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2001 DIGILAW 208 (GAU)

Nibedita Kalita v. State Bank of India and Ors.

2001-08-01

A.K.PATNAIK, R.S.MONGIA

body2001
R. S. Mongia, C. J. (Acting). — An order dated 8.9.1999 (Annexure 1) to the writ petition was passed by the respondents ordering drawn by the writ petitioner towards reimbursement of medical expenses and Leave Fare Concession (LFC, for short) on account of her parents. 2. The aforesaid order was followed by similar orders to which reference would be made herein after. The orders of refund are made the subject matter of challenge in this writ petition. It may be observed here that along with the orders of refund there was an order of 'censure' passed against the writ petitioner and that is also made the subject matter of challenge in the writ petition. Initially, the learned Single Judge granted stay of recovery from the petitioner's pay. However, on an application having been made by the respondent-Bank, the stay order was vacated vide order dated 13.6.2001 in Misc Case No. 670 of 2001. Writ Appeal No. 235 of 2001 was filed against the said order, and when the said writ appeal had come up before us on 29.6.2001, we were of the view that instead of deciding the writ appeal if would be apposite to dispose of the writ petition itself and, therefore, had sent for the writ petition. That is how, we are disposing of the writ petition as well as the writ appeal. 3. Vide Memorandum dated 5.5.1998 (Annexure 1) to the writ petition, the Chief Manager of the respondent Bank asked for explanation of the petitioner in the following terms: "Staff: Award: Complaint We have been advised by the appropriate authority to seek your explanation on the following points : (i) That, you have during 1996, obtained reimbursement of medical bills pertaining to your father while monthly income of your mother, during the relevant period was more than Rs. 500. (ii) That, you have obtained leave fare concession in 1996 for your parents while monthly income of your mother was more man Rs. 500. As per your service rules, you are not eligible to claim either reimbursement of medical expenses or leave fare concession on account of your parents of either of the parents monthly income exceed Rs. 500/-. 2. Your explanations, as to why you have obtained reimbursement of medical bills and leave fare concession for your parents even though your mother's income was more than Rs. 500/-. 2. Your explanations, as to why you have obtained reimbursement of medical bills and leave fare concession for your parents even though your mother's income was more than Rs. 500 per month, to be submitted to the undersigned on or before 12.5.98." 4. The petitioner replied on 12th May, 1998 as follows: "With reference to your Memo No. CM/28/145, dated the 5th May, 1998,1 have to submit that, to the best of my knowledge and belief, I claimed reimbursement of the medical bill/leave fare concession bill as per my eligibility in terms of Bank's instruction." 5. Then come the impugned order dated 8.9.1999. It will be apposite to reproduce the entire order: "Staff: Miscellaneous: Medical/Bill With reference to the above, it has been observed that you availed yourself of the facility of reimbursement of medical expenses and LFC charges on account of your parents after furnishing a declaration only of your father's income and without disclosing the income of your mother, where on the other hand, your mother's income alone from all sources was found to be far exceeding the permissible limit. Please, therefore, refund the entire amount of Rs. 60,901 that has been drawn by you towards reimbursement of medical expenses and LFC charges on account of your parents at an early date. 2. Further, you are cautioned not to commit such irregularity in future. Yours faithfully, Sd/- Branch Manager." 6. The writ petitioner persisted that the income of her mother was within the permissible limits and asked the respondent Bank to supply her with the materials on the basis of which it had concluded that the petitioner's mother's income was more than the permissible limit. The letter to that effect dated 22.9.1999 from the petitioner is in the following terms: "Dear Sir Staff : Miscellaneous: Medical/Bill I acknowledge receipt of your letter No. BM/29/89 dated the 8th September, 1999. In this, connection, I would like to state that, if I did not disclose my mother's income, it might have inadvertently been omitted at that time. 02. Further, I reiterate that my mother's income was within the permissible limit at the time of reimbursement of medical/LFC bills. As such, I am not liable to refund the amount as stated in your letter. 02. Further, I reiterate that my mother's income was within the permissible limit at the time of reimbursement of medical/LFC bills. As such, I am not liable to refund the amount as stated in your letter. However, I may kindly be supplied with the materials on which basis you have arrived at my mother's income, which was found b to be far exceeding the permissible limit from all sources in order to enable me to submit my reply to your satisfaction. Yours faithfully Sd/-(Nibedita Kalita)" 7. The aforesaid letter did not bear any frit and the Bank informed the peti vide communication dated 19.11.1999 (Annexure 2) that as per the investigation conducted by the Bank it had been found that the income of the petitioner's mother was exceeding me permissible limit. The communication reads as under: "Madam, Staff: Miscellaneous: Medical/Bill With reference to your letter dated 22nd September, 1999, we have to advise that the income of your parents is more man the permissible limit for rnedical/LFC reimbursement as per the investigation conducted. Please, therefore, arrange to deposit the amount of Rs. 60,901 within 10.12.1999 without fail. Yours faithfully Sd/-Branch Manager." Again, vide communication dated 9.12.1999, the petitioner insisted that she should be supplied with the copy of the investigation report by which the Bank had come to the conclusion that the petitioner's mother's income was exceeding the permissible limit. Only reply that was given to the aforesaid request was in the following terms vide communication dated 18.4.2000 (Annexure 7): "Madam, Staff: Miscellaneous: Medical/Bill With reference to your representation dated the 9th December, 1999, we have to advise that your contention is not acceptable to the Bank. Please, therefore, arrange to refund the entire amount of Rs. 60,901 (Rupees sixty thousand nine hundred one only) without farther delay failing which an amount of Rs.2,000 (Rupees two thousand only) will be deducted from your salary every month till recovery of the amount." 8. The petitioner is stated to have filed an appeal under sub-paragraph 521 % (12) of the Sastry Award against the final order of punishment, but the said appeal has not so far been decided. 9. We have heard learned counsel for the parties. The petitioner is stated to have filed an appeal under sub-paragraph 521 % (12) of the Sastry Award against the final order of punishment, but the said appeal has not so far been decided. 9. We have heard learned counsel for the parties. The primary argument of the learned counsel for the writ petitioner is that the materials on the basis of which the Bank might have come to the conclusion that the income of the mother of the petitioner was exceeding the permissible limits to claim reimbursement of medical bills and LFC had never been supplied to the petitioner and she had no chance to rebut any such material and produce her own defence in rebuttal. According to the petitioner, this was complete negation of the principles of natural justice as also the Rules, i.e. Award of All India Industrial Tribunal (Bank Disputes) Bombay, pertaining to holding of disciplinary proceedings as applicable to the petitioner. 10. It is not being disputed before us that the material on the basis of which the Bank had concluded that the income of the mother of the petitioner was more than the permissible limit had not been supplied to the petitioner. 11. It is now well settled that no adverse order can be passed against any employee unless he or she is confronted with the materials on the basis of which charges are sought to-be., proved-. This is really what is contained in the Rules concerning holding of enquiry which are applicable to the parties in the present case. We are of the view that the impugned orders asking refund from the petitioner of the medical reimbursement as well as LFC drawn by the petitioner qua her parents are against the principles of natural justice and liable to be quashed. Consequently, we allow this writ petition and quash the impugned orders in Annexure 3,5 and 7 to the writ petition. However, the Bank may now supply all the materials in its possession to the writ petitioner on the basis of which it had concluded that the petitioner's mother's income was more than permissible limit at the relevant time for reimbursement of medical bills/LFC. On such materials having been provided to the petitioner, she would be at liberty to rebut the same in writing along with any evidence in her possession, and thereafter the Bank shall pass a speaking order. On such materials having been provided to the petitioner, she would be at liberty to rebut the same in writing along with any evidence in her possession, and thereafter the Bank shall pass a speaking order. Needless to mention here that if the petitioner is aggrieved by any such order that may be passed by the Bank, she would be at liberty to challenge the same before an appropriate forum. The Bank will not make any further recovery from the petitioner. However, whatever recovery that may have already been made may not be refunded till the orders as envisaged by this judgment are passed by the Bank. We make no order as to costs.