Shri Sagar Sadashiv Kasture vs Central Bank Of India on 15 June, 2010

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                       CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.2421 of 1994




                                                              
    Shri Sagar Sadashiv Kasture, 
    Officer Scale since removed, 
    Central Bank of India, 




                                                             
    Aranxeshwar Branch, Pune.                                         ..... Petitioner

              V/s.




                                                
    1.   Central Bank of India, 
         through its Chairman and
                              
         Managing Director, having its
         Central Office at Chandemukhi, 
         Nariman Point, Bombay - 400 021. 
                             
    2.   Regional Manager/Disciplinary
         Authority, Central Bank of India, 
         Regional Office, Pune, Ravivar Peth,
         Pune - 2. 
       


    3.   Zonal Manager/Appellate Authority, 
    



         Central Bank of India, Zonal Office,
         Pune - 317, Mahatma Gandhi Road, 
         Pune - 1.                                              ..... Respondents





    Mr.H.S.Venegavkar, for the petitioner. 
    Mr.S.K.Talsania,   Senior   Advocate   i/by   M/s.Sanjay   Udeshi   &   Co.,   for 
    respondent Nos.1 to 3. 

                           CORAM : P.B.MAJMUDAR &





                                   R.M.SAVANT, JJ.  

DATE : 15th June, 2010

ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : –

1. By way of this petition filed under Article 226 of the

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Constitution of India, the petitioner has challenged the order passed by the

Disciplinary Authority of the respondent Bank dated 28-08-1993, by which

the petitioner is subjected to penalty of removal from the services.

However, the said order is not to be treated as disqualification for future

employment. The order of the Disciplinary Authority was confirmed by

the Appellate Authority of the respondent Bank by an order dated

01-12-1993.

2.

The petitioner was initially appointed as a Clerk in the

respondent Bank on 05-03-1973 and was working at the relevant time, at

Vadgaon Anand Branch of the Bank upto 21-09-1977. The petitioner was

subsequently promoted as an Officer (Grade I) in February 1981. The

petitioner was subjected to disciplinary proceedings in December 1991. It

was alleged that the petitioner while working as Clerk at the said Branch

during the period between 05-03-1973 to 21-09-1981, committed

misconduct by misusing his position as an employee of the Bank by

deriving pecuniary benefits for himself through the loan of Rs.6,500/-

which was sanctioned and disbursed on 31-07-1976 in the name of one

Manaji Baban Kokane. It is the case of the respondent No.1. that one

Mr.Kokane, resident of Ale, Tal. Junnar, Dist. Pune, had submitted an

application on 03-07-1976 for availing a loan of Rs.7,000/-. A loan of Rs.

6,500/- was accordingly sanctioned to him and disbursed on 31-07-1976

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and the pecuniary benefit of the same was enjoyed by the petitioner, as is

evident from the credits made in the said loan account. Accordingly, it is

alleged that the petitioner misused his position as an employee of the

respondent Bank by deriving pecuniary benefit out of the said loan

transaction.

3. The petitioner denied the charges levelled against him.

The Disciplinary Authority appointed an Inquiry Officer for conduct of the

inquiry against the petitioner. The Inquiry Officer recorded the evidence

of the petitioner and the other witnesses and submitted his findings, which

are at Page 25 (Annexure B) of the paper book. The Inquiry Officer

observed that after going through the proceedings of the departmental

inquiry and considering the documentary evidence on record, he came to

the conclusion that the petitioner had taken Rs.6,000/- from Mr.Kokane,

the borrower. After considering the documentary and oral evidence on

record, the Inquiry Officer came to the following conclusions : –

(1) That Shri S.S.Kasture had taken Rs.6,000/- from Shri
M.B.Kokane the borrower, probably when he withdrew the
amount of Rs.6,200/-, Rs.6,000/-for a marriage in

C.S.O.E.’s house (P.O.Ex.67). There is no documentary
evidence that Shri Kasture had taken a loan of Rs.6,500/-
sanctioned to Mr.Kokane by the then Branch Manager Shri
S.P.Kataria (In fact, he claimed to have sanctioned Rs.
6,000/- only as a loan). D.R.Ex.11 of 21-01-1993. In such
a case then why Mr.U.N.Kamble, the then cashier paid Rs.
6,500/- against Rs.6,000/- sanctioned is yet intriguing.

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2. It is true that Shri Kasture had taken Rs.6,000/- when

he was a Clerk, from the Bank’s borrower, which is not
permitted under our staff conduct rules, leave aside
attracting provision under Officers service rules.

3. In his own confession on page No.120 of the
proceedings dated 22.1.1993 he has admitted that he used
to purchase clothes from Mr.Kokane, because of the

good relations. Mr.Kokane had with all the staff of the
Branch at that time. He has also admitted that shri Kasture
will refund/repay by Rs.100/- monthly instalment, which
he deposited in his (Mr.Kokane’s) loan account. This

amount totals comes of Rs.5,750/-

4. If we look for the statements of Mr.Kokane made on
various dates, it is seen that he had prayed for a simple rate

of interest to his retail trade loan account and even went to
the extent of asking for permission upto 50% to 60% (P.O.
Exh.68 dated 16.8.1991). It is incredible to believe that
such borrower will deposit in cash a sum of Rs.29,643/- on
29.10.1991 (D.R.Ex.10) and immediately request for a

non-due certificate (D.R.Ex.2) of 29.10.1991. Here it is
noteworthy to examine (D.R.Exh.1) dated 23.1.1985 in

which he had stated that he had incurred losses in the
business and the debit balance then appearing (i.e. Rs.
14,237.50) was difficult to be paid by Shri Kokane.

5. It is also pertinent to note that nowhere the D.R. Or
C.S.O.E. have refused that no pecuniary benefit was
derived from Mr.K.B.Kokane. The only difference in
version between Mr.Kokane and the C.S.O.E. Is that

Mr.Kokane says that Rs.6,000/- was paid in cash while the
C.S.O.E. Denies so, but agrees that he purchased some
cloth/clothes from him fro which a repayment of Rs.100/-
p.m., was assured.

6. It may therefore be a point for arriving at a conclusion
that the C.S.O.E., master minded to receive the benefit
may be in kind or cash for which he had to pay loan

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accounts through the withdrawals on the same day and

through the M.F. System when he worked at Satara Branch,
indicating subscription for cultural club, but actually
deducting the instalments for both at Wadgaon-Anand

Branch as per oral instructions.

7. It is also true that without necessary influence on the
then Branch Manger Shri Kataria, whether Mr.Kasture was

then working as a Clerk or an officer, it is immaterial for
the sake of exercising the required influence to grant
Rs.6,500/- as loan to Mr.M.B.Kokane, out of which he
derived the benefit of Rs.6,000/- from the borrower. In

fact, from the different versions of Mr.Kasture, Mr.Kokane
was not at all in need of the loan for tailoring or

Readymade cloth business, but the subsequent events,
the intimacy, reveals that the C.S.O.E., was in need of
the money and Mr.Kokane posed as a borrower in need for

C.S.O.E., with a view to later pay the loan in installments.

8. The M.R.’s attempt to get read and link all the
documents 1 to 69 he presented through all his 4
witnesses and trying to establish the simultaneous

transactions relationship is to be taken into account
seriously, as withdrawals and deposits are of the same dates

which obviously creates doubts in anybody’s mind.
These have not been challenged by D.R., or C.S.E.O.
This therefore, proves beyond doubt the nexus of the
transaction or the deal struck by the C.S.O.E., clandestinely

with the borrower and the wrong methods he adopted in
repayment of the loan.

9. From the statement of account of the borrower, though
his signatures have been obtained and manoevred on

(D.R.Ex.8 and 10) and withdrawal of Mr.Komane (D.R.Ex.
5,6,7, 8) only on D.R.Exh.of Rs.2,000/- Mr.Kokane did sign
the loan slip and D.R.Ex.10 of Rs. 29,643/- of 2.10.1991.

4. In the operative part of the report, the Inquiry Officer came

to the conclusion that the petitioner has misused his position to derive

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pecuniary benefit to the extent of Rs.6,000/- from Bank’s borrower, which

is prohibited under the Service Rules. It was also found that the

petitioner had deposited in all Rs.5,750/- and Rs.29,643/- for the loan of

Rs.6,000/- taken on 31-07-1976 upto 29-10-1991. It was also pointed out

that the Bank had not suffered any monetary loss in the said transaction.

It was also found that the charge regarding misuse of his position as an

employee was proved as also the charge regarding deriving pecuniary

benefit. The Disciplinary Authority agreed with the said finding and

passed an order of punishment against the petitioner, by which the

petitioner was removed from service, but the same was not to be treated

as disqualification for future employment.

5. The petitioner against the said order, preferred an Appeal

before the Appellate Authority. The same was also dismissed by the

Appellate Authority vide order dated 01.12.1993.

6. We have heard the learned counsel for the parties. Learned

counsel for the petitioner vehemently submitted that it is not a case in

which the Bank had suffered any financial loss. It is also argued that in

any case, what is proved against the petitioner is that he had borrowed the

amount and had entered into loan transaction with a person who was the

borrower of the Bank, which was treated as a misconduct. Learned

counsel for the petitioner submitted that though transaction in question

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had taken place between 1973 to 1976, the disciplinary proceedings were

initiated after considerable period i.e. in the year 1991 and therefore, on

the said ground the inquiry proceedings are required to be quashed. The

learned counsel further submitted that penalty given to the petitioner is

disproportionate, as the bank has not suffered any monetary loss.

7. Per contra, the learned counsel appearing for the

respondent Bank submitted that the petitioner being an employee of the

respondent bank, had committed serious act of misconduct, which is in the

nature of financial irregularity. Learned counsel for the respondent Bank

further submitted that it is irrefutable that petitioner took a pecuniary

benefit from the borrower of the bank and that the petitioner was paying

loan installments on behalf of the said borrower in the said loan account

by himself and he had stopped making such payments since 1991 when he

was transferred from the branch where the said account was being

operated. Since the deposits were being made in the said account, the

respondent No.1 Bank addressed a letter to the account holder Mr.Kokane,

informing him about making necessary payment in his loan account. At

the said time, Mr.Kokane, the borrower, informed the Bank that the actual

benefit of the loan was availed by the petitioner as the latter wanted a

loan of Rs.7,000/- in view of the marriage in his family. It was further

stated that the said loan was sanctioned when the regular Branch Manger

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was on leave. The said statement is made on 06-08-1991, which is evident

from Exh.67 of the Disciplinary Inquiry proceedings.

8. Learned counsel for the respondent Bank contended that in

the year 1991 when the aforesaid fact came to the knowledge of the

respondent Bank, inquiry was initiated against the petitioner and

therefore, question of initiating inquiry proceedings at a belated stage does

not arise.

9.

We have considered the contentions of the learned counsel

for the petitioner as well as learned counsel for the respondent Bank and

have also gone through the petition as well as order passed by the

disciplinary authority as well as the appellate authority. So far as the

question about misconduct on the part of the petitioner is concerned, it is

required to be noted that the scope of judicial review in such types of cases

is very limited, this Court cannot re-appreciate the evidence on record.

This Court is not required to examine the evidence on record as if it is an

appellate court and it is only required to see whether there was some

evidence available on record for reaching the conclusion, which the

Disciplinary Authority has reached and/or that there is no evidence worth

the name. It is required to be noted that the petitioner was charged in

connection with the misuse of his position as an employee of the

respondent Bank. From the material on record of the Inquiry proceedings,

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it cannot be disputed that the petitioner had enjoyed the benefit of loan

account, which was disbursed in the name of Mr.Kokane in July 1976.

Mr.Kokane had submitted an application on 03-07-1976 for a loan of Rs.

7,000/- and accordingly loan of Rs.6,500/- was sanctioned and disbursed

to him on 31-07-1976. The credits made in the said loan account is

through the petitioner, on which there is absolutely no dispute. Various

credits were made in the said loan account from time to time by the

petitioner.

10. The contention of the learned counsel for the petitioner is

that since he had bought cloth on credit from the said Kokane, he

deposited the amounts from time to time in the said loan account. The

Inquiry Officer has considered this aspect. The Inquiry Officer found that

the petitioner had taken a loan of Rs.6,000/- from Mr.Kokane, the

borrower of the Bank, which fact according to the Inquiry Officer is proved

by Exh.67. The conclusion in this regard is drawn by the Inquiry Officer

on the basis of voluminous evidence led before him. A detailed

conclusion has been arrived at by the Inquiry Officer in this behalf. On

the basis of various conclusions drawn by the Inquiry Officer, a finding was

recorded that the petitioner had misused his position by taking advantage

of pecuniary benefit to the extent of Rs.6,000/- from the bank’s borrower,

which is prohibited under the Service Rules of the Bank. It was also

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established by documentary evidence that the petitioner had made

deposits in the said loan account from time to time. The Disciplinary

authority has agreed with the findings of the Inquiry officer and ultimately,

it is held that the petitioner had derived pecuniary benefit from the

borrower of the bank, which is a misconduct under the Service Rules.

11. After going through the conclusion of the Inquiry Officer, it

is clearly established that the petitioner had taken pecuniary benefit of

amount of Rs.6,000/- from the borrower of the bank and in fact, petitioner

himself tried to pay the loan amount from time to time till 1991. But,

subsequently, he stopped making such payments. Considering the said

aspect, we find great force in the submission of the learned counsel for the

respondent Bank that since it was not possible for the petitioner to directly

obtain loan from the Bank, the petitioner through Mr.Kokane, managed to

see that Mr.Kokane obtains loan in his name, but ultimately, the benefit of

loan account had gone to the petitioner.

12. Our attention has been invited to Regulation 15 of the

Central Bank of India Officer Employee’s (Conduct) Regulations, 1976,

which also includes the supporting staff of the Bank also. It would be

expedient to reproduce Regulation 15, which reads as under : –

15. No officer employee shall, in his individual capacity –

(i) borrow or permit any member of his family to borrow

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or otherwise place himself or a member of his family under

a pecuniary obligation to a broker or a money lender or a
subordinate employee of the bank or any person,
association of persons, firms, company or institution,

whether incorporated or not, having dealings with the
bank;

(ii) buy or sell stock, shares or securities of any description
without funds to meet the full cost in the case of a purchase

of scrips or delivery in the case of a sale;

(iii) incur debts at a race meeting;

(iv) lend money in private capacity to a constituent of the
bank or have personal dealings with such constituent in the

purchase or sale of bills of exchange, Government paper or
any other securities; and

(v) guarantee in his private capacity the pecuniary
obligations of another person or agree to indemnity in such
capacity another person from loss except with the previous

permission of the competent authority.

Provided that an officer employee may, give to or
accept from a relative or personal friend a purely temporary
loan of a small amount free of interest, or operate a credit

account with a bonafide tradesman or make an advance of
pay to his private employee :

Provided further that an officer employee may
obtain a loan from a co-operative society of which he is a
member or stand as a surety in respect of a loan taken by

another member from a co-operative credit society of which
he is a member.

13. In this connection, learned counsel for the petitioner

contended that these Regulations have come into force in the year 1977

and the loan transaction in question had taken place in the year 1976 and

therefore, these Regulations could not be made applicable to the

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petitioner. Learned counsel for the petitioner further contended that the

said Rules can only be made applicable to the Officers and it is not

applicable so far as Clerks are concerned, as the petitioner was serving as a

Clerk at the relevant time. The applicability of the said rules was

challenged by the petitioner by filing Writ Petition No.1461 of 1992 and

the Division Bench of this Court rejected the Writ Petition at the admission

stage itself, holding that difference in the procedure does not affect the

right of the delinquent. The matter was thereafter, carried to the

Supreme Court by way of SLP No.9138 of 1992 and by an order dated

17-11-1992 the Supreme Court dismissed the SLP summarily. This fact

has been stated in the affidavit-in-reply filed by the respondent Bank and

as such, it is not disputed on behalf of the petitioner. Therefore, in so far

as employees like the petitioner are concerned, the said Regulations are

applicable.

14. So far as the applicability of the Regulations on account of

the fact that the loan transaction was took place in 1976, whereas the

Regulations came into force in 1977, it is required to be noted that the

petitioner has been charged for misconduct and the petitioner was paying

the amount on behalf of Mr.Kokane all throughout upto 1991. It is in the

year 1991, when the payment was stopped, the respondent bank realized

this fact in view of the letter addressed by the borrower Mr.Kokane that

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the actual beneficiary of the loan was the petitioner. The learned counsel

for the respondent Bank submitted that it was in the nature of a recurring

wrong which came to the bank’s notice in the year 1991. He further

submitted that under the previous Service Rules also, the act of the

petitioner could be treated to be a misconduct. In our view, the petitioner

who had taken pecuniary benefit of an amount of Rs.6,000/-, acted in the

manner which is not befitting a bank employee. In our view, it can be said

that the petitioner has failed in performing his duties with honesty and

integrity. Even as per the statement of Mr.Kokane, who is a borrower of

the bank, who stated that he had not taken loan from the bank, but it was

only for the benefit of the petitioner that he approached the bank for

availing the loan, as the petitioner wanted money for the purpose of

marriage in his family. The said conduct of the petitioner squarely falls

under the misconduct, mentioned in Regulation 15(1). Even assuming

that Rules of 1977 are not applicable to the petitioner, then also, the case

of the petitioner would squarely fall under the residuary clause of an act

“unbecoming of a bank employee”, which was even otherwise, treated as

misconduct prior to 1977. In view of the above, the submission of the

learned counsel for the petitioner that the act of the petitioner did not

amount to any misconduct, is required to be rejected.

15. So far as delay in initiating proceedings against the

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petitioner is concerned, it is required to be noted that the deposits towards

repayment in the said loan account was stopped in the year 1991. Since

no payment was received by the bank towards the said loan account,

respondent bank gave notice to the original borrower, the original

borrower ultimately addressed a communication to the respondent Bank

stating the factual aspects of the matter and that is how, the respondent

Bank came to know about the transaction which took place between the

petitioner and the borrower. In such circumstances, it cannot be said that

the action of the bank suffers from delay or latches in any manner. One

can only say that if the petitioner had continued to make payment,

perhaps the misconduct could not have come to light.

16. So far as the quantum of punishment is concerned, in our

view, this Court cannot interfere with the same looking to the misconduct

proved against the petitioner. In this behalf, learned counsel for the

respondent Bank has relied upon a decision of the Supreme Court in the

Case of Damoh Panna Sagar Rural Regional Bank and Ors., V/s. Munna Lal

Jain, 2005 1 CLR 821. In the said case, employee of a regional bank

withdrew an amount of Rs.25,000/- for his personal use. The amount

was withdrawn in view of his wife’s health having deteriorated and who

required surgical treatment. While upholding the decision of the bank in

terminating the employee’s service, the Supreme Court has observed :

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14. A bank officer is required to exercise higher stands of

honesty and integrity. He deals with money of the
depositors and the customers. Every officer/employee of
the bank is required to take all possible steps to protect the

interest of the bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and to do nothing
which is unbecoming of a bank officer. Good conduct and
discipline are inseparable from the functioning of every

officer/employee of the bank. As was observed by this
Court in Disciplinary Authority-cum-Regional Manager V.
Nikunja Bihari Patnaik, 1996(73) FLR 1252 (SC), it is no
defence available to say that there was no loss or profit

resulted in case, when the officer/employee acted without
authority. The very discipline of an organization more

particularly a bank is dependent upon each of its officers
and officers acting and operating within their allotted
sphere. Acting beyond one’s authority is by itself a breach

of discipline and is a misconduct. The charges against the
employee were not casual in nature and were serious.
These aspects do not appear to have been kept in view by
the High Court.

17. During the course of hearing, learned counsel for the

respondent Bank submitted that the petitioner was subjected to

disciplinary proceedings, whilst holding a higher post for different charges,

but since he was removed from the service, those proceedings have lapsed.

Be that as it may, in the facts and circumstances of the present case, this

Court would not like to interfere with the punishment awarded to the

petitioner by the Disciplinary authority.

18. Learned counsel for the petitioner submitted that at the

time of removal of the petitioner, the amount which the petitioner was

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entitled to receive has been paid to him by directly crediting the same in

the loan account of the petitioner and nothing is now due and payable to

the petitioner.

19. For all the aforesaid reasons, the writ petition is dismissed.

Rule is discharged with no order as to costs.

          ( R.M.SAVANT, J. )                            ( P.B.MAJMUDAR, J. )




                                          
                           
                          
       
    






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