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2014 DIGILAW 1032 (GAU)

Maya Bordoloi v. Assam Co-operative Apex Bank

2014-12-02

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. The petitioner is aggrieved by Annexure-7 order dated 2.2.2010, by which, the petitioner has been imposed with the penalty of recovery from retirement benefit (gratuity amount) and cash equivalent to leave pay, both of which are admissible under Rule 65(a) and Rule 76(1) of the Assam Cooperative Bank Ltd. (Staff) Rules, 1980. The order was passed after retirement of the petitioner from service on attaining the age of superannuation in 2008 (31.3.2008). While according to the petitioner, the departmental proceeding that was initiated when the petitioner was in service could not have been continued after he had retired from service, according to the respondents, the same is permissible as per the provisions of Rule 46(c) of the aforesaid Rules. As per the provisions of the said Rules, a departmental proceeding initiated against an employee of the Bank when he was in service can be continued even after superannuation/retirement and for the purpose of such continuation, he/she shall be deemed to be in service of the respondent Bank. The writ petition was filed on 17.6.2009 with the prayer for release of all retirement benefit including gratuity and leave encashment amount. Prayer was also made to set aside and quash the Annexure-1, 3 and 4 orders, by which, while informing about his retirement from service on attaining the age of superannuation, it was also conveyed that for the purpose of the departmental proceeding, the petitioner would be deemed to be continuing in service. The said orders are dated 1.1.2008, 18.3.2008 and 28.3.2008. During the pendency of the writ petition, the petitioner died on 5.5.2010, just before three months of the impugned order that was passed on 2.2.2010 imposing the aforesaid penalties. His legal heirs namely his wife and two sons have entered into his shoes by necessary substitution. 2. I have heard Mr. G.P. Bhowmik, learned Sr. Counsel assisted by Ms. A. Thakuria, learned counsel for the petitioner as well as Mr. P.N. Goswami, learned Standing Counsel, Apex Bank. I have also considered the entire materials on record. 3. The facts necessary for adjudication of the issue raised are that the husband of the petitioner while was in service of the respondent Bank was issued with the charge sheet dated 18.6.1998 leveling thee charges. P.N. Goswami, learned Standing Counsel, Apex Bank. I have also considered the entire materials on record. 3. The facts necessary for adjudication of the issue raised are that the husband of the petitioner while was in service of the respondent Bank was issued with the charge sheet dated 18.6.1998 leveling thee charges. The allegation levelled against the husband of the petitioner was that he had submitted false spot verification report against collateral security offered by numbers of beneficiaries; also prepared false verification with highly inflated valuation rates and also provided spot verification report of a numbers of beneficiaries without actual verification. 4. Responding to the charges, the husband of the petitioner submitted his written statement of defence on 3.8.1998. However, Mr. Bhowmik, learned Sr. Counsel for the petitioners submits that the said written statement was preceded by earlier written statement dated 22.7.1998. 5. After such issuance of the charge sheet and submission of reply thereto, the disciplinary authority did not take any action in the matter and the matter was kept in the cold storage for long 5 years, when it issued the letter dated 5.5.2003 to the husband of the petitioner informing him about the enquiry proceeding to be conducted. By the said communication, the husband of the petitioner was informed that the enquiry would be conducted on 10.5.2003 and he was advised to attend the enquiry. Even thereafter nothing followed and the enquiry did not proceeded long about 7 years thereafter, the disciplinary authority i.e. the Managing Director of the respondent Bank passed the impugned order imposing the aforesaid penalty on the husband of the petitioner. 6. From the above narration of fact, what has emerged is that after issuance of charge sheet and receipt of written statement of defence submitted by the husband of the petitioner, the disciplinary authority was of the opinion that the enquiry proceeding was required to be conducted against the husband of the petitioner. However, as noted above, such decision was taken long 5 years of issuance of the charge sheet and submission of reply thereto. Even thereafter, the enquiry proceeding did not start and the husband of the petitioner did not get any opportunity to participate and defend his case in the enquiry proceeding. However, as noted above, such decision was taken long 5 years of issuance of the charge sheet and submission of reply thereto. Even thereafter, the enquiry proceeding did not start and the husband of the petitioner did not get any opportunity to participate and defend his case in the enquiry proceeding. However, long 12 years after issuance of the charge sheet and 7 years of appointment of the Inquiry Officer to conduct the enquiry, the disciplinary authority passed the impugned order dated 2.2.2010. For a ready reference, the order is reproduced below. "ORDER Perused the Departmental Proceeding drawn up against Sri Dilip Kr. Bordoloi, Ex- Sub-Accountant, then attached to Sadiya Branch of the Bank vide Head Office letter under memo No. ACAB/ADMN/HO/DP/DKB/98/5519 dtd. 18.6.1998 along with the Statement of Allegation of charges formulated under the said Departmental Proceeding, his written reply submitted vide letter dtd. 03.08.98 in defence against the charges under the said Departmental Proceeding. On perusal of the written reply submitted by Sri. Dilip Kr. Bordoloi, Sub-Accountant vide his letter dtd. 03.08.98 is has been found that he has admitted all the allegation of charges and admitted his guilt. As such I am of the opinion that it would only amount to an idle formality to lead evidence thereon, and prove the charges therefore the domestic enquiry is obviated. The misconduct involved in the charges proves lack of honesty and integrity on the part of Sri. Dilip Kr. Bordoloi, Ex- Sub-Accountant. Therefore having regard to the gravity of the misconduct, committing gross irregularities, dereliction of duties, breach of trust, negligence of duties, abetting fraud, acting in a manner detrimental to the interest of the Bank and causing huge pecuniary loss to the Bank, Sri D.K. Bordoloi deserves punishment under appropriate provision of the staff Rule of the Bank although Sri Bordoloi is no longer in active service of the Bank. In view of the above, I Smti. Nafifa Ahmed, ACS, Managing Director of the Assam Cooperative Apex Bank Ltd. in exercise of power conferred under Rule 46(a)(iii) of the Bank's (Staff) Rules currently in force, do hereby ORDER for recovery from retirement benefits accrued to Sri. In view of the above, I Smti. Nafifa Ahmed, ACS, Managing Director of the Assam Cooperative Apex Bank Ltd. in exercise of power conferred under Rule 46(a)(iii) of the Bank's (Staff) Rules currently in force, do hereby ORDER for recovery from retirement benefits accrued to Sri. D.K. Bordoloi, Ex-Sub-Accountant on account of Gratuity admissible under Rule 65(a) and cash equivalent to leave pay that may be admissible under Rule 76(1) as part of the Pecuniary loss caused to the Bank by negligence, misconduct and breach of Trust on the part of Sri. D.K. Bordoloi, Ex-S.A. The Departmental Proceeding thus stand disposed of accordingly." 7. Mr. Bowmik, learned Sr. Counsel has submitted that once a decision was taken by the disciplinary authority to conduct the regular enquiry and even Inquiry Officer was also appointed, it was incumbent to conduct the said enquiry providing all reasonable opportunity to the petitioner. He submits that although the Inquiry Officer was appointed to conduct the enquiry, the disciplinary authority after waiting for long 7 years of such appointment passed the above quoted order without holding any departmental enquiry. 8. Mr. Goswami, learned Standing Counsel, Apex Bank, on the other hand, submits that irrespective of the aforesaid development, when it was found that the petitioner had admitted the charge levelled against him, there was no necessity to proceeding with the enquiry proceeding and accordingly the disciplinary authority decided to impose the penalty vide the impugned order. In this connection, he has referred to the three decisions reported in (2008) 5 SCC 569 (Chairman & Managing Director, v. P. & Ors. v. Goparaju Sri Prabhakara Hari Babu); (1980) 4 SCC 379 (S.L. Kapoor v. Jagmohan & Ors.) and (2000) 7 SCC 529 (Aligarh Muslim University & Ors. v. Mansoor Ali Khan). He has also referred to Section 58 of the Evidence Act, so as to contend that since the petitioner admitted the charge levelled against him, the same amounts to admission of guilt and in such a situation, there was no necessity to conduct a regular enquiry. 9. In Goparaju Sri Prabhakara Hari Babu (supra), the Apex Court held that when there was admission of the charge by the delinquent in the enquiry proceeding, the disciplinary authority was within its competence and jurisdiction to impose the penalty. In the said case, the delinquent admitted in the enquiry proceeding that he was absent from duty. 9. In Goparaju Sri Prabhakara Hari Babu (supra), the Apex Court held that when there was admission of the charge by the delinquent in the enquiry proceeding, the disciplinary authority was within its competence and jurisdiction to impose the penalty. In the said case, the delinquent admitted in the enquiry proceeding that he was absent from duty. He tried to justify the same referring to his mother's purported illness. However, in the proceeding while admitting the said fact, he failed to explain his unauthorised absence due to his mother's illness. In such circumstances, the Apex Court held that imposition of penalty was justified. 10. In S.L. Kapoor (supra), the Apex Court was concerned with the principles involved in natural justice. Discussing the various facets of the said principle, it was held that where on the admitted or undisputable facts only one conclusion is possible, and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because courts do not issue futile writs. 11. In Aligarh Muslim University (supra) also the Apex Court was concerned with principle underlying natural justice. Placing reliance on the decision in S.L. Kapoor (supra) the Apex Court reiterated the said principle. 12. There is no quarrel with the said propositions of law. However, as has been held by the Apex Court in (Ambica Quarry Works Etc. v. State of Gujarat & Ors.) reported in AIR 1987 SC 1073 , ratio of each decision will have to be understood in the back ground of each case. It has been said long time ago that a decision is only an authority for what it actually decides, and not what logically follows from it. 13. In the instant case, the departmental proceeding was initiated against the petitioner by issuing charge sheet on 18.6.1998 and requiring him to submit his reply. Accordingly he submitted his reply on 3.8.1998. As noted above, according to the learned counsel for the petitioner, same was preceded by another written statement of defence dated 22.7.1998. On perusal of the written statement of defence, it cannot be said to be an unconditional admission of furnishing of report without verification. Accordingly he submitted his reply on 3.8.1998. As noted above, according to the learned counsel for the petitioner, same was preceded by another written statement of defence dated 22.7.1998. On perusal of the written statement of defence, it cannot be said to be an unconditional admission of furnishing of report without verification. What the petitioner contended is that he had furnished the reports which were required to be sent to the Head Office and the report was furnished adopting the procedure as per the permission accorded by the Manager or the Accountant. As stated in the written statement, he was also with the expectation that the report submitted by him would be further verified by the higher authority. 14. It was in the aforesaid context, the disciplinary authority decided to hold the enquiry to enquire into the charges. However, the decision took long 5 years. As noted above, the Inquiry Officer was appointed on 5.5.2003 and the petitioner was directed to appear before the Inquiry Officer. However, the proceeding did not commence and the matter remained in the cold storage and thereafter the disciplinary authority suddenly passed the impugned order on 2.2.2010. 15. In the impugned order, the disciplinary authority has mention about perusal of the departmental proceeding that was drawn against the deceased employee and has also referred to the written reply submitted by him. According to the disciplinary authority since the petitioner had admitted the charge and for that matter his guilt, there was no requirement to hold a domestic enquiry. Thus there was complete u-turn in passing the order dated 2.2.2010 inasmuch as, earlier on receipt of the written reply, the disciplinary authority took a conscious decision to proceed against the petitioner by conducting an enquiry and in fact, Inquiry Officer was also appointed. 16. Above apart, on perusal of the articles of charge in reference to the statement of imputation of misconduct. It is found that out of three charges, the charge of furnishing of false spot verification report (Charge No. 3), there are other charges i.e. Charge No. 1 and Charge No. 2 regarding furnishing of verification reports in respect of collateral securities offered against loan. The statement of allegation also refers to preliminary enquiry report dated 10.5.1994, the reply of the petitioner dated 18.2.1995, earlier written statement dated 28.6.1996 and 5.8.1996 etc. The statement of allegation also refers to preliminary enquiry report dated 10.5.1994, the reply of the petitioner dated 18.2.1995, earlier written statement dated 28.6.1996 and 5.8.1996 etc. As will be evident from the statement of allegation, the charges levelled against the petitioner were based on various records, reports and statements submitted by the petitioner. It is for that reasons when the petitioner submitted his written statement of defence, the disciplinary authority decided to hold an enquiry and accordingly the Inquiry Officer was also appointed, which, however, was long 5 years after submission of the written statement. Once the Inquiry Officer was appointed, it was incumbent on the part of the disciplinary authority to bring it to logical conclusion. However, nothing was done in the matter and the same was kept in the cold storage and suddenly the disciplinary authority passed the impugned order dated 2.2.2010 imposing the aforesaid penalty and three months thereafter the husband of the petitioner No. 1 died. For all the aforesaid reasons, I am inclined to accept the writ petition by setting aside the impugned order dated 2.2.2010. Consequently, the legal heirs i.e. the petitioners will be entitled to receive gratuity, leave encashment and all other retirement benefits, which normally would have accrued to the deceased employee had he been alive.