removal from service and the contents thereof would

indicate that the petitioner had caused substantive loss to the

Bank.

4.2. He would further submit that the inquiry was

conducted in consonance with the procedural Rules and, there

was no violation of principle of natural justice. Inviting the

Court's attention to Certificate dated 20.7.2001, Shri Parikh

would submit that in-fact it was evident that all the documents

that the petitioner had asked for, were offered for inspection,

the petitioner had inspected the same and had signed on

Certificate of having so inspected the document.

4.3. Shri Parikh in support of his submission would rely

on the following decisions:

(a) Disciplinary Authority v. Nikunja Biharipatnaik

reported in 1996 (9) SCC 69

(b) Tara Chand Vyas v. Chairman and Disciplinary

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

Authority and others reported in 1997(4) SCC 565

(c) General Manager (P) Punjab & Sind Bank and others

reported in Daya Singh

(d) Union of India v. P. Gimaselaram reported in AIR

2015 SC 545

(e) Oriental Bank of Commerce v. R.K. Uppal reported in

2011 AIR SCW 5779

(f) SCA No.17251 of 2013 dated 22.2.2016 in the case of

Gujarat State Co-operative Marketing Federation Limited v.

Controlling Authority appointed under the Payment of

Gratuity Act and another of Gujarat High Court.

(g) Charanjit Lamba v. Commanding Officer, Souther

Command reported in AIR 2010 SC 2462.

4.4. He would submit that the aforesaid decisions

would show that if the conduct of a Branch Manager results in

major financial loss to the Bank, no other punishment except

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

removal is warranted, inasmuch as, no leniency can be shown.

4.5. Mr. Parikh would further submit that the order of

removal was with a clause that it shall not disqualify the

petitioner from future employment.

5. Having considered the submissions made by the learned

advocates for the respective parties, firstly dealing with the

contention that there was violation of principles of natural

justice, the same needs to be nipped in bud.

6. On record, is a Certificate signed by the petitioner dated

20.7.2001 wherein the petitioner has categorically stated that

he has inspected the documents that were offered to him. In

view of this categorical acceptance of procedural formalities

having been complied with, it is not open for the petitioner now

to turn around and cry foul.

7. As far as the question with regard to the procedural lapse of the

statement of one Shri R.B. Prajapati being given in the

language which the petitioner did not understand is concerned,

one needs to examine the order of removal from service and

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

the reasons assigned therein. Reading of the order indicates

that the evidence sheet of the Management Witness Shri R.B.

Prajapati was in Gujarati language and was duly read and

accepted by the witness and signed by him. The deposition

therefore clearly was in Gujarati language which the petitioner

understand.

8. With regard to the argument of Shri Ramnandan Singh that

there was no imputation of any financial loss or that the loans

were advanced with an oblique motive or corrupt intention

cannot stand in context of the nature of duties of the Branch

Manager, what has come on record is that the petitioner

advanced crop loans without assessing crop wise cost of

cultivation. Shri Singh's argument that he could not fill in the

form No.116(B) is also not accepted and rightly so because the

format of such form could have been prepared on a simple

sheet which he did not.

9. Assessing the findings of the Inquiry Officer and the order of

removal and that of the appellate authority would indicate that

while working as Branch Manager, the petitioner granted crop

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

loans to 10 borrowers though there were over-dues and those

whose accounts were NPA. In similar cases, some of the

borrowers had not settled their earlier crop loans and had not

even paid the single installment of earlier outstanding loans.

Despite this factual position being easily available as a Branch

Manager, the petitioner sanctioned and renewed crop loans or

enhanced the limits of the existing loans without prior

verification and, therefore, if in the perception of Disciplinary

Authority, the petitioner was negligent, the same cannot be

faulted with. In certain cases, on perusal of the order of

removal, it would be evident that the petitioner never

demanded documents while extending or enhancing the limit

for disbursement of loans which accounts ultimately became

NPA.

10. The petitioner purchased two Cheques aggregating

Rs.1,20,000/- under Clean Bill Purchase Facility payable to one

Vijay Singh who was not maintaining any account with the

Bank. No documents were obtained from beneficiary. The

advance of Shri Patel that he did so on instructions passed on

by higher authorities cannot stand to defend him as he did

C/SCA/27488/2007 JUDGMENT DATED: 22/10/2021

nothing to obtain confirmation from the Regional Officer or

Dispatching the documents to the Office on very next date. This

defense therefore is clearly an after thought.

11. Reading of the order of dismissal and the order of the

Appellate Authority would indicate that sufficient substantial

reasons sustainable in law have been given by the authority

which make out a case where the petitioner has acted in a

manner exhibiting negligence in extending loans. As a

employee of the Bank, it is his duty to act diligently as he holds

a position of trust. It is well settled by several decisions of this

Court when on record, it is proved that an employee has failed

to stand upto the trust that is wanted of him as a Bank

employee, the findings of Disciplinary Authority cannot be

found faulty or perverse.

12. In view of above, this Court would not interfere with the order

of penalty. Hence, the petition deserves to be dismissed and

accordingly, it is dismissed. Rule is discharged. No costs.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA