IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1502 of 1991 For Approval and Signature: HON'BLE MR.JUSTICE B.J.SHETHNA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- S V S SASTRY Versus BANK OF INDIA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1502 of 1991 MR BP TANNA for Petitioner No. 1 MR KS NANAVATI for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA Date of decision: 26/09/2003 ORAL JUDGEMENT 1. The petitioner joined the service of respondent Bank of India as Clerk/typist in the Zonal office at Andhra on 25.11.1971. Thereafter, he was promoted as Officer on 15.10.1986 and transferred to Gujarat Zone. Between October 1986 to July 1989 he was posted as an Officer in Delhi Chakla branch of the respondent Bank. Thereafter he was transferred to Pisawada Branch as Branch Manager (Rural posting) where he took over charge as Branch Manager on 10.7.1989. He was served with the charge sheet for various misconduct shown in Annexure : B collectively, which are as under : (i) Fraudulent misappropriation of banks funds on various occasions to the tune of Rs.16,200/- for personal pecuniary benefit and thereby had utilized Bank's funds to the detriment of the interest of the Respondent Bank and to cover up the acts and omissions of the petitioner for the misconduct and dereliction of duties, the petitioner had tampered with the Respondent bank's documents and had also managed to destroy and/or misplace the relevant negotiable instrument and documents so as not to effect the relevant debits and/or entries thereof on the debits of accounts of the petitioner. (ii) Flouting the bank's norms and adopting illegal process of the procedure in sending cheque dated 28.4.90 for Rs.10,000/- drawn by one Shri Madanlal Saluja on the respondent Bank, New Cloth market Branch in favour of the petitioner under Debit Note No.13179 and thereafter withdrawing the said funds on 28.4.90 which has resulted into unlawful pecuniary gain to the petitioner and causing unlawful loss to the Respondent Bank in terms of cost and which was otherwise not permitted in banking practice; (iii) The petitioner has acted in unlawful manner and has abused his official position as the Branch Manager of Pisawada Branch for his own pecuniary gain by drawing on unauthorized advance of Rs.1000/- on 6.4.90 from the Pisawada Branch Suspense Account. The unauthorized advance was detailed to have been for the purpose of purchase of certain items from the market. However, the items valued at Rs.290 on 28.4.90 has been purchased by the petitioner and thus the petitioner had unlawfully without any authority has retained the amount for about 21 days before any actual purchase has been effected out of the withdrawal of amount under the Suspense Account. The petitioner even then after retained the balance amount without accounting in the Suspense Account upto 20.6.91. The practice of this kind of transaction is not permitted in banking system even by their employees. The petitioner had caused irreparable loss and the loss of confidence of the superiors by misappropriation of Bank's fund in this manner. (iv) Drawing advance amount of Rs.800/- from Pisawada branch profit and Loss Account for the purpose of travelling expenses for inspections of advance accounts, the petitioner not carried out any such inspections and instead of that without any authority with a view to abuse his official position causing irreparable loss to the reputation of the bank had retained the amount of Rs.800/- for the period from 20.4.90 to 20.6.90. The petitioner was called upon to give his explanation within 15 days. He filed reply dated 4.10.1990 (Annexure : C) admitting the charges, including the charge of temporary mis-appropriation of Rs.16,200/-. 2. In view of the admission made by the petitioner in his Reply, the respondent Bank by order at Annexure :D removed him from service in view of gravity of the charges which were admitted by the petitioner in his reply at Annexure : C. This impugned order of removal has been challenged by the petitioner in this petition in 1990. 3. Initially, Notice was ordered to be issued on 12.3.1991 to the respondent Bank. It was made returnable on 27.3.1991. Thereafter, from time to time the matter was adjourned before different Hon'ble Judges of this Court and ultimately on 24.7.1992 N.J.Pandya, J. (as he then was) issued Rule on this petition and made it returnable on 14.10.1992. However, for some or the other reasons the matter could not be heard and finally disposed of till today. Be that as it may. 4. In response to the Notice issued by this Court, Reply Affidavit is filed by the respondent Bank. 5. Learned Counsel for the petitioner challenged the impugned order of removal at Annexure : D dated 5.1.1991 passed by the respondent Bank firstly on the ground that the petitioner had already explained in his statement to the Investigating Officer of the Bank that under what circumstances such irregularities were committed by him. Instead of that, charge-sheet was issued by the respondent Bank in respect of the same irregularities, the petitioner, therefore, submitted his reply to the said charges and explained the irregularities and also requested the Bank to consider his case leniently and he may be continued in service, but the respondent Bank had not considered his reply to the charge-sheet in its proper perspective and without conducting regular departmental inquiry against the petitioner straightway passed the impugned order of removal at Annexure : D. Thus, without following the principle of natural justice his services were terminated by the impugned order. Therefore, impugned order of removal is required to be quashed and set aside. Alternatively, it was submitted that if the Departmental Authority was not satisfied with the reply to the charge-sheet submitted by the petitioner then it ought to have held the regular departmental enquiry and after giving full opportunity to the petitioner if the charges were proved in the departmental enquiry then only they could have passed the order of removal. Thus, regular departmental enquiry against the petitioner was dispensed with. On this ground also the impugned order of removal is required to be quashed and set aside. It was further contended by the learned Counsel for the petitioner that in this case no second show cause notice was issued to the petitioner by the respondent Bank calling upon him to show cause as to why the maximum penalty of removal from service should not be passed against him after receipt of the reply to the charge-sheet. He submitted that if the second show cause notice for punishment was issued then the petitioner could have pointed out that maximum penalty of removal cannot be passed in this matter. Lastly, it was submitted that in any case maximum penalty of removal was highly disproportionate to the misconduct which is alleged to have been proved by the respondent bank. 6. As against that learned Counsel Shri Pravin Mehta for the respondent Bank submitted that the charge-sheet issued against the petitioner was more than clear. He was called upon to file reply to the charges levelled against him. The charges were of a serious nature. He filed reply and admitted all the charges levelled against him then there was no need for the respondent Bank to hold further regular inquiry as his admission or confession of guilt was voluntary. In such type of cases there was no need to issue second show cause notice calling upon him to show cause as to why maximum penalty of removal should not be imposed against him. Shri Mehta further submitted that in such type of serious case of temporary misappropriation the person cannot be retained in public service of Bank and in this case on the admission of the petitioner no penalty other than the penalty of removal was called for. Therefore, the removal order was passed. He submitted that on the fact of the case the punishment of removal from service cannot be said to be highly disproportionate. Shri Mehta further submitted that as held by the Hon'ble Supreme Court and this Court in catena of decision that this Court in its writ jurisdiction can not sit in Appeal over the decision of the Authority while imposing the penalty. He, therefore, submitted that on the facts of the case this Court should not exercise its extraordinary jurisdiction in favour of the petitioner as the penalty of removal of service, on the facts of this case, cannot be said to be grossly disproportionate. 7. Having heard the learned Counsel for the parties and having perused the averments made in the petition as well as reply Affidavit and the Reply dated 4.10.1990 filed by the petitioner to the charge-sheet (Annexure:C) it is more than clear that the petitioner voluntarily made admission in his reply about his guilt and the serious misconduct of misappropriation/temporary misappropriation committed by him. 8. In view of this, I do not find any substance or merit in the submission made by learned Counsel for the petitioner that the impugned order was passed by the respondent Bank in clear violation of principle of natural justice. Once there is clear cut admission/ confession made by the petitioner to the serious charges of misappropriation, etc. levelled against him in the charge-sheet then I am of the considered opinion that no further regular departmental enquiry is necessary. 9. This brings me to the question regarding penalty of removal from service awarded to the petitioner. From the cahrge-sheet and the Reply of the petitioner it is clear that the petitioner had committed serious misconduct of misappropriating public money. It is a different matter that subsequently he has repaid the amount to the bank, but still it is a criminal offence of temporary misappropriation for which the Bank could have even prosecuted the petitioner by way of filing criminal complaint and if the charges were proved before the competent Court then he would have been given sentenced for temporary misappropriation. Instead of that the Bank was satisfied with passing of the order of removal against the petitioner and did not take any further action perhaps because of his long service of 20 years with the Bank. It is true that the past record of the petitioner was good, but misconduct committed by him after 20 years of service called for only penalty of remvoal or dismissal of service and, therefore, I am of the considered opinion that the Bank has rightly passed an order of removal from service. 10. Before parting, I must say that there was also challenge to Regulation : 6(4) of Bank of India Officers, Employee (Discipline & Appeal) Regulation, 1976, but this was a halfhearted challenge. When the petition was filed there was no such challenge, but it was introduced by way of amendment in the main petition. Learned Counsel for the petitioner miserably failed to satisfy this Court that Regulation 6(4) of the Regulation is ultravires to Articles 14 & 16 of the Constitution. 11. Except the aforesaid contentions, no other contention was pressed into service. 12. In view of the above discussion, I do not find any substance or merit in this petition. Accordingly, this petition fail and is hereby dismissed. Rule is discharged. However, there shall be no order as to costs. Date : September 26, 2003 (B.J.Shethna, J.) *sas*