JUDGMENT B.K. Sharma, J. 1. Heard Mr. S.N. Sarma, learned Sr. Counsel, assisted by Mr. A. Zahid, learned counsel for the petitioner. I have also heard Mr. P.N. Goswami, learned Standing Counsel, Apex Bank. The petitioner is aggrieved by Annexure-P order dated 27.6.2003, by which, he was imposed with the penalty of dismissal from service with effect from 27.6.2003. Be it stated here that in the normal circumstances, the petitioner was to retire from service on attaining the age of superannuation with effect from 28.6.2003. 2. The petitioner while in service as General Manager, Planning and Development Department of the respondent Bank was served with the show cause notice dated 14.2.2002 (Annexure-A) leveling as many as 16 charges. Along with the show cause notice, statement of allegation in respect of each one of the charges had also been annexed. The charges related to allowing number of drawl exceeding the cash credit limit; irregular recommendation to the sanctioning authority for sanction of additional limits; misleading the sanctioning authority about the actual status regarding the ownership of the particular Tea Estate; connivance with the particular lessee of the particular Tea Estate in getting MT Loan; gross irregularities involving the status of the cash credit account; willful concealment of vital information from the sanctioning authority about the liabilities of the parties to the Bank; allowing a number of drawls in the C.C. account of a particular party exceeding the sanctioned limit; gross violation of all banking norms etc. Details of the charges had been furnished to the petitioner by way of a statement of allegation against each one of the charges. 3. On receipt of the chargesheet, the petitioner made certain correspondences for providing documents to him. While according to the petitioner, some of the documents sought for by him, had not been provided, according to the respondent Bank all the documents had been provided to the petitioner. It is the further stand of the respondents that some of the documents were not necessary to be provided to the petitioner, as the same did not have anything to do with the charges leveled against the petitioner. 4. When the matter rested thus, the petitioner was furnished with another show cause notice dated 2.9.2002 leveling some additional charges numbering 6. The said charges also related to concealment of vital information from the Managing Director in respect of bank guarantee etc.. 4. When the matter rested thus, the petitioner was furnished with another show cause notice dated 2.9.2002 leveling some additional charges numbering 6. The said charges also related to concealment of vital information from the Managing Director in respect of bank guarantee etc.. Over all charges against the petitioner was gross financial irregularity resulting in huge financial loss to the respondent Bank. 5. In due course, a domestic enquiry was conducted, in which, the charges leveled against the petitioner were held established. Thereafter, upon furnishing of the copy of the enquiry report and getting reply of the petitioner, the penalty of dismissal from service was imposed by the impugned order dated 27.6.2003. Hence, this writ petition. 6. While Mr. Sarma, learned Sr. Counsel for the petitioner has submitted that the respondent Bank acted malafide in imposing the penalty of dismissal from service just at the eve of normal retirement of the petitioner from service, Mr. Goswami, learned Standing Counsel, Apex Bank has submitted that merely because the timing of the order of dismissal co-incided with the date of retirement of the petitioner from service on attaining the age of superannuation, the same by itself cannot lead to the inference that the same is founded on malafide exercise of power, more particularly, when there is no allegation of any malafide exercise of power on the part of any particular officer of the respondent Bank. 7. Mr. Sarma, learned Sr. Counsel for the petitioner submits that the defence of the petitioner was prejudiced inasmuch as the required documents were not furnished. He further submits that in absence of any proof of misconduct committed by the petitioner in respect of the charges leveled against him, the respondent Bank ought not to have held the petitioner guilty of the charges towards imposing of extreme penalty of dismissal from service. He also submits that even if the charges leveled against the petitioner are held established, then also considering the fact that the petitioner was to retire from service on the next day of the impugned order dated 27.6.2003, the disciplinary authority ought to have considered that aspect of the matter towards imposing a lesser penalty to the petitioner. 8. Mr. He also submits that even if the charges leveled against the petitioner are held established, then also considering the fact that the petitioner was to retire from service on the next day of the impugned order dated 27.6.2003, the disciplinary authority ought to have considered that aspect of the matter towards imposing a lesser penalty to the petitioner. 8. Mr. Goswami, learned Standing Counsel, Apex Bank referring to the written argument submitted on 20.10.2011 submits that the enquiry having been conducted following the due procedure and the petitioner virtually having admitted the charges leveled against him, it is immaterial that the order of penalty was passed just one day ahead of the date of retirement of the petitioner from service. As regards the submission made by the learned counsel for the petitioner that a lesser penalty ought to have been imposed, he submits that it is for the disciplinary authority to decide as to what penalty should be imposed. According to him, considering the gravity of the charges, dismissal from service was the proper penalty. 9. Mr. Goswami, learned Standing Counsel, Apex Bank further submits that as per his telephonic instruction, irrespective of the order of dismissal from service, the petitioner had been provided with the amounts pertaining to CPF and leave encashment. However, he submits that in view of the order of dismissal, the petitioner is not entitled to any other benefits including the gratuity. On this, Mr. Sarma, learned Sr. Counsel for the petitioner submits that the respondent Bank is not the authority to withhold the gratuity amount without following the procedure laid down in Payment of Gratuity Act, 1972. 10. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. As to what were the charges leveled against the petitioner has been noted above. The petitioner in his reply to the charges, interalia took the plea that there was instances in the past in the Bank in allowing withdrawal of amounts in respect of cash credit limit exceeding the limit fixed. He also tried to justify his action in respect of the charge No. 3, which was purportedly misleading the sanctioning authority about actual status of ownership of the particular Tea Estate in reference to the agreement/lease. He also tried to justify his action in respect of the charge No. 3, which was purportedly misleading the sanctioning authority about actual status of ownership of the particular Tea Estate in reference to the agreement/lease. Answering to the charge No. 6, the petitioner stated in his written statement that the recommendation was made on the basis of the statement prepared by the Assistant Manager and that as per the prevalent practice, it was not necessary to check each and every position placed by junior officer. In respect of some other charges, the petitioner took the plea that since there was instances in the past that the allotment of different items had been transferred as per choice of the parties, there was nothing wrong in repeating the same by the petitioner. According to him, the distribution of the amount of drawing schedule was not rigid one and the party could change their allotment. 11. In respect of the charge No. 10, it was the plea of the petitioner that allowing excess drawl was a regular practice of the Tea Advance Department of the Bank. It was submitted that almost in every season accounts had exceeded drawals. Surprisingly, responding to the charge No. 14, the petitioner in his written statement had stated that change of Management (borrowers) without prior approval of the Bank was not a new thing to the Bank. 12. Dealing with the additional charges, the petitioner in his written statement stated that the particular Tea Estate on many occasions had availed the bank guarantee and thus there was nothing wrong on the part of the petitioner in providing such bank guarantee. 13. On a total reading of the written statement that was submitted by the petitioner, what is seen is that the basic defence of the petitioner was that he had followed the past practice of the Bank. Another defence that was taken by the petitioner was that since such irregularity/illegalities in Bank transaction were prevalent, there was nothing wrong in following the same by the petitioner. In other words, it was the plea of the petitioner that if the Bank had allowed the irregularities/illegalities in the past, the petitioner could not have been picked up for a differential treatment in following the same procedure that was followed in the Bank on earlier occasions. 14. In other words, it was the plea of the petitioner that if the Bank had allowed the irregularities/illegalities in the past, the petitioner could not have been picked up for a differential treatment in following the same procedure that was followed in the Bank on earlier occasions. 14. It is in the above context, the Enquiry Officer in his report while upholding the charge No. 1 has recorded the following finding: The allegation regarding overdrawal in the C/C.A/C. for the season 1996 was examined. Sri Paul, in his defence, contents that overdrawal was a practice followed since inception and also provided a few instances in exhibits marked A.O.D.-6 containing 12 sheets. The enquiry feels that a Cash Credit limit fixed as a term of sanctioning letter is for the purpose of control over the Account which is to be adhered to. Violation of a term of sanction cannot be justified with instances of violation, however prevalent the violations may be. The allegation under charge No. 1, therefore stands proved. 15. Similar findings have been recorded in respect of some other charges. In this connection, the findings recorded in respect of Charge No. 3, 5, 7, 9 and 10 are as follows: Charge No. 3. - ......... ....... The contention of Sri Paul that the Bank has accepted the status of Sri Barua as lessee of Timon Tea Estate in the Tripartite Agreement dated 13.8.97 does nto appear to have any ground as mere mention in an agreement as lessee does not bestow the status without a legally valid document. The enquiry further finds that the Tripartite Agreement was executed and registered subsequently on 31.8.97, probably on the basis of the Note dated 4.2.97 (exhibit No. M.D.-11) put up by Sri Paul wherein he mentioned that a Tripartite Agreement was necessary with Bank. The agreement showing the status of Sri B.R. Baruva as lessee Timon Tea Estate appears to be the consequence of the Notes of Sri Paul maintaining that the Tea Estate was leased out to Sri B.R. Baruva, on the basis of the registered agreement mentioned earlier. The documentary evidence under A.O.D.-9 furnished by Sri Paul is found to be not relevant to the charge under Charge No. 4. The enquiry finds that an agreement is an agreement which does not automatically bestow the lessor lessee relationship, without a legally valid Lease Deed. The documentary evidence under A.O.D.-9 furnished by Sri Paul is found to be not relevant to the charge under Charge No. 4. The enquiry finds that an agreement is an agreement which does not automatically bestow the lessor lessee relationship, without a legally valid Lease Deed. Since no lease deed was executed, and loads were recommended to Sri B.R. Baruva against the Tea Estate on the status of a lessee, the allegation under Charge No. 3 is amply established. Charge No. 5. - Regarding allowing over drawal in excess of Cash Credit limit, Sri Paul has not denied the allegation, Sri Paul has ought to justify such excess drawals on the plea of regular practice with examples. The enquiry is of the view that a limit fixed as a terms of sanction is for the purpose of adhering to it. Violation of a term of sanction on the plea of regular practice cannot be considered as a ground for justifying an irregularity. On the basis of the above findings, the allegation under Charge No. 5 is found to be established. Charge No. 7. - The submissions of the Presenting Officer with exhibits under M.D. 26 to M.D. 29 along with the replies thereto of the Accused Officer were examined. Sri Paul has not denied the excess drawals exceeding the C/C limit but sought to justify his actions on the ground of regular practice followed on several occasions citing examples thereof. Except for contentions denying the allegations on the above ground, Sri Paul was unable to justify his actions with any other specific reasons during the course of enquiry. Allegations on allowing over drawals exceeding the Cash Credit limit has been already established in the foregoing charges under Charge No. 1 and Charge No. 5. The allegation under Charge No. 7 is therefore accordingly established. Charge No. 9. - ............... Reference to instances for similar action in other garden cannot justify an irregular action. As a consequence of not providing for green leaf in the drawing schedule, drawals against green leaf could not be checked at Branch level against corresponding bills/invoices etc. thereby allowing M/s. M.R.B. & Associates to misutilise the fund. The allegation under Charge No. 9 is therefore fully established. Charge No. 10. As a consequence of not providing for green leaf in the drawing schedule, drawals against green leaf could not be checked at Branch level against corresponding bills/invoices etc. thereby allowing M/s. M.R.B. & Associates to misutilise the fund. The allegation under Charge No. 9 is therefore fully established. Charge No. 10. - The allegation with submissions of Presenting Officer and the replies thereto of the Accused Officer are same as has been dealt with in the enquiry in foregoing charges with regard to allowing excess drawal exceeding the Cash Credit Limit. Since there is a limit fixed as per terms of sanction, quarry should have been made with justification for seeking the excess drawal by the party. Sri Paul could not furnish any such reasons to the enquiry. The allegation therefore stands to be justified. 16. The above observations of the Enquiry Officer in the Enquiry Report are only illustrative and not exhaustive. It is in this context Mr. Goswami, learned Standing Counsel, Apex Bank submits that in view of clear admission on the part of the petitioner about the allegations made in the charges, the charges against him stood proved and the petitioner cannot harp upon the alleged irregularity in conducting the enquiry. 17. As has been held by the Apex Court in Channabasappa Basappa Happali Vs. State of Mysore reported in AIR 1972 SC 32 admission of particular fact in the charges amounts to admission of guilt. In that particular case a police officer after remaining absent from duty unauthorisedly, raised the technical pleas of conducting the enquiry in an improper manner. Answering the said plea, the Apex Court held that when the facts stated in the charge had been admitted by the petitioner, the technical plea of holding enquiry in an improper manner was not available. It was held that admission of fact amounts to admission of guilt. 18. Mr. Sarma, learned Sr. Counsel for the petitioner submits that in view of the irregularity in conducting the enquiry which includes non-furnishing of documents and non-examination of witnesses, the entire proceeding was vitiated and consequently the disciplinary authority of the Bank could not have passed the impugned order. The admitted facts staring on the face of it cannot be ignored. In the first chargesheet as many as 16 charges were leveled against the petitioner. In the second one, 6 more additional charges were leveled. The admitted facts staring on the face of it cannot be ignored. In the first chargesheet as many as 16 charges were leveled against the petitioner. In the second one, 6 more additional charges were leveled. All the charges involved gross financial irregularity in the matter of Bank transaction with which the petitioner was entrusted. As to what was the plea of the petitioner in defending the charges has been noted above. On a bare perusal of the written statement submitted by him would go to show that in almost all the charges, he tried to justify his action on the analogy that in the past similar practice had been followed. Needless to say that a wrong committed on earlier occasion cannot be the shield towards commission and/or repeating such wrong action again and again. Needless also to say that two wrong cannot make an action right. 19. In is in the above context Mr. Goswami, learned Standing Counsel, Apex Bank in reference to the written argument submitted by him has submitted that the petitioner himself having admitted most of the charges, the alleged irregularity in conducting the departmental enquiry will automatically fall through. He however, submits that there is no procedural irregularity in conducting the enquiry and that the enquiry was conducted providing due opportunity to the petitioner. He also submits that mere projection of a case of irregularity in the proceeding is not enough but the requirement of law is to establish prejudice caused to the delinquent pertaining to the alleged irregularity in conducting the enquiry. 20. The disciplinary authority in consideration of the enquiry report and the representation submitted by the petitioner passed the impugned order dated 27.6.2003 (Annexure-E) dealing with each and every aspects of the matter. The disciplinary authority in consideration of the entire materials on record came to the finding that the charges established against the petitioner must entail the penalty of dismissal from service. Such finding arrived at by the disciplinary authority cannot be interfered with on the basis of the pleas raised by the petitioner. 21. In view of the above, I am not inclined to interfere with the order dated 27.6.2003. At this stage, Mr. Sarma, learned Sr. Such finding arrived at by the disciplinary authority cannot be interfered with on the basis of the pleas raised by the petitioner. 21. In view of the above, I am not inclined to interfere with the order dated 27.6.2003. At this stage, Mr. Sarma, learned Sr. Counsel for the petitioner submits that considering the fact that the petitioner was imposed with the penalty of dismissal from service just one day ahead of his date of retirement on attaining the age of superannuation, coupled with the fact that he has been suffering from various ailments, the Board of Directors of the Bank is required to have a fresh look in the matter so far as the extreme penalty of dismissal from service is concerned. He submits that the alternative penalty of compulsory retirement would entail certain benefits to the petitioner including the benefit of gratuity. He further submits that since the gratuity cannot be withheld as per the provisions of Payment of Gratuity Act, 1972, the Bank is obliged to re-consider the matter. 22. Mr. Goswami, learned Standing Counsel, Apex Bank submits that the Managing Director of the Bank is not empowered to review the order of penalty in absence of any statutory power. However, he fairly submits that it is for the Board of Directors of the Bank is to decide as to whether a review is called for to the impugned decision. It is on record that the Managing Director of the Bank has passed the impugned order on the basis of the decision of the Board of Directors of the Bank. 23. In view of the above, while not interfering with the impugned order of penalty, it is however provided that the Board of Directors of the Bank shall re-examine the matter so far as the same relates to the penalty of dismissal from service. Re-examination of the matter shall confine only to the extent as to whether the penalty of dismissal from service can be converted to compulsory retirement or not, which may entail some more retiremental benefits to the petitioner apart from what the petitioner has already received, which according to the respondent Bank are the amounts pertaining to CPF and leave encashment dues. With the above observation, the writ petition is disposed of. There shall be no order as to costs.