Telangana High Court

J. Chandramouleswara Raju, ... vs Andhra Bank,Rep.By Chairman Cum ... on 9 March, 2023

Bench: A.Abhishek Reddy

       THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

                 WRIT PETITION No.1183 of 2012

ORDER:

This Writ Petition, under Article 226 of the Constitution of

India, is filed by the petitioner seeking the following prayer:

"....to issue a Writ or order or direction, more particularly one in the nature of Writ of Mandamus by calling for the records pertaining to the letter No.666/20/V/T-950/1019 dated 31.12.2009 and letter No.666/20/V/T-950/1097 dated 30.12.2010 and declare the action of 3rd / 2nd respondents in inflicting the penalty of dismissal from Bank service on the petitioner after the date of superannuation as illegal, arbitrary and void in law and the action of not releasing the balance of Term Deposit Receipts and withholding of property documents under the guise of the disciplinary proceedings as illegal and accordingly, set aside or quash the penalty of dismissal with a direction to the respondents to settle and pay the retirement benefits of the petitioner forthwith, and pass such other order or orders..."

2. The case of the petitioner, in brief, is that he was appointed

in the respondents-bank on 20.12.1974 in the Clerical cadre and

thereafter, he got promotions. While he was working as Officer

Scale-II in Sultan Bazar Branch and his retirement was due on

31.08.2008, he was served with order of suspension vide

Lr.No.688/20/V/O-3002/1914 dated 13.08.2008 alleging some

inquiry into certain irregularities. Subsequently, another letter

dated 16.08.2008 was issued by the respondent No.3 stating that

the petitioner would be continued in service beyond his retirement 2 AAR,J WP No.1183 of 2012

date i.e, 31.08.2008 for the purpose of completion of disciplinary

proceedings and passing of final orders. However, in terms of letter

No.688/20/V/317 dated 30.08.2008 issued by the respondent

No.4, the petitioner had retired from service on attaining the age of

superannuation on 31.08.2008. The respondent No.3 vide letter

No.666/20/V/T-950/CS/35 dated 15.06.2009 issued charge sheet

contemplating an Article of Charge alleging that the petitioner had

done fraudulent/unauthorized transactions resulting in loss to the

tune of Rs.9,42,979/- to the Bank. The petitioner submitted his

reply dated 28.07.2009 protesting the issuance of charge sheet

after lapse of more than 10 months from the date of his retirement.

It is further stated that the petitioner in his anxiety to get

disciplinary proceedings finalized early, has merely admitted the

factual aspect of handing over of his personal Term Deposits worth

about Rs.10 lakhs way back in August, 2008 to ensure that no

loss is caused to the Bank, duly mentioning that there is a serious

discrepancy in the Charge Sheet in statement of loss/

misappropriation to the extent of Rs.4,75,018/- and finally

requested to settle his terminal benefits and pay the balance

amount of his term deposit by taking a lenient view. However, the 3 AAR,J WP No.1183 of 2012

respondents initiated domestic enquiry vide letter

No.666/20/V/T950/474 dated 31.07.2009 and conducted the

enquiry in one sitting and the Inquiry Officer submitted his report

dated 30.11.2009 holding the petitioner guilty of the charges

levelled against him, by treating the petitioner's submission as

confessional statement. The petitioner submitted his reply to the

said enquiry report stating that the loss has been overstated to the

extent of Rs.4,75,018/- and the amount to be recovered is only to

the extent of Rs.4,67,961.86 ps but not Rs.9,42,979.86 as alleged.

However, the respondent No.3 vide proceedings dated 31.12.2009

erroneously imposed the penalty of dismissal from service with

immediate effect duly treating the entire period of suspension from

13.08.2008 to 31.08.2008 as not on duty. The petitioner preferred

an appeal before the respondent No.2 and the same was also

disposed of vide proceedings dated 30.12.2010 with an observation

that no new material or justifiable grounds were put forth by the

petitioner and that the penalty imposed is commensurate with the

gravity of misdemeanour. The petitioner submits that due to

compelling family circumstances certain amount was transferred

from one account to other and with a view to remorse the matter, 4 AAR,J WP No.1183 of 2012

he had volunteered to submit fixed deposit receipts whose worth is

more than the alleged misappropriated amount, even before the

charge sheet was issued to him but the respondents did not take a

lenient view in the matter and issued the charge sheet after the

date of superannuation and imposed the impugned penalty of

dismissal from service after superannuation. It is stated that

though the petitioner had cleared the housing loan and inspite of

the letter dated 16.07.2008 issued by the respondent No.4, the

property documents were not released. Therefore, the petitioner

prays this Hon'ble Court to allow the writ petition as indicated

above.

3. The respondents filed their counter affidavit stating that

while the petitioner was working as Deputy Manager at Sultan

Bazar Branch, at Hyderabad, during the period between

25.06.2000 to 31.08.2008, he fraudulently entered certain

transactions for transferring amounts from different heads of the

General Ledger and certain Current Accounts of the customers to

his SOD Account, SB accounts of his wife and daughter to the

tune of Rs.9,42,979.86 causing loss to the Bank to that extent.

Pending enquiry, the petitioner was placed under suspension w.e.f.

                                      5                                  AAR,J
                                                            WP No.1183 of 2012



13.08.2008.     As    the   petitioner   was   due   for    retirement    on

31.08.2008, his services were extended for limited purpose of

completing departmental proceedings in accordance with the

provisions of Service Regulation 20(3) (ii) and (iii) of Andhra Bank

(Officers) Service Regulations, 1982 (for short "ABOSR, 1982"). The

petitioner was served with a Charge Sheet dated 15.06.2009. In

view of the denial of charges by petitioner, the disciplinary

authority has ordered departmental enquiry into the charges

levelled against the petitioner. The petitioner participated in the

Preliminary Hearing proceedings held on 27.11.2009 and pleaded

guilty to the charges levelled against him. In view of the confession

of guilty, the Enquiry Officer submitted his report dated

30.11.2009. The respondent No.3-Disciplinary Authority after

considering the findings of Enquiry Officer and the entire material

on record vis-à-vis, submission made by the petitioner, taking into

consideration the gravity of the charges alleged and established

against the petitioner, imposed the major penalty of dismissal from

services of the bank vide order dated 31.12.2009. Challenging the

same, the petitioner preferred appeal dated 02.03.2010 before the

respondent No.2-Appellate Authority and vide orders dated 6 AAR,J WP No.1183 of 2012

30.12.2010, the Appellate Authority confirmed the punishment

imposed on the petitioner. It is submitted that in due obedience of

the interim order dated 20.01.2012 passed by this Court in

W.P.M.P.No.1464 of 2012 in W.P.No.1183 of 2012, the

respondent-Bank released the title deeds of house belonging to the

petitioner. The proceeds of the fixed deposits standing in the name

of the petitioner after adjusting the dues, were also credited to the

account of the petitioner i.e, SB Account No.131210100001714

with Sri Ramakrishnapuram Branch, Hyderabad on 24.08.2012,

08.10.2012 and 07.02.2013. In view of Regulation 20 (3)(ii) of

ABOSR, 1982, the disciplinary proceedings are deemed to be

pending from the date of suspension of the petitioner i.e,

13.08.2008. Therefore, as a corollary and in consonance with the

rules, the retirement of the petitioner on 31.08.2008 would loose

its significance more so when he was specifically intimated that he

will be continued until the final orders are passed and thus the

respondents prayed this Hon'ble Court to dismiss the writ petition.

4. Heard Sri K.R.K.V.Prasad, learned counsel for the writ

petitioner and Dr. K.Lakshmi Narasimha, learned Standing 7 AAR,J WP No.1183 of 2012

Counsel appearing on behalf of the respondents. Perused the

record.

5. The learned counsel for the petitioner has stated that the

petitioner was initially appointed on 20.12.1974 and thereafter, he

was retired from service on 31.08.2008. That basing on some

unsubstantiated allegations, the petitioner was suspended from

service on 13.08.2008 and the respondent No.3 vide letter

No.688/20/V/O-3002/1914 dated 13.08.2008 sought to take

disciplinary action against the petitioner. That subsequent to the

date of retirement on 31.08.2008, the respondent No.3 has issued

charge sheet on 15.06.2009 vide Letter No.666/20/V/T-

950/CS/35, for which, the petitioner has submitted his reply

dated 28.07.2009. Thereafter, basing on the domestic enquiry,

which was completed in one sitting and by misconstruing the

explanation given by the petitioner, the petitioner was terminated

from service with immediate effect vide letter No.666/20/V/T-

950/1019 dated 31.12.2009. Even though the petitioner has

preferred an appeal before the respondent No.2, the same was

dismissed on 30.12.2010 confirming the order of dismissal. The

learned counsel has stated that the rule under which the 8 AAR,J WP No.1183 of 2012

disciplinary action was sought to be continued against the

petitioner even after retirement i.e., Regulation 20(3)(ii)(iii) of

ABOSR, 1982 has been interpreted by the Hon'ble Supreme Court

in Uco Bank and another vs. Rajinder Lal Capoor1 and Uco

Bank and Another vs. Rajinder Lal Capoor2 and the same was

found to be illegal. The learned counsel for the petitioner has

stated that even though the petitioner was put under suspension

on 13.08.2008, the charge sheet was filed much later i.e, almost

after a gap of 10 months i.e, on 15.06.2009, by which date, the

petitioner had already retired from service on 31.08.2008. That the

initiation of any disciplinary proceedings after retirement of the

employees is not permissible by any stretch of imagination and

therefore, prayed this Hon'ble Court to allow the present writ

petition.

6. Per contra, learned Standing Counsel appearing on behalf of

the respondents has stated that the petitioner has misappropriated

amounts and by misusing his position, has transferred amounts

from the General Ledger to various accounts belonging to himself,

his wife and daughter. That during the period 25.06.2000 to

(2007) 6 SCC 694

(2008) 5 SCC 257 9 AAR,J WP No.1183 of 2012

31.08.2008, the petitioner taking advantage of his fiduciary

relationship at the bank has transferred amounts from the General

Ledger to his own account without any authority of law. With

regard to the judgments relied upon by the petitioner, the learned

Standing Counsel has stated that the Hon'ble Supreme Court

subsequently has doubted the preposition of law laid down in the

earlier judgments, which are relied upon placed by the petitioner

and the matter was referred to a Larger Bench. The learned

Standing Counsel has relied on the judgment in Chairman-cum-

Managing Director Mahanadi Coalfield Limited vs.

Rabindranath Choubey3 and ultimately prayed this Hon'ble Court

to dismiss the present writ petition.

7. A perusal of the impugned order shows that the petitioner

was initially charge sheeted for misappropriating the amount of

Rs.9,42,979/- and the disciplinary authority duly taking into

consideration the evidence on record has held the petitioner guilty

of the charges levelled against him. In the submission given by the

petitioner vide letter dated 17.12.2009, the petitioner has stated as

under:

(2013) 16 SCC 411 10 AAR,J WP No.1183 of 2012

"At the outset, I once again reiterate that I had made an unqualified admission of guilt at the first possible phase (August, 2008) and gave a clear cut undertaking letter to make good the loss duly handing over the term deposits worth about Rs.10.00 lakhs to be adjusted against the said transactions and refund the balance.

Further, I also object and point out that there is a basic error in the charges in terms of the statement of allegations where the amount of loss crystallized to the Bank is grossly overstated.

For example, you will observe the following discrepancies.

Statement-II
                                         Amount already
S.                     Amount                                   Balance to
         Date                            adjusted to the
No.                    reported                                be recovered
                                        respective Heads
 1    03-10-2007        45,509.00      4,926 adj on                2,595.00
                                       05.10.2007
                                       37,988.00 adj on
                                       23.10.2007
                                       (Total Rs.42,914.00
                                       adj)
 2    12-10-2007      3,02,104.00      3,02,104.00 adj on                 ---
                                       27.10.07
 3    27-10-2008      2,82,748.36      ---                     2,82,748. 36
 4    12-02-2008        77,000.00      77,000 adj on                     ---
                                       14.02.2008
 5    12-02-2008        53,000.00      53,000.00 adj on                   ---
                                       14.02.2008
      Total         7,60,361.36        4,75,018.00             2,85,343.36

Statement-III
  Amount          Amount already adjusted                 Balance to be
  reported        to the respective Heads                  recovered
50,055.00                    ---                                  50,055.00

Statement-IV
   Amount         Amount already adjusted                 Balance to be
  reported        to the respective Heads                  recovered
1,32,563.50                  ---                                1,32,563.50


9,42,979.86              4,75,018.00                           4.67.961.86
                                         11                                   AAR,J
                                                                 WP No.1183 of 2012



       Thus,   there    is   overstatement   of   loss/misappropriation   of

Rs.4,75,018/- in terms of charge sheet itself vis-à-vis the branch records and the amount to be recovered comes to Rs.4,67,961.86 and not Rs.9,42,979.86."

However, subsequently, the disciplinary authority/respondent

No.3 did not reduce the amount from Rs.9,42,979.86 to

Rs.4,67,961.86 holding that the said amounts were adjusted by

the petitioner after the fraud was perpetuated and dismissed the

petitioner from service and the same was upheld by the Appellate

Authority/respondent No.2. The learned Standing Counsel for the

respondents has relied upon the Regulation 20(3)(ii)(iii) of ABOSR,

1982 to buttress his contention that the petitioner was suspended

prior to the date of retirement and in accordance with the

provisions of Regulation 20(3) (ii)(iii) of ABOSR, 1982, the

respondent No.2 vide letter dated 16.08.2008 which allowed the

petitioner to continue in service beyond his superannuation for the

limited purpose of completing the disciplinary proceedings and

passing of final orders. Therefore, the ground taken by the

petitioner that passing of the dismissal order after the date of

retirement is without any legal basis cannot be accepted. It is

pertinent to extract Regulation 20(3)(ii)(iii) of ABOSR, 1982 for the

limited purpose of this case, which reads as under:

                                         12                                     AAR,J
                                                                   WP No.1183 of 2012

"(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this Regulation if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him and will be deemed to be pending until final orders are passed by the Competent Authority.

(iii) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned officer will not receive any pay and/or allowance after the date of superannuation."

8. The Hon'ble Supreme Court in Uco Bank and another vs.

Rajinder Lal Capoor's case (1 supra), while interpreting similar

clause pertaining to the UCO Bank, which is pari meteria with the

above rule, held as under:

"Para 21:. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. xxxx.....

Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (2007) 9 SCC 625) this Court held :

                                         13                                    AAR,J
                                                                  WP No.1183 of 2012

"13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.

14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."

It was furthermore observed that :

"20. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."

Para 23: An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law."

9. The Hon'ble Supreme while dealing with the review

application of the above judgment reported in (2008) 5 SCC 257 =

Uco Bank and Another vs. Rajinder Lal Capoor's case (2 supra)

held as under:

"Para 29: In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of 14 AAR,J WP No.1183 of 2012

superannuation must be a statutory rule. A' fortiori it must be a rule applicable to a disciplinary proceedings.

Para 30: There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.

Para 31: Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment."

Admittedly, in this case, the petitioner has retired from service on

31.08.2008 but the charge sheet was filed against the petitioner

only on 15.06.2009 i.e, after a lapse of more than 10 months.

Therefore, it has to be necessarily held in this case that as on the

date of retirement of the petitioner no disciplinary proceedings

were pending against the petitioner. Even though the learned

counsel for the petitioner has relied upon the judgments of Uco

Bank and another vs. Rajinder Lal Capoor's case (referred

supra), it is fairly stated by the learned Standing Counsel for the

respondents that till date, the Larger Bench has not been

constituted and as on date, the law laid down by the Hon'ble

Supreme Court in the two judgments holds good.