Gujarat High Court
Govindbhai vs Regional on 6 February, 2001
Author: M.R. Shah
Bench: M.R. Shah
SCA/1759/2002 14/ 14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1759 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH -sd ========================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ========================================= GOVINDBHAI M PATEL - Petitioner(s) Versus REGIONAL AUTHORITY & 2 - Respondent(s) ========================================= Appearance : MR HARDIK C RAWAL for Petitioner(s) : 1,MRS MH RAWAL for Petitioner(s) : 1, MR.VARUN K.PATEL for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 3, RULE NOT RECD BACK for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/02/2012 ORAL JUDGMENT
1.0. By way this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order passed by respondent no.1 dated 6.2.2001 as well as order passed by respondent no.2 dated 21.12.2001. It is also further prayed for an appropriate writ, direction and / or order directing the respondent bank to accept his voluntary retirement application dated 25.1.2001.
2.0. It is to be noted that as such during the pendency of the present proceedings, the petitioner has already attained the age of superannuation and therefore, the prayer in terms of para 14(b) directing the bank to accept his voluntary retirement application dated 25.1.2001 does not survive. Therefore, this Court is required to consider the present petition for the relief in terms of para 14
(a).
3.0. The facts leading to the present Special Civil Application in nutshell are as under:
3. That at the relevant time the petitioner was serving as Branch Manager at Nandasan Branch of Dena Bank. By charge sheet dated 14.2.2000 disciplinary proceedings were initiated against him for the following charges.
(1). While working as Branch Manager, at our Nandasan Branch you have sanctioned term loan for purchase of Tractor and Trailer aggregating Rs. 2.30 lacs on 13.3.1997 in the joint name of Patel Shambhubhai Mafatlal and Patel Hareshbhai Shambhubhai, resident of village Mokasan, Tal: Kadi.
At the time of execution of Bank's security documents for the said advance on 15.3.1997, you have knowingly allowed to impersonate the signature of Shri Hareshbhai Shambhubhai Patel in your presence on such documents. You have also knowingly allowed to impersonate the signature of Shri Hareshbhai Shambhubhai Patel on Bank's loan application forms, Annexures and other papers for creation of charge on land for the said advance and such papers / documents are not signed by Shri Hareshbhai Shambhubhai Patel-one of the joint borrower for the said tractor and trailer loan.
(2). While working as Branch Manager at our Kadi branch, on 30.8.1997 you have sanctioned a loan of Rs.4.30 lacs exceeding your discretionary lending power for purchase of Ashok layland Truck, a Heavy Motor Vehicle and disbursed the said advance on 1.9.1997 to Shri Patel Jagjivanbhai Babaldad. Further on 13.7.1998 you have sanctioned / disburshed loan of Rs.2.44 lacs to the same borrower i.e. Shri Patel Jagjivanbhai Babaldas for purchase of Swaraj Tractor exceeding your discretionary lending power.
(3).
While working as Branch Manager at our Kadi branch, on 22.11.1995, you have sanctioned / disbursed term loan for purchase of tractor to Shri Bhagabhai Ishwarbhai Patel for Rs.1.50 lacs and again on 1.9.1998 you have sanctioned /disbursed Term Loan for Rs. 4.50 lacs to the same borrower i.e. Shri Bhagabhai Ishwarbhai Patel for installation of pumpset pipeline exceeding your discretionary lending power.
3.1. It was alleged against the petitioner that if the aforesaid charges proved they constitute misconduct under the provision of DBOE (conduct) Regulation 1976 under para 3(1), (3) to be read with para 24 and punishable under DBOE (Disciplinary & App) Regulation, 1976. That the petitioner submitted a detailed reply to the aforesaid charge sheet dated 14.2.2000 by reply dated 25.2.2000 denying the allegation in the said charge sheet. With respect to the charge no.1 (which is held to be proved against the applicant by the inquiry officer), it was specifically replied as under:
1. It is not true that I have knowingly allowed to impersonate the signature of Shri Hareshbhai Shambhubhai Patel on Bank's loan papers/ documents and the said loan papers/ documents are not signed by Shri H.S. Patel, one of the joint borrower of the said tractor and trailer loan case. In fact, I have taken full precaution to avoid the same as under, as per prevailing bank norms.
a. I had obtained signatures of both applicants in presence of two sureties who were knowing both of them personally and letter from those sureties was obtained to that effect and kept on branch's record.
b. I have created charge on agricultural land of both the applicants with the consent on 13.3.1997 and after two days i.e. on 15.3.1997 disbursement was made. As per Revenue Department of State Government guidelines, after making any change/ entry in Namuna No. 6 of land records notice called 135(d) is to be served to owner of the said land to raise objection, if any, within one month from the relevant date and if no objection is being raised by the concerned land owner, it is presumed that they have no objection in this regard. Shri H.S. Patel had not raised any such objection at that time.
c. Please note that bot the applicants are father and son in relation and when they came together to sign the loan papers/ documents. I had no reason to doubt about integrity of father and/ or son. Moreover, land which is in the name of Shri H.S. Patel was originally owned by his father Shri S.M. Patel, which was inhertied by him. The said land was cultivated by his father which is shown in Namuna No. 7/12.
3.2. That thereafter, the Inquiry Officer was appointed and even the petitioner submitted the written arguments on 3.11.2000. That thereafter, the Inquiry Officer submitted its report dated 25.11.2000 and held that the charge nos. 2 and 3 are not proved and so far as charge no.1 is concerned, which was alleged to be proved, the Inquiry Officer submitted as under:
Charge No.1:- I have gone into the details of inquiry proceedings held on various dates at Palanpur and also verified the documents put before me and also heard and verified the statement given by witnesses from both the sides.
While presenting the case PO produced ME-1 to ME- 14 in support of his case.
PO argued and presented as under:
(1). Signature done by Mr. H.S. Patel on loan application and other Bank documents, 'Differs' than that of the signature done by Mr. H.S. Patel on the statement given by him at his residence in Ahmedabad in presence of witnesses which includes DRM of RO.
(2). Management witness Mr. B.M. Purohit has also confirmed during inquiry proceedings that the signature is not done by Mr. H.S. Patel at the time of availing / disbursement of loan as per the statement given by him at his residence in Ahmedabad in his presence.
While presenting the case CSO put as under:
(1). The methodology applied to identify Mr. H.S. Patel is not proper/baseless.
(2). Show cause notice issued to him by the management shows that the signature of Mr. H.S. Patel is done by Mr. S.M. Patel.
(3). CSO had taken letter of introduction from the independent persons who were knowing Mr. H.S. Patel but was missing from the file.
Our views :
(1) The arguments and proof but before us is not tanable and acceptable and on verifying the documents put up by the PO, it becomes clear that the signature of Mr. H.S. Patel is impersonated and differs that of the original documents.
(2). Secondly the statement signed by Mr. H.S. Patel at his residence in Ahmedabad was on the ground of his complaint.
(3). Mr. M. R. Patel, DW-1 has not categorically denied of impersonification of signature during the inquiry.
However, PO has failed to prove that the signature is impersonated knowingly.
Summarizing the above it is proved that the signature of Mr. H.S. Patel is impersonated.
3.3. That having so observed that the presenting officer has failed to prove that the signature of Mr. H.S. Patel was impersonated by the petitioner knowingly, the Inquiry Officer held that charge no.1 is proved. That thereafter, the petitioner was served with the inquiry report and the petitioner submitted the comments / observations against the finding of the inquiry officer, by communication dated 26.12.2000. That thereafter, the disciplinary authority by impugned order dated 6.2.2001 passed an order of reverting the petitioner from MMG Scale-II to JMG Scale -I, his basic shall be first stage of JMG Scale -I, i.e. Rs.4250/-. At this stage, it is required to be noted that in the meantime and before the aforesaid order dated 6.2.2001 was passed by the disciplinary authority, the petitioner tendered voluntary resignation, which was not accepted and the impugned order dated 6.2.2001 came to be passed. That being aggrieved and dissatisfied with the order passed by the discretionary authority dated 6.2.2001 reverting the petitioner, the petitioner preferred appeal before the Appellate Authority Bank 21.3.2001 and one another statutory appeal was submitted on 14.7.2001. That thereafter, the Appellate Authority has dismissed the said appeal confirming the order passed by the disciplinary authority, vide impugned order dated 21.12.2001. Being aggrieved and dissatisfied with the aforesaid two orders passed by the disciplinary authority as well as appellate authority reverting the petitioner from MMG Scale-II to JMG Scale -I, his basic shall be first stage of JMG Scale -I, i.e. Rs.4250/-, the petitioner has preferred the present petition under Article 226 of the Constitution of India.
4.0. Shri Hardik Raval, learned advocate for the petitioner has vehemently submitted that as such Inquiry Officer has materially erred in holding that the charge no.1 is proved. It is further submitted that though the inquiry officer has specifically held and observed that the presenting officer has failed to prove that signature of Shri H.S. Patel impersonated knowingly still the Inquiry Officer has held that the charge no.1 is proved that the signature of Shri H.S. Patel was impersonated.
4.1. It is further submitted by Shri Raval, learned advocate for the petitioner that even the finding of the inquiry officer that the signature of Shri H.S. Patel was impersonated is based on no evidence. It is submitted that neither said Shri H.S. Patel was examined nor even the signature on the original loan paper as well as his signature on the other documents was even sent to the Handwriting Expert. It is submitted that solely relying upon the statement of Shri H.S. Patel which was given by him at his residence in Ahmedabad, it is held that the signature of Shri H.S. Patel was impersonated. It is submitted that even witnesses including DRM of RO in whose presence Shri H.S. Patel made a statement was also not examined by the management. It is submitted that so called statement of Shri H.S. Patel and without giving any opportunity to the petitioner to cross examine the said Shri H.S. Patel, the Inquiry Officer has held the signature of Shri H.S. Patel on the loan application and other bank documents then that of the signature done by Shri H.S. Patel on the statement given by him at his residence in Ahmedabad differs .
4.2. It is further submitted by Shri Raval, learned advocate for the petitioner that as such all due care was taken by the petitioner at the time of giving advance for purchase of Tractor in favour of one Shambhubhai Mafatlal Patel and Hareshbhai Shambhubhai Patel and not only the Tractor and Trailer for which the loan was given the same was taken as a security even the valuable lands of the aforesaid two persons who were father and son were mortgaged and charge was created on them and same was also mutated in the revenue record. It is submitted that only thereafter when the aforesaid two persons did not make the payment of the loan amount, the Tractor was seized and sold in auction only thereafter the said Shri H.S. Patel made a complaint that the signature on the original document of loan application etc is not made by him and somebody has impersonated. It is submitted that even thereafter, after the some amount was realized by selling the Tractor and Trailer in auction the Bank had settled the amount under one time settlement and released the security as well as charge over the land which was taken on mortgage and even thereafter No Due Certificate has been issued by the Bank. Therefore, it is submitted that when the finding given by the Inquiry Officer was based on no evidence and / or relying upon the so called statement of Shri H.S. Patel made at his residence in presence of DRM of RO and without giving any opportunity to the petitioner to cross examine the said Shri H.S. Patel, the said finding is absolutely illegal, perverse and same is in breach of principles of natural justice, which cannot be sustained. Therefore, it is submitted that the finding given by the Inquiry Officer / Disciplinary Authority that the petitioner has committed misconduct of lack of devotion, diligence, integrity and honesty in discharging duties and/ or in violation of Bank Rules, Guidelines procedure involving or likely to involve the bank into financial risk/ loss and / or conduct committing act/ prejudicial to the interest of the bank or gross negligence involving or likely to involve banks to substantial financial risk / loss and / or act unbeocming of a Bank officer is illegal, perverse and contrary to the evidence on record and/ or is based on no evidence, which deserves to be quashed and set aside and consequently the impugned order passed by the Disciplinary Authority reverting the petitioner and order confirmed by the Appellate Authority deserves to be quashed and set aside which would have a financial implication upon the petitioner to the extent of Rs.9700/- per month.
5.0. Petition is opposed by Shri Varun K. Patel, learned advocate for the respondent Bank. It is submitted that because of negligence on the part of the petitioner, the bank had suffered a loss and even after the loan was advanced by the petitioner, the original loanee failed and/ or neglected to repay the amount and when it was found from the statement of Shri H.S. Patel one of the loanee that the signature on the original loan application and other documents was not his signature and when the same was confirmed and/ or proved by his own statement made at his residence made before DRM of RO, it cannot be said that the disciplinary authority has committed any error and / or illegality in reverting the petitioner. It is submitted that the inquiry officer has given the report and thereafter disciplinary authority has passed impugned order after giving an opportunity to the delinquent and therefore, the same is not required to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India, more particularly when the petitioner has failed to point out any procedural irregularity. Therefore, it is requested to dismiss the present Special Civil Application.
6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner was charge sheeted for three charges, however the Inquiry Officer held charge no.1 only proved against the petitioner and the Inquiry Officer in his inquiry report held that charge nos.2 and 3 are not proved. So far as charge no.1 is concerned, it is submitted that while working as Branch Manager, at Nandasan Branch petitioner has sanctioned term loan for purchase of Tractor and Trailer aggregating Rs. 2.30 lacs on 13.3.1997 in the joint name of Patel Shambhubhai Mafatlal and Patel Hareshbhai Shambhubhai, resident of village Mokasan, Tal: Kadi. At the time of execution of Bank's security documents for the said advance on 15.3.1997, petitioner has knowingly allowed to impersonate the signature of Shri Hareshbhai Shambhubhai Patel in his presence on such documents. Petitioner has also knowingly allowed to impersonate the signature of Shri Hareshbhai Shambhubhai Patel on Bank's loan application forms, Annexures and other papers for creation of charge on land for the said advance and such papers / documents are not signed by Shri Hareshbhai Shambhubhai Patel-one of the joint borrower for the said tractor and trailer loan. From the Inquiry Report, it appears that as such the Inquiry Officer has failed to prove that the signature of Shri H.S. Patel was impersonated by the petitioner knowingly. It is also required to be noted at this stage that the Inquiry Officer has held charge no.1 proved against the applicant and has observed that it is proved that signature of Shri H.S. Patel is impersonated solely considering the signature of Shri H.S. Patel made on the statement given by him at his residence in Ahmedabad in presence of other witnesses which include DRM of RO and the Inquiry Officer himself compared the said signature then that of the signature done by Shri H.S. Patel on the loan application and other bank documents and has come to the conclusion that as the said signature differs, it is held by the Inquiry Officer that it is proved that the signature of Shri H.S. Patel is impersonated. The Inquiry Officer has also relied upon the statement of management witness Shri B.M. Purohit who made a statement that the statement was made by Shri H.S. Patel at his residence before him that the signature on the original loan application was not done by Shri H.S. Patel. It is required to be noted that except the above, there is no further evidence and / or material. It is also required to be noted that neither Shri H.S. Patel is examined nor opportunity was given to the petitioner to cross examine the said Shri H.S. Patel who made a grievance / complaint that the signature on the loan application and other bank documents was not made by him. It is also required to be noted that even the Inquiry Officer himself has compared the signature and no opportunity has been given to the petitioner to prove contrary and / or even the signature on the loan application and other bank documents as well as signature of Shri H.S. Patel on the statement given by him at his residence in Ahmedabad were not sent to the Handwriting Expert. Under the circumstance, as such there was no material and / or evidence against the petitioner to come to the conclusion that the petitioner allowed the impersonating signature of Shri H.S. Patel. As stated above, charge no.1 against the petitioner was that petitioner has knowingly allowed to impersonate the signature of Shri H.S. Patel and as stated above the Inquiry Officer himself in his report has specifically observed that the Presenting Officer has failed to prove that the signature of Shri H.S. Patel was impersonated by the petitioner knowingly. It is required to be noted at this stage that as such every due care was taken by the petitioner while sanctioning the loan. The loan of Rs. 4,50,000/- was advanced in favour of Shambhubhai Mafatlal and Patel Hareshbhai Shambhubhai (father and son) for purchase of Tractor and Trailer and at that time not only the Tractor and Trailer was taken as security even valuable land of loanee was mortgaged with the bank and the charge was created on the land, which was also mutated in the revenue record. At no point of time, said Shri H.S. Patel made any complaint with respect to his signature on the loan application and other bank documents. Only when subsequently the aforesaid two borrowers neglected to make the payment of loan amount and the Tractor and Trailer was seized and auctioned and when balance amount was sought to be recovered at that stage the aforesaid Shri H.S. Patel made a complaint for the first time that the signature on the loan application and other bank document is not that of him.
7.0. It is also required to be noted at this stage that as such there was no loss caused to the bank at all as not only Tractor and Trailer was sold in auction and the amount was realized and even thereafter the bank itself settled the account with the original borrowers under one time settlement and even No Due Certificate was issued by the Bank. Under the circumstance, it cannot be said that the petitioner has committed any misconduct for which such harsh punishment of reversion and causing economic loss to the petitioner to the extent of approximately Rs. 9700/- per month was required. As statedabove, as such there was no material and / or evidence against the petitioner and even the finding of the Inquiry Officer is based on no evidence. Under the circumstance, impugned order passed by the disciplinary authority and confirmed by the appellate authority of the bank.
8.0. In view of the above and for the reasons stated above, petition succeed and the impugned order passed by respondent no.1 dated 6.2.2001 as well as order passed by respondent no.2 dated 21.12.2001 are hereby quashed and set aside. In view of quashing and setting aside the impugned orders, whatever amount is due and payable to the petitioner shall be paid to the petitioner within a period of four months, for which necessary calculation shall be made within a period of three months and payment shall be made to the petitioner within a period of one month thereafter, failing which, it shall carry interest at the rate of 9% p.a. Rule is made absolute to the aforesaid extent. No costs.
sd/-
(M.R.SHAH, J.) kaushik