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Gujarat High Court · body

2021 DIGILAW 614 (GUJ)

M. B. PARMAR v. STATE BANK OF INDIA

2021-07-22

BIREN VAISHNAV

body2021
JUDGMENT : 1. This petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the order dated 02.08.2005 passed by the disciplinary authority imposing a penalty of dismissal from service of culmination of departmental proceedings. 2. Facts in brief are as under: 2.1 The petitioner was appointed as Cashier-cum-Clerk on 17.01.1979. He thereafter was promoted as Cashier-Assistant (cash) and Senior Assistant, on which post he served till he was dismissed from service by order dated 02.08.2005. 2.2 A charge-sheet dated 04.06.2004 was issued to the petitioner for holding a departmental inquiry for four charges viz. abusing and assaulting the Supervisor, savings inconsistent with earnings, borrowing without prior approval and fake bill for traveling. 2.3 On appointment of an Inquiry Officer, departmental proceedings were held and a report was submitted on 22.05.2005. The inquiry report was sent to the petitioner on 04.03.2005. The petitioner replied on 14.03.2005. A show cause notice dated 14.05.2005 was issued to the petitioner to show cause as to why the penalty of dismissal should not be imposed. The petitioner filed a replies on 02.06.2005 and 16.06.2005. A tentative order was passed on 01.07.2005 after hearing the petitioner personally. By the impugned order dated 02.08.2005, a penalty of dismissal from service and forfeiture of whole amount of gratuity was imposed. That is a subject matter of the present petition. 3. It appears that the Registry had issued notice to the petitioner on 11.11.2020. The record of service shows that the petitioner has received the notice of the Court on 05.12.2020 which was issued on elevation of his advocate. Under challenge is the order of dismissal dated 02.08.2005 passed by the respondent bank. This was in pursuance of a charge-sheet issued to the petitioner. In all, four charges were imputed against the petitioner. Perusal of the Inquiry Officer’s report, particularly the finding recorded therein, would indicate that one of the charge that is proved, is that of hurling obscenities at the Branch Manager and assaulting him with a mobile phone in the latter's cabin. 4. Perusal of the petition indicates that the petitioner had raised the following grounds in his petition in support of his challenge to the order of dismissal dated 02.08.2005. 4. Perusal of the petition indicates that the petitioner had raised the following grounds in his petition in support of his challenge to the order of dismissal dated 02.08.2005. 4.1 Though the allegations leveled against the petitioner were denied by giving a detailed explanation to each charge, a departmental inquiry was held considering the explanation as unsatisfactory by the disciplinary authority. The proceedings are assailed by the petitioner as they being in breach of Chapter-33 of the Rules. 4.2 Violation of procedural rules has also been pleaded and it is submitted that the explanations tendered by the petitioner were not considered at all. Reliance is placed on Clause-(v) of para 3 of the Chapter-13 of the Publication Bank Employees Service Rules and Disciplinary Action. 4.3 The order is also assailed on the ground of breach of principles of natural justice inasmuch as the statements were recorded of persons at the preliminary stage without examining such persons in the departmental inquiry. According to the petitioner, this was a case of “no evidence”. 4.4 It could not be held by the disciplinary authority that the petitioner had committed “Fraud”. The only charge was of insubordination and indecent behavior. Hence, the findings of the disciplinary authority is beyond the charge. The order of the Appellate Authority also suffers from the same defect. 4.5 14 documents were produced by the petitioner before the Inquiry Officer giving contrary version of the incident in support of the petitioner. The Inquiry Officer brushed them aside by merely stating that “it is not known who inspired the defense to obtain this statement.” which shows the bias of the Inquiry Officer. 4.6 The charge of assaulting the Branch Manager with the mobile phone has not been proved inasmuch as the complaint made by the Manager was not supplied to the petitioner. This violates the principles of natural justice. 4.7 With regard to the second charge regarding the inconsistency between the transaction of his savings bank account and current bank account, the charge was not that the petitioner was possessing disproportionate wealth or that he had made earnings by dubious means. Judicial notice can be taken of the fact that the petitioner had shown high value transactions for obtaining the visa for his son which was done by overdraft withdrawals and re-crediting the same. There is no evidence on record that the petitioner attributed mala-fide intention. 5. Judicial notice can be taken of the fact that the petitioner had shown high value transactions for obtaining the visa for his son which was done by overdraft withdrawals and re-crediting the same. There is no evidence on record that the petitioner attributed mala-fide intention. 5. With regard to charge no.3 which pertained to borrowing of money from M/s.Gruh Finance, the petitioner would submit that the loan was taken by Mr.Paras Parmar - another son of the petitioner and he was paying installments. Only one installment was paid by the petitioner. The penalty proceedings have been dug up due to the assault on the Branch Manager and the order therefore suffers from mala-fide. 6. With regard to charge no.4 where the allegation is that the petitioner submitted fake bill. The allegation is that the vehicle with the said registration number was not in existence. The Inquiry Officer overlooked the defense that the defense witness has stated that there was mistake in writing the correct number of the vehicle. 7. Mr.Nagesh Sood learned advocate has appeared for the respondent – State Bank of India. He took the Court through the charge-sheet to submit that the allegations leveled against the petitioner were serious. The loan allegation which was substantially proved i.e. of abusing the Branch Manager was enough to pass the order. 7.1 He would further take the Court through the findings of fact arrived at during the course of inquiry proceedings and submit that on the basis of the evidence available on record, it cannot be said that the charges were not proved. This Court in exercise of powers under Article 226 of the Constitution of India, could not re-appreciate the evidence and take a view different from the one taken by the Inquiry Officer based on evidence arrived at in preponderance of probability. 7.2 Procedural fairness was adhered to and in compliance of the rules after giving an opportunity of hearing and following the principles of natural justice, the order of penalty was passed. 8. Having considered the submissions made and from the perusal of the paper book, what emerges is as under: A. Reading of the charge-sheet indicates that while the petitioner was posted as Senior Assistant at Bhaktinagar Branch, Rajkot, he reported late for duty on 13.01.2004. Since his counter was assigned to someone else, he was asked to perform work at a different counter. Since his counter was assigned to someone else, he was asked to perform work at a different counter. When asked to do so, the petitioner started shouting at the Bank Manager and hurl obscenity. Perusal of the Inquiry Officer’s report would indicate that statements of several customers at the bank premises were recorded. Briefly stated, statement of one Harjivan Kabariya and also of other witnesses were recorded suggesting that the petitioner shouted unparliamentary words at the bank manager. He assaulted the Manager and started beating him on the head. A statement by the Deputy Manager H.D.Valand (ME-3) records that such an incident did happen and even the petitioner threatened the officer to change his statement or face dire consequences. ME-12 Haresh J. Bhatt working as a Senior Assistant at the TDR counter also records that the petitioner assaulted the Manager. In support of his defense, Mr.Parmar - the petitioner gave letters of these very witnesses denying the incident. The Inquiry Officer records that the statements given by these witnesses as management witnesses were obtained spontaneously and immediately after the incident had occurred and it was evident that the letters obtained in defense were through coercion. The defense of the petitioner as to mismatch of time recorded is of no significance. It therefore comes on record that the charge of assault is proved. B. With regard to the second charge, the charge is that volume of transaction in petitioner’s savings bank account and the currant bank account was inconsistent with earnings. That the petitioner is operating an account of ‘Akshar Realities’ with the bank. In support of the charge, a transaction sheet was produced for the period from 06.09.2002 to 08.11.2004 which shows that the limit of Rs.2 lakhs was fully availed off on 28.09.2002 when there were 20 high value transactions. Such is also the case on analyzing the transaction sheets of the savings bank account. A joint account viz. account no. 7675 maintained by the petitioner with his wife at the Dena Bank showed 38 high value transactions ranging from Rs.20,000/- to Rs.6,50,000/-. To the defense of the petitioner that these transactions were entered into so as to enable the petitioner’s son to get a visa, were not believed. A joint account viz. account no. 7675 maintained by the petitioner with his wife at the Dena Bank showed 38 high value transactions ranging from Rs.20,000/- to Rs.6,50,000/-. To the defense of the petitioner that these transactions were entered into so as to enable the petitioner’s son to get a visa, were not believed. A detailed analysis has been made by the Investigating Officer on the high value transactions showing that the average balance in his account have also been highly inconsistent with his earnings. The Inquiry Officer also opines that as per the records, the son of the charge-sheeted employee was granted a visa from 04.09.2002 to 30.09.2003 and left the country on 29.09.2002 and returned on 21.10.2003. The transactions showed in the detailed statement that the Inquiry Officer has reproduced that these high value transactions were for the period from 03.04.2002 to 01.07.2004. It was also found that the transactions that the account showed with M/s. Akshar Realities, what came out was that M/s. Akshar Realities is a family concern, where Mr.Manish M. Parmar is a partner, a son of the petitioner. When the petitioner had been living beyond his known source of income, has been assessed on the basis of his monthly remittances, the charge was held to be proved. C. With regard to the 3rd Charge on the question of he having obtained a loan from M/s Gruh Finance without prior approval, is also held to be proved inasmuch as the Investigating Officer has considered the same while dealing with charge no.3. D. With regard to charge of fake bills, it was observed that the vehicle No.GJ-3Y-407 was not in existence at all. Though an error cannot be ruled out while making the bill, on the examination and cross-examination of the witnesses, the Inquiry Officer found that the address given on the letter head that is of Ritz Travels, such a place could not be located. No log book of the vehicle was found. The travel agency had no registration. Shri Prakash Vyas of Ritz Travels could not provide any copies of the bills or records in connection with providing any vehicle to any party including staff of the bank. E. As far as the following procedural norms in context of principles of natural justice, it is found from the record that a copy of the inquiry report was furnished to the petitioner on 04.03.2005. E. As far as the following procedural norms in context of principles of natural justice, it is found from the record that a copy of the inquiry report was furnished to the petitioner on 04.03.2005. The petitioner replied on 14.03.2005. On 14.05.2005 considering the submissions made by the petitioner, the disciplinary authority gave a tentative order as to why the petitioner should not be dismissed, to which the petitioner replied on 02.06.2005 and on 16.06.2005. An opportunity of personal hearing was given when the petitioner remained present and it was only thereafter the order of dismissal was passed which is the subject matter of challenge before this Court. F. Perusal of impugned order together with the contextual findings as reproduced herein above of the Inquiry Officer would indicate that the bank rightly did not show any leniency based on the material available in support of the allegations made against the petitioner which were proved. G. It is a well settled principle of law that as long as procedural fairness has been shown in the decision making process to arrive at a conclusion based on the Inquiry Officer’s report which records findings on the basis of preponderance of probability, the same cannot be faulted. 9. Accordingly, the petition is dismissed with no order as to costs.