Rajeshkumar vs Bank Of Maharashtra And Others

Urmila Joshi Phalke, J

Heard learned counsel for the parties.

RULE. Rule made returnable forthwith.

By this writ petition, the petitioner has challenged the order of Disciplinary Authority imposing punishment by an order dated 02/05/2019 and order passed by the Appellate Authority and Review Committee which has denied interference in the order passed by the Disciplinary Authority in the enquiry proceedings.

The petitioner was initially appointed as General Clerk on 15/07/1982 in the respondent No.1-Bank of Maharashtra. Subsequently he was promoted to the post of Deputy Manager, Manager, Senior Manager, Chief Manager and also as Assistant General Manager. He retired from service on 31/08/2019 on attaining the age of superannuation. While petitioner was working as a Chief Manager, Loan Tracking Cell, Recovery Department, Head Office, Pune in respondent No.1-Bank he was served with the charge-sheet bearing No.AX-1/ST/DM/E-759/839/2018-19/853 dated 10/12/2018 under Regulation No.8 of the Bank of Maharashtra Officer Employees’ (Discipline and Appeal) Regulations, 1976. That on receipt of the charge-sheet dated 10/12/2018, the petitioner vide communication dated 18/12/2018 requested the Disciplinary Authority to provide him copies of the documents on which the allegations were based or allowed him to visit the concerned branch to verify the documents, so that he could prepare his statement of defence. The respondent No.1-Bank had not replied his communication but served impugned punishment order No.AX-1/ST/DM/E-759/164/2019-20/154 dated 02/05/2019 informing that the copies of the documents on which the allegations were based were already sent to him on 02/01/2019 to enable him to submit his reply but the petitioner had not submitted his statement of defence inspite of reminder dated 21/01/2019. Therefore, the Disciplinary Authority after going through all the records came to the conclusion that the charges levelled against the petitioner were proved and imposed the punishment of “reduction in time scale of pay by one stage for a period of six months with cumulative effect.” On 03/05/2019, in accordance with the order passed by the Disciplinary Committee, Administrative Order was issued by which the said punishment was implemented with effect from 02/05/2019 though the petitioner was retired on 31/08/2019. It was further directed that there would be no restoration of increments. It is the contention of the petitioner that though it is mentioned in the impugned order dated 02/05/2019 that the copies of the documents were sent to him on 02/01/2019 and reminder dated 21/01/2019 but in fact, no such documents or reminder was delivered to him and, therefore, he could not prepare a statement of defence against the charge levelled against him.

The petitioner applied under the Right to Information Act, 2005 (hereinafter referred to as the ‘R.T.I.’ in short) vide application dated 04/05/2019 addressed to respondent No.1-Bank for seeking information and copies of the documents stated to have been supplied by the Bank on 02/01/2019 and the reminder dated 21/01/2019 with proofs of their delivery. But the said information/copies of the documents were not supplied to the petitioner and no response was given to the petitioner till 27/05/2019. Thereafter the petitioner had preferred his appeal on 28/05/2019 before respondent No.2-Appellate Authority who is the Executive Director of the Bank of Maharashtra mentioning all the facts and prayed for setting aside the impugned punishment order dated 02/05/2019 and requested to exonerate him from all the charges levelled against the petitioner in the interest of justice.

During the pendency of the appeal, respondent No.1-Bank supplied the information with reference to his application under the R.T.I. vide letter No.AX1/Legal/R11/2019-20/17360 dated 29/05/2019. By this letter it was informed to him that proof of delivery and office copy of the letter dated 21/01/2019 were not traceable and there was no such note prepared for issuance of order dated 02/05/2019. It is the contention of the petitioner that this reply to his R.T.I. application is sufficient to show that no reasonable opportunity was given to him to defend his case. He further contended that he had filed appeal before the Appellate Authority on the ground that no reasonable opportunity was given to him and principle of natural justice are not complied with. But the Appellate Authority ignored the same and dismissed the appeal. Being aggrieved with the order of the Appellate Authority he preferred Review Petition before respondent No.3-the Reviewing Authority by mentioning all the relevant facts and prayed to set aside the impugned order passed by the Disciplinary Authority as well as the Appellate Authority dated 24/06/2019 and prayed to exonerate him from all the charges. The Reviewing Authority had also not considered his contention and dismissed the Review Petition without assigning any reason. Being aggrieved with the same he filed present petition on the ground that the reasonable opportunity was not granted to him. The Disciplinary Authority as well as the Appellate and the Review Authority had not considered the principles of natural justice and erroneously dismissed the appeal and review petition. He submitted that the opportunity to defend himself was not given to him. Immediately, after receipt of charge-sheet on 18/12/2018, he informed respondent No.1-Bank that no enclosures are found with the memorandum. The copies of the documents on which the allegations are based should have been enclosed with the memorandum enabling him to peruse the same for preparing his statement of defence and requested to provide him the copies of the documents but instead of supplying him copies, the Disciplinary Authority passed the punishment order which is contrary to the Regulations framed by respondent No.1-Bank which are known as Bank of Maharashtra Officer Employees’ (Discipline and Appeal) Regulations, 1976. Thus, the action on the part of respondent No.1-Bank is arbitrary, illegal and liable to be set aside.

The petition was opposed by the respondents on the ground that the relevant documents not only supplied to the petitioner but reminder was also given to the petitioner dated 21/01/2019 asking him to submit his statement of defence. After sufficient opportunity the petitioner had not submitted the statement of defence enquiry was proceeded. The Disciplinary Authority on going through the allegations and documents on record passed an order and imposed minor punishment by reducing his time scale of pay for a period of six months without cumulative effect. Therefore, the grounds mentioned by the petitioner are not available to him. The writ petition is devoid of merits and liable to be dismissed.

Heard Shri Akshay Sudame, learned Counsel for the petitioner. He reiterated the contentions that the reasonable and sufficient opportunity was not granted to the petitioner to defend himself. He also invited our attention towards the communication of the petitioner addressed to respondent No.1-Bank for seeking material documents from respondent No.1-Bank. He further submitted that till 27/05/2019 there was no communication from the Bank about supplying of the documents. The petitioner had filed an application under the R.T.I. which was also not responded and without hearing the petitioner the order of punishment was passed. Against the said order the petitioner had preferred an appeal raising the ground that the reasonable and proper opportunity was not granted to him but the Appellate Authority had also ignored the same. Though the Appellate Authority referred to a note being placed before the Disciplinary Authority, as per information supplied under the R.T.I. Act, 2005 no such note was prepared. Therefore, he approached to respondent No.3- the Reviewing Authority with the same ground. However, the Reviewing Authority had also not considered his contention. He further submitted that the reply submitted by respondent No.1-Bank in respect of his R.T.I. application showed that the communication by which the documents are supplied to him are not traceable as well as there was no process of noting that the said documents were supplied to the petitioner. He further submitted that though the respondents relied upon the extract of outward register but it only showed that there was an entry in the name of the petitioner and the letter was handed over to the Messenger. There was absolutely no evidence to show that the said documents are delivered to the petitioner. The procedure prescribed by the Bank of Maharashtra (Discipline and Appeal) Regulations, 1976 was not followed. Thus, entire material on record was sufficient to show that the reasonable and sufficient opportunity was not granted to the petitioner and, therefore, the Reviewing Authority be directed to consider the Review Application afresh by considering the grounds mentioned therein.

In support of his contention he relied upon Narinder Mohan Arya Vs. United India Insurance Co. Ltd. And ors. (2006) 4 SCC 713 wherein it is held that the Appellate Authority while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule (2) of Rule 37 of the Rules. It is further held that an Appellate order if it is an agreement with that of disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction. He further placed reliance on Divisional Forest Officer Kothagudem and ors. Vs. Madhusudhan Rao (2008) 3 SCC 469 wherein it is held that it is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum. He further placed reliance on Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and ors. (2009) 4 SCC 240 wherein it is held that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority.

On the other hand, Shri M.G. Bhangde, learned Senior Counsel for the respondents submitted that reasonable and sufficient opportunity was granted to the petitioner before passing an order. No reply to show cause notice is filed and, therefore, there is no denial of facts by the petitioner. Disciplinary Authority issued the reminder to the petitioner but the petitioner has not replied and, therefore, respondent No.1-Bank proceeded with the further proceedings and passed the order. No illegality is committed by the Disciplinary Authority. Under Regulation 8, supply of documents while imposing minor penalty was not warranted. The procedure for imposing major penalty was different from the procedure for imposing minor penalty. Punishment order was passed by the Disciplinary Authority after four months. The petitioner could have filed his reply during the said period. The learned Counsel also made a reference to the dispatch register to show service of necessary documents. The writ petition was devoid of merits and liable to be dismissed. In support of his contention he placed reliance on I.D.L. Chemicals Ltd. Vs. T. Gattaiah and ors. 1995 Supp. (3) SCC 573 wherein it is held by the Hon’ble Apex Court that the penalty of stoppage of two increments simpliciter was imposed upon the appellant. He was given a charge-sheet and his explanation was called and taken into consideration. Nothing more need to be done so far as the procedure for imposing minor penalty is concerned. No fault can be found with the penalty of stoppage of two increments imposed by the Bank upon the appellant. He further placed reliance on Syed Rahimuddin Vs. Director General, CSIR and ors. (2001) 9 SCC 575 wherein it is held that during the continuance of the enquiry the delinquent making no grievance on that score but subsequently making a representation in that regard and the enquiry officer rejecting the same as a tactic to stall the enquiry. In such circumstances, the delinquent, held, could not be said to have been really prejudiced by non-supply of the documents. He further placed reliance on State Bank of India and ors. Vs. Narendra Kumar Pandey (2013) 2 SCC 740 wherein it is held that fair procedure does not mean giving of copies of documents or list of witnesses along with charge-sheet though statement of allegations has to accompany charge-sheet when required by service rules. It is further held that where charged officer faced to attend enquiry he cannot contained that inquiring authority should not have relying upon documents which were not made available or disclosed to him. He further placed reliance on Shri I.D. Gupta Vs. Delhi Administration through Chief Secretary, Delhi Administration and ors. (1973) 2 SLR 1 wherein it is held that the insistance on the documents was without any relevance. The petitioner never took up the plea in reply to the show cause or in the appeal filed before the responent No.3. The petitioner has not been able to show how and in what manner he has been deprived of the chance of fully explaining his defence as required to the charge-sheet. He further placed reliance on Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and ors. (1991) 2 SCC 716 wherein it is held that strict rules of evidence Act and standard of proof envisaged therein do not apply do departmental proceedings or domestic tribunals. It is open to the authorities to receive and placed on record all the necessary relevant, cogent and acceptable material facts though not proved strictly in confirmity with the evidence act. He further placed reliance on Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution Vs. Educational Appellate Tribunal and anr. (1999) 7 SCC 332 wherein it is held that there was no enquiry in terms of Section 6 of the Act. In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interefere with the termination order. State of Gujarat Vs. Gajanand M. Dalwadi (dead) by LR’s (2008) 1 SCC 716 wherein it is held that in absence of even a bare denial, the charge has rightly been held to be proved by the Disciplinary Authority. The fact that no license was issued in the said numbers at any point of time. Thereafter is of no consequence. Himachal Pradesh Road wherein it is held that employees own admission of misconduct. Enquiry in such an eventuality held not necessary. It is further held that compliance with the principles of natural justice, either by holding an enquiry or by giving the employee an opportunity of hearing or showing cause is necessary where an employee proposes to punish an employee on a charge of misconduct which is denied or any term of condition of employment is proposed to be altered to the employee’s disadvantage without his consent.

Heard both the sides. Perused the record. The petitioner herein was initially appointed as a General Clerk on 15/07/1982 in respondent No.1-Bank. Subsequently, he was promoted to the post of Deputy Manager to the Assistant General Manager. On 31/08/2019 on attaining the age superannuation he retired from the service. Prior to his retirement when he was working as a Chief Manager Loan Tracking Cell, Recovery Department, Head Office, Pune was served him with memorandum of charge-sheet bearing No.AX-1/ST/DM/E-759/ 839/2018-19/853 dated 10/12/2018. As per the allegation he has committed misconduct and thereby under Regulation 8 of Bank of Maharashtra Officer Employees’ (Discipline and Appeal) Regulations, 1976 proceedings was initiated against him. As per the charge-sheet charge was levelled against him as follows :

(i) While sanctioning the Cash Credit facility under LAP he has accepted third party properties of M/s. Seena Sugar Manufacturing Company Ltd. As security for credit facility of M/s. K.J. Engineering Pvt. Ltd. as primary security which is not allowed under LAP scheme.

(ii) While amending the original sanction of Cash Credit facility under LAP to CC General for M/s. K.J. Engineering Pvt. Ltd., Mr. Jain failed to approach ZLCC members and conveyed the amended sanction of credit facility to Nanded Phata branch and Agri High Tech branch vide mail dated 22.02.2013.

(iii) While amending the sanction from LAP to CC General, he failed to assess the CC limit to ascertain the actual requirement of working capital. In terms of bank’s lending policy guidelines the working capital assessment is compulsory while granting working capital limit under CC General.

(iv) Mr. Jain had conveyed the amended sanction of CC General facility to Nanded Phata branch, however again on 22.02.2013 he has given mail to Agri High Tech branch, for executing hypothecation documents for Rs.500.00 lakhs and releasing CC limit of Rs.300.00 lakhs which was unwarranted.

(v) As per the mail from Mr. Jain, Agri High Tech branch had opened the account at their end on 22.02.2013 and released Rs.299.00 lakh on 23.02.2013 through RTGS favouring K.J. Infrastructure Pvt. Ltd. a sister concern with Union Bank of India which resulted in diversion of bank’s funds. The diversion took place mainly because Agri High Tech branch was not aware about the account & they only followed instructions sent by Mr. Jain on mail. Thus he facilitated diversion of bank’s funds.

(vi) He failed to ensure that the mortgage properties in the name of M/s. Seena Sugar Manufacturing Company Ltd. is transferred in the name of director of K.J. Engineering Pvt. Ltd. before sanction of credit facility from LAP to CC Gen, instead he has stipulated the same as condition in sanction which was not complied subsequently.

After receipt of the said charge immediately he wrote to the respondent No.1-Bank vide communication dated 18/12/2018 and asked for the relevant documents as according to him the charge-sheet was issued to him regarding the incident of 2013. He mentioned in the letter that the events mentioned in the memorandum of charge-sheet relates to the year 2013 which renders him unable to stage back his memory and remember as to what transpired at the relevant time. It is submitted on behalf of the petitioner that instead of supplying relevant documents to him punishment order was served upon him. Thus, the reasonable opportunity was not granted to him to defend himself. To support his contention he relied upon the communication dated 18/12/2018 as well as the reply given by the respondent No.1-Bank to his application under the R.T.I. Act. The reply given by the respondent No.1-Bank on the application of the petitioner under the R.T.I. Act shows that the letter dated 02/01/2019 and reminder dated 21/01/2019 no such record is available to show that said letters are delivered to the petitioner. No such record is traceable and no such note prepared for issuance of said communication. He submitted that the reply of respondent No.1-Bank is sufficient to show that no such documents are supplied to the petitioner. He further submitted that though respondent No.1-Bank relied upon the extract of outward register but it only shows that one letter was forwarded, it nowhere shows that said letter and documents are delivered to the petitioner. Thus, it is evident that the sufficient and reasonable opportunity was not granted to the petitioner. Admittedly, the petitioner had preferred an appeal before the Appellate Authority mentioning the ground that without supplying the documents to him Disciplinary Authority passed the punishment order. The Appellate Authority dismissed the appeal by observing that despite providing the documents and sending reminder, the petitioner had not submitted his statement of defence. Accordingly, the note was placed before the Disciplinary Authority and General Manager. They have examined the nature and gravity of the charges levelled against the petitioner and imposed the punishment which was proper and dismissed the appeal. The petitioner had also preferred Review Application before the Reviewing Authority. The Reviewing Authority had observed that the petitioner was given an opportunity to submit his written statement of defence but he failed to submit the same and, therefore, the Disciplinary Authority proceeded and passed the order. It is evident from the order passed by the Reviewing Authority that it has not assigned any reason on the basis of which it came to the conclusion that no new submission was made by the petitioner. No reason is assigned to indicate consideration and rejection of the petitioner’s stand in the review application. The Bank of Maharashtra had approved the Bank of Maharashtra Officer Employees’ (Discipline and Appeal) Regulations, 1976. Regulation 8 describes the procedure for imposing minor penalties which is reproduced hereunder for the reference :

“Regulation 8 :

Procedure for imposing minor penalties.

(1) Where it is proposed to impose any of the minor penalties specified in clauses (a) to (e) of regulation 4, the officer employee concerned shall be informed in writing of the imputations of lapses against him and given an opportunity to submit his written statement of defence within a specified period not exceeding 15 days or such extended period as may be granted by the Disciplinary Authority and the defence statement if any submitted by officer employee shall be taken into consideration by the disciplinary authority before passing orders.

(2) Where, however, the Disciplinary Authority is satisfied that an enquiry is necessary, it shall follow the procedure for imposing a major penalty as laid down in regulation 6.

(3) The record of the proceedings in such cases shall includes -

i) a copy of the statement of imputation of lapses furnished to the officer employee;

ii) the defence statement, if any of the officer employee; and

iii) the orders of the disciplinary authority together with the reasons thereof.”

In view of the said procedure the officer employee concerned shall be informed in writing of the imputations of lapses against him and shall be given an opportunity to submit his written statement of defence. The defence statement, if any, submitted by the officer employee shall be taken into consideration by the disciplinary authority before passing an orders. Here in the present case, it is the case of the petitioner that no opportunity was given to him to submit his statement of defence.

The Reviewing Authority had not considered the said ground and without assigning reason dismissed the Review Petition. The Reviewing Authority ought to have considered the ground of lack of grant of reasonable opportunity to the petitioner.

Shri Sudame, learned Counsel for the petitioner rightly relied upon the judgment of Hon’ble Apex Court in the case Narinder Mohan Arya (supra) wherein it is held that the Appellate Authority while disposing of the appeal was required to apply his mind and an appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law and Divisional Forest Officer Kothagudem and ors. (supra) wherein it is held that the revisional authority being the highest authority is not required to give detailed reasons but in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority.

Here in the present case, consideration of this aspect by the Reviewing Authority appears to be absent. The Reviewing Authority had not assigned any reason while dismissing the review application and has not considered whether the petitioner was deprived of sufficient opportunity or not.

At the same time, learned Senior Counsel for the respondents relied upon I.D.L. Chemicals Ltd. (supra). The facts of the cited case shows that the delinquent was given a charge-sheet and his explanation was called and taken into consideration, therefore, it is held by the Hon’ble Apex Court that no fault can be found with the penalty of stoppage of two increments imposed by the Bank upon the appellant. He further placed his reliance on Syed Rahimuddin (supra) wherein the fact shows that the petitioner had not made any grievance during the enquiry but subsequently made a representation in that regard and, therefore, the Hon’ble Apex Court held that it could not be said that the delinquent had been really prejudiced by non-supply of the documents. Here in the present case, after receipt of the notice immediately the petitioner had made a communication on 18/12/2018 requesting to provide him copies of documents on which the allegations were based, therefore, the facts of the cited case and facts of the present case are not similar. He further relied upon State Bank of India and ors. (supra) wherein it is held that fair procedure does not mean giving of copies of documents or list of witnesses along with charge-sheet though statement of allegations has to accompany charge-sheet. The facts of the cited case shows that the documents were forwarded to the delinquent officer which was not accepted by him nor any list of defence documents was submitted. Here in the present case, though the respondent No.1-Bank of Maharashtra placed reliance on dispatch register to show service of necessary documents but it was only showing that the documents were forwarded. Nothing on record to show that the said documents were actually handed over or received by the petitioner. Thus, the facts of the cited case and the present case in hand, are not identical and not helpful to the petitioner. On the same line, the petitioner relied upon Shri I.D. Gupta (supra). The facts of the cited case and the present case are also not identical. The respondents had also relied upon the Maharashtra State Board of Secondary and Higher Secondary Education (supra) wherein it is held that strict rules of Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. There is no dispute regarding above well settled legal position. We are in respectful agreement with the same. Here in the present case, grievance of the petitioner is that as the relevant documents on which the allegations were based were not given to him to enable him to submit his reply as the allegations levelled against him regarding the past incident of the year 2013. The respondents further relied upon State of Gujarat (supra). The facts of the cited case and the present case are altogether different as the issue involved in the said case was that several misconducts committed by the delinquent officer came to the notice by the authorities upon holding a disciplinary enquiry charges held to be proved. Thereafter he filed an application before the Gujarat Civil Services Tribunal while considering the matter before the Hon’ble Apex Court. The Hon’ble Apex Court held that in absence of even a bare denial, the charge was rightly have been held to be proved by the Disciplinary Authority. Thus, the facts of the cited case are not identical with the present case. The observation in the cited case is after recording the relevant evidence and after giving proper opportunity to the delinquent and, therefore, the Hon’ble Apex Court has not entertained the petition. Lastly, respondents relied upon Himachal Pradesh Road Transport Corporation and anr. (supra) wherein it is held that the employee’s own admission of misconduct and, therefore, the enquiry in the above said circumstances held not necessary. Here in the present case, after service of notice no opportunity was given to the petitioner and said fact is not considered by the Reviewing Authority thus, the cited case law is not helpful to the respondents.

Though Shri M.G. Bhangde, learned Senior Counsel for the respondents relied upon I.D.L. Chemicals Ltd. (supra) wherein the Hon’ble Apex Court held that the penalty of stoppage of two increments simpliciter was imposed upon the appellant. He was given a charge-sheet and his explanation was called for. This observation of the Hon’ble Apex Court after considering the facts of the concerned case in the decision in case which was before the Hon’ble Apex Court the fact shows that after considering the reply the punishment was imposed. Therefore, the cited case law is not helpful to the respondents.

In the above facts and circumstances, the petitioner has made out a case that no reasonable opportunity was granted to him and the principles of natural justice was not complied. In view of that matter, the grievance of the petitioner requires reconsideration by the Reviewing Committee by considering it on the basis of grounds mentioned in the Review Application. Therefore, we are of the opinion that the directions to the Review Committee are required to consider the Review Application of the petitioner afresh by giving him sufficient opportunity. In the result, the writ petition deserves to be allowed.

ORDER

(i) The writ petition is allowed. The order passed by the Reviewing Authority on 27/09/2019 is set aside.

(ii) The Reviewing Authority i.e. the Managing Director and Chief Executive Officer of respondent No.1-Bank are directed to consider the Review Application of the petitioner afresh by giving him reasonable opportunity. The review application shall be considered on its own merits without being influenced by any observation in this judgment.

Rule is made absolute in the aforesaid terms. There will be no order as to costs.