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Judgment
Arvind Kumar Verma, J
This appeal is barred by delay of 197 days for which the appellant has filed IA No. 1 of 2023, which is an application for condonation of delay in filing the appeal. For the reasons stated therein, the delay is condoned.
Challenge in this appeal is to the order dated 21.04.2023 passed by the learned Single Judge in WPS No. 4443/2012 by which his petition challenging the order dated 23.12.2011 (Annexure P/1), 03.01.2012 and 02.07.2011 (Annexure P/2 to the writ petition), by which the appellant/writ petitioner was found guilty of misconduct and awarded the punishment of removal from service, has been dismissed.
The facts, in brief, as projected by the appellant are that that the appellant was an officer in the State Bank of India who was having an overdraft account bearing overdraft Account No. 30015415086 for a limit of 1,28,000/- and overdraft account bearing overdraft Account No. 30031232080 for a limit of 4,50,000/-. The appellant was posted at Pandri Branch Raipur from 28.07.2005 to 23.08.2007. On 24.08.2007, the appellant was transferred to Pamgarh Branch but the appellant met with an accident and due to which, he remained on leave from 24.08.2007 to 30.12.2007 and thereafter, he joined on 31.12.2007 at Pamgarh Branch. When the appellant was working at Pamgarh Branch, the respondent No.6 issued a letter on 16.09.2008 seeking explanation of overdrawing of overdraft Account No. 30015415086 to the limit of Rs.1,28000/- which was overdrawn to Rs.7601.35 by cash withdrawal on 02.08.2008 and on subsequent various dates and directed the appellant to submit suitable reply within 7 days before respondent No.6.
On 17.09.2008, respondent No.6 again issued a letter to the appellant on four heads and directed him to rectify his irregularities immediately. On 23.09.2008, the appellant sent a letter to respondent No.6 requesting to credit his salary in overdraft account for the period from September, 2007 to December, 2007 i.e the period from which the appellant met with an accident and was on medical leave. On 06.11.2008, the appellant was deputed to Akaltara Branch and directed to join immediately at Akaltara Branch. On 08.11.2008, respondent No.5 issued a letter to the appellant for overdrawing in overdraft account and unauthorized absence and directed him to submit explanation/reply on three points before 14.11.2008 failing which it would be presumed that the appellant has nothing to offer and the Bank would be free to proceed against the appellant as per the service rules.
On 02.12.2009, the Regional Manager, Region 7, Raipur sent a notice to the appellant for overdrawing in his own overdraft account and directed to submit explanation within three days from the date of receipt of the letter. Thereafter, the appellant submitted his reply to the said notice explaining that he met with an accident on 24.08.2007 and was on medical leave till 30.12.2007 and joined the service on 31.12.2007 at Pamgarh Branch. Thereafter on 02.12.2008, son of the appellant suffered from Hemi-Paralysis of brain and for this reason, the appellant had to take his son to Nagpur for treatment and due to financial crisis, as the appellant was not getting the salary for four months, he withdraw the amount from his overdraft account. The appellant stated that he had regularized the overdraft account and closed the same on 19.12.2008. The appellant denied that he left the debt receipts in the Branch and lastly he prayed to take a lenient view towards him.
On 25.06.2010, respondent No.3 issued a charge-sheet against the appellant and, thereafter on 10.08.2010, appellant submitted his reply explaining that the son of the appellant is suffering from Hemi-paralysis of brain and for this reason, he withdrew an amount from the overdraft account. On 17.08.2010 it was informed to the appellant that the departmental enquiry has been initiated against him and the enquiry officer had been appointed. On 21.08.2010, respondent No.4 informed the appellant that the preliminary hearing of the case would be held on 10.09.2010 at Pamgarh Branch. On 29.09.2010, the proceedings of departmental enquiry were started against the appellant. Copy of day-to-day departmental enquiry proceedings were supplied to the appellant on 20.11.2010 (Annexure P/9). On 21.01.2011, the enquiry was concluded and on 01.02.2011, the Presenting Officer submitted his brief report which was sent to the appellant on 15.02.2011 and two weeks time was granted to the appellant to submit his defence. The enquiry authority reported that all charges stand proved against the appellant on the basis of only documentary evidence i.e. from Exhibit P/1 to Exhibit P/17. On 22.02.2011, respondent No.3 sent a show-cause-notice to the appellant in which it was stated that the disciplinary authority fully agrees with the finding of the Enquiry Officer and advised to make submission on the findings of the enquiry report within seven days from the date of receipt of copy of the letter.
On 01.04.2011 appellant submitted his reply in which the appellant stated that he did not receive four months salary and as the son of the appellant was suffering from brain disease and was in a critical condition, the appellant took him to Nagpur for his treatment, therefore, appellant had withdrawn the amount from the overdraft account on the dates mentioned in the charge-sheet. On 31.05.2011, respondent No.2 sent a letter to the appellant by which it was informed to the appellant that it was proposed to impose major penalty of removal from service and directed him to appear before respondent No. 2 on 08.06.2011 for personal hearing. In the said letter, there is a note that this notice is issued as an interim measure till the appeal filed by the Bank in SLP No.16541 of 2010 is finally decided by the Honble Supreme Court. The SLP No.16541/2010 appears to have been decided finally vide order dated 23.11.2013.
Vide order dated 02.07.2011, respondent No.2 informed the appellant that the penalty of removal from service in terms of Rule 67(i) of the Rules, 1992 has been imposed against the appellant. Against this order, the appellant preferred an appeal before respondent No.1 and submitted all medical documents of his son and prayed to take a sympathetic view which was also rejected vide order dated 23.12.2011. The same was challenged before the learned Single Judge, which also stood dismissed. Hence, this appeal.
Mr. Raza Ali, learned counsel for the appellant submits that the appellant has not been afforded proper opportunity of hearing by the respondents, as in the memo of charges itself mentioned that, the documents has not been supplied to the appellant and therefore entire departmental enquiry and order impugned has been passed by the respondents is in violation of principle of natural justice, but the learned Single Judge has not consider the said aspect of the matter and passed the impugned order dated 21.04.2023. The charges in respect of over draft accounts is not comes within a definition of misconduct as the same is not in relation between employer and employee, as holding the over draft account is in between consumer and the bank and the remedy is available for the bank to adopt the procedure available to them against the consumer, the said fact has not been considered by the learned Single Judge and the said ground is based on question of law and the question of law can be raised at any stage of the proceeding, even the Court itself can pose the questions of law. Any person can be prosecuted only after following the procedure prescribed under the law or in accordance with law and in the present case on the face of record it is clear that due process of law has not been followed while considering the case of grant of sanction and prosecution of the appellant is in the offing after obtaining an illegal sanction. The relationship between the appellant and respondent bank in regard to the overdraft facility is more of a Banking Customer employee relationship, and not of an therefore the Departmental Enquiry can not be initiated against the customer.
On the other hand, Mr. Harshal Chouhan, learned counsel for the respondent/Bank would submit that the order passed by the learned Single Judge in dismissing the writ petition of the appellant is just and proper and warrants no interference. The respondent/Bank had adopted the due process of law and after a full fledged enquiry, the punishment of removal from service has been passed.
We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.
From perusal of the order passed by the learned Single Judge, it is evident that the learned Single Judge has taken note of all the grounds raised in the writ petition and after relying on the decisions of the Supreme Court in United Bank of India v. Bachan Prasad Lall reported in AIR 2022 SC 943, Deputy General Manager (Appellate Authority) and others v. Ajai Kumar Shrivastava reported in (2021) 2 SCC 612 and Tara Chand Vyas v. Chairman & Disciplinary Authority and others reported in (1997) 4 SCC 565, has dismissed the writ petition holding the punishment awarded to the appellant/writ petitioner to be just and proper.
Further, at paragraph 14 of the judgment under challenge, the learned Single Judge has quoted the relevant portions of the reply/explanation submitted by the appellant/writ petition wherein he has admitted many of the charges levelled against him. From perusal of the same, as rightly held by the learned Single Judge, it appears that the appellant has made an attempt to justify the illegal withdrawal made by him on the ground of illness of his son.
The appellant has failed to point out any procedural irregularity or illegality in the order of removal from service and looking to the conduct of the appellant, who is a Bank employee and is entrusted with the money of the depositors, is indulged in illegal activity of withdrawing money without any authority of law, the punishment inflicted on him cannot be said to be disproportionate in any manner.
We do not find any infirmity or illegality in the order passed by the learned Single Judge and as such, this appeal stands dismissed.