Andhra HC (Pre-Telangana)
Mohamed Muneer Basha vs Atul Agarwal, Executive Director ... on 6 January, 2016
HONBLE SRI JUSTICE R.KANTHA RAO
Contempt Case No.1769 of 2015
06-01-2016
Mohamed Muneer Basha Petitioner/Respondent
Atul Agarwal, Executive Director (Reviewing Authority), The IOB, Chennai; and 2
others Respondents/Petitioners
Counsel for the Petitioner:Sri J.Sudheer
Counsel for the Respondents: Sri A.Krishnam Raju,
Standing Counsel.
<Gist:
>Head Note:
? Case referred:
1.(2013) 12 SCC 372
2.(1998) 2 SCC 407
3.1995 Supp (3) SCC 590
4.(2007) 15 SCC 192
5.(2010) 12 SCC 514
HONBLE SRI JUSTICE R.KANTHA RAO
Contempt Case No.1769 of 2015
and
W.V.M.P.No.2811 of 2015
in
W.P.No.18608 of 2015
Judgment:
The petitioner filed the writ petition with a prayer to set
aside the proceedings dated 23-12-2013 issued by the
3rd respondent-Disciplinary Authority and the consequential
order dated 28-4-2014 issued by the 2nd respondent-Appellate
Authority and also the proceedings dated 05-02-2015 issued
by the 1st respondent-Reviewing Authority whereby and
whereunder the petitioner was compulsorily retired from
service by the Disciplinary Authority pursuant to the
conclusion of the departmental enquiry. An interim
application (W.P.M.P.No.24057 of 2015) was made to suspend
the impugned proceedings. This Court, after hearing the
learned counsel appearing for the petitioner, passed an interim
order dated 09-7-2015 suspending the proceedings dated
23-12-2013 and 28-4-2014 and the impugned order dated
05-02-2015.
2. The petitioner filed the present contempt case alleging
that after passing of the interim order, the respondents-Bank
are obliged to reinstate him into service but they have not
done so. They willfully and intentionally violated the interim
order passed by this Court and therefore, they are liable for
punishment under the Contempt of Courts Act.
3. The respondents 1 to 3-Bank filed counters
contending, inter alia, as follows:
(a) The order of compulsory retirement was passed
against the petitioner after full-fledged enquiry and following
the procedure prescribed in relation to the disciplinary
proceedings against the petitioner. The interim order was
passed by the Court recording non-appearance of the
respondents and the order does not indicate any other reason
for granting interim suspension. The respondents-Bank filed
counters along with the stay vacate petition on 06-6-2015 and
W.V.M.P.No.2811 of 2015 is pending adjudication before this
Court. The contempt case is filed by the petitioner to exert
pressure on the authorities of the respondents-Bank, knowing
fully well that none of the officers have violated the orders
passed by this Court. The petitioner was paid all terminal
benefits i.e. Provident Fund contribution of Rs.8,25,411/-,
Gratuity amount of Rs.10,00,000/- and he has been drawing
a pension of Rs.28,892/- with effect from 24-12-2013.
(b) W.P.No.18608 of 2015 was listed before this Court on
24-6-2015 and this Court initially issued Notice before
admission and directed the Registry to post the writ petition
on 15-7-2015. The respondents-Bank filed the vacate petition
along with the counter on 06-8-2015. In the meanwhile, the
matter was called on 09-7-2015 and the interim order was
passed on the representation made by the petitioners counsel
that the respondents though served with notice did not
appear. Therefore, there is no lapse on the part of the
respondents-Bank in not appearing before the Court on
09-7-2015, the date on which the interim order was passed by
this Court.
(c) The substance of the charges levelled against the
petitioner is that the Bank noticed in the course of
investigation that 15 persons got their accounts opened by
producing fabricated Voter Identity Cards and Ration
Cards as proof of their identity for opening the accounts.
The respondents-Bank sanctioned 15 loans each
Rs.10,00,000/- to the 15 individuals and their Savings Bank
Accounts were opened. All the loans were sanctioned for
purchase of agricultural land under a scheme by name
Bhoomi Lakshmi. In the process of sanctioning the loans, the
petitioner had committed various irregularities in collusion
with Mr. K.Subba Rao and sanctioned the loans based on
fabricated documents. 9 out of 15 borrowers had given their
office address as that of Mr. K.Subba Rao, who is said to be
the mediator. All the loans were guaranteed by Mr. Subba
Rao. Subsequently, after conducting detailed investigation
into the irregularities, fraud was reported to the Reserve Bank
of India on 31-12-2012. A report was also lodged with the
Police on 01-3-2013. Departmental action was initiated
against the petitioner and other delinquent employee as per
the service regulations of the respondents-Bank.
(d) In view of the seriousness of the irregularities, the
petitioner was placed under suspension vide order dated
26-02-2013 and a Memorandum of Allegations and Articles of
Charge was issued to the petitioner on 24-5-2013 pointing out
various lapses committed by him. The petitioner submitted
his detailed reply to the charge-sheet on 21-6-2013.
An enquiry was held against the petitioner on 26-9-2013 and
27-9-2013. The petitioner was duly represented in the enquiry
proceedings by one Mr. Vijayasenan P, Vice President, Indian
Overseas Bank Officers Association. After careful
consideration of the entire material available on record and
duly considering the explanation offered by the petitioner, the
Disciplinary Authority passed speaking order imposing
a penalty of compulsory retirement in terms of Regulation 4(h)
of the Indian Overseas Bank Officer Employees (Discipline and
Appeal) Regulations, 1976 (the 1976 Regulations, for short).
The petitioner preferred an appeal against the order of the
Disciplinary Authority vide appeal dated 05-02-2014.
The Appellate Authority, after giving personal hearing to the
petitioner on 20-3-2014 and after going through the entire
record, dismissed the appeal on merits by orders dated
28-4-2014. Thereafter, the petitioner preferred a review
against the order of the Appellate Authority on 23-6-2014.
The Reviewing Authority, considering the fact that there is no
merit in the petition, dismissed the same on merits.
(e) Thus, according to the respondents-Bank, there is no
violation of the principles of natural justice and as the order
has been passed duly complying with the procedure prescribed
for disciplinary proceedings as per the Regulations of the
Bank, it needs no interference by this Court. It is further
contended that since the prayer in the main writ petition as
well as in the miscellaneous petition are one and the same, the
interim relief sought to suspend the impugned proceedings
should not have been granted by this Court.
(f) It is further contended that there are no procedural
irregularities in conducting the departmental enquiry by the
Enquiry Officer and it was conducted as provided under the
1976 Regulations. A copy of the report was furnished by the
3rd respondent-Disciplinary Authority to the petitioner seeking
his objections, if any. The objections dated 20-11-2013 were
received and a speaking order imposing punishment of
compulsory retirement was passed against the petitioner.
(g) Nextly, it is submitted that the findings in the enquiry
report obviously indicate that the petitioner resorted to several
omissions and commissions, which were unearthed by the
inspection of the central office. Mr. Subba Rao, mediator, was
accommodated by the petitioner by granting 15 loans under
the scheme Bhoomi Lakshmi by flouting lending norms and
violating the Banks guidelines and instructions, to close the
loans in order to avoid further legal prosecution and further,
the un-debited interest portion amount of Rs.25,67,000/- in
respect of those loans are not going to be realized since no
enforceable security is available and there is loss to that extent
to the Bank.
(h) Contending as above, the respondents-Bank sought to
vacate the interim order dated 09-7-2015 in W.P.M.P.
No.24057 of 2015 in W.P.No.18608 of 2015 granted by this
Court.
4. I have heard Sri J.Sudheer, learned counsel appearing
for the petitioner and Sri A.Krishnam Raju, learned Standing
Counsel for the respondents-Bank.
5. From the contentions put-forth in the counter,
it cannot be said that the proceedings impugned and the
consequential order were passed without affording any
opportunity to the petitioner. However, a specific finding has
to be recorded on the said issue only after going through the
detailed submissions at the hearing of the main writ petition.
The contention put-forth by the learned counsel appearing for
the petitioner is that along with the petitioner, one Mr. P.V.
Ramana Reddy, who was an Assistant Manager, had similar
role in the opening of Savings Bank Accounts of 15 persons
and sanctioning of loans to them. He was also issued with
a similar charge-sheet but he was given a lesser punishment
of imposing fine. The learned counsel appearing for the
petitioner submits that since there is a disparity of
punishment between the co-delinquent and the petitioner,
passing of the interim order suspending the punishment of
compulsory retirement is proper in the present case and
therefore, it has to be made absolute.
6. On the other hand, it is contended by the learned
Standing Counsel for the respondents-Bank that Mr. P.V.
Ramana Reddy, who is subordinate to the petitioner, acted at
the behest of the petitioner and his role cannot be equated to
that of the petitioner who was mainly responsible for issuance
of loans. According to the learned Standing Counsel, when the
petitioner was the loan sanctioning authority without his
sanction, the loans could not have been granted.
7. The learned counsel appearing for the petitioner in
support of his contention relied on the following judgments:
(1) LUCKNOW KSHETRIYA GRAMIN BANK v.
RAJENDRA SINGH , wherein the Supreme Court held that the
award of lesser punishment to co-delinquent would be
violative of Article 14 of the Constitution of India, if the
delinquent and the co-delinquent are similarly placed in
respect of the charges as well as their conduct subsequent to
service of charge-sheets. It is further held that the conduct of
co-delinquent of accepting his guilt and tendering
unconditional apology may justify lesser punishment than the
delinquent who throughout denied the charges.
(2) DIRECTOR GENERAL OF POLICE v. G.DASAYAN .
In this case also, the Supreme Court held that the order
passed by the Disciplinary Authority exonerating the two other
Constables but imposing the punishment of dismissal from
service on the respondent and that of compulsory retirement
on the Head Constable is not proper. Having regard to the
said circumstances, in order to meet the ends of justice, the
Supreme Court substituted the order of compulsory retirement
in place of the order of the respondents dismissal from
service.
8. The Supreme Court in the above cases was dealing
with the punishment imposed. The decisions above-referred
rendered by the Supreme Court are in relation to the main writ
petitions but not in relation to the orders at the interlocutory
stage. In the instant case, we have to find out as to whether
as an interim measure, having regard to the facts and
circumstances of the present case, the order suspending the
punishment of compulsory retirement against the petitioner
can be passed.
9. As to this, the contention of the learned Standing
Counsel for the respondents-Bank is that the interim prayer
and the prayer in the main writ petition are one and the same
and therefore, the Court ought not to have granted the interim
relief as prayed for in the absence of the version of the
respondents-Bank. In support of his contention, the learned
Sanding Counsel relied on the judgments in STATE OF U.P. v.
VISHESHWAR , DAYANAND VEDIC VIDYALAYA
SANCHALAK SAMITI v. EDUCATION INSPECTOR,
GREATER BOMBAY and INDOOR DEVELOPMENT
AUTHORITY v. MANGAL AMUSEMENT PRIVATE LIMITED .
In all these cases, the Supreme Court held that the interim
order in the nature of granting the main relief itself normally
shall not be granted. According to the Supreme Court, such
interim order virtually amounts to allowing the writ petition at
the stage of interim order and it will also cause complications
if the writ petition is rejected ultimately. The Supreme Court
expressed the view that the more appropriate course would be
to hear the main matter itself expeditiously.
10. Since at present the interim order passed by this
Court has been dealt with, with a view to take a decision as to
whether the interim order should be confirmed or should be
vacated basing on the contentions urged in the counter
affidavit, this Court is of the view that it could not be
appropriate to express any opinion on merits about the case.
Therefore, no final decision can be rendered on the question as
to whether there is any disparity in the punishment between
the co-delinquents.
11. The sole question which requires determination at
this stage is as to whether even if the Court considers that
there is disparity in the punishment, the interim order
suspending the compulsory retirement having regard to the
proved misconduct in the disciplinary proceedings against the
petitioner would be appropriate or not.
12. The substance of the charges against the petitioner is
that he granted loans to 15 individuals without following the
procedure and at the behest of one Mr. Subba Rao, who is
a mediator. According to the respondents-Bank, the real
beneficiary is Mr. Subba Rao but not the persons in whose
names the loans were sanctioned. The petitioner is the loan
sanctioning authority.
13. Having regard to the nature of the allegations, which
have been referred to herein before, this Court is of the view
that the charges against the petitioner are very serious in
nature and according to the respondents-Bank, they have
been proved in the course of departmental enquiry. The main
writ petition is filed challenging the order of compulsory
retirement which was passed by the Disciplinary Authority in
the departmental enquiry. The said order was confirmed in
the appeal as well as in the review. This Court passed interim
order considering the submission that the prescribed
procedure has not been followed while inflicting the
punishment and also taking into consideration the fact of
disparity in the punishment between the petitioner and the
co-delinquent.
14. Having gone through the contentions urged in the
counter and the judgments relied on by the learned Standing
Counsel for the respondents-Bank, this Court is of the
considered view that this case is not of exceptional in nature
to grant the main relief by way of an interim order. Such an
order could have been granted by this Court only if by not
granting the said order, the main relief sought in the writ
petition would itself become infructuous. In the instant case,
if the petitioner succeeds in the writ petition, he will get all the
benefits.
15. In view of what all stated hereinabove, the interim
order dated 09-7-2015 in W.P.M.P.No.24057 of 2015 in
W.P.No.18608 of 2015 passed by this Court is vacated.
The contempt case is, therefore, closed. The writ petition be
posted before the regular Bench.
___________________
R.KANTHA RAO, J.
06th January, 2016.