IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9563 of 1999 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================
========================================================= SURYANKANT L PATEL Versus UCO BANK AND ANOTHER ========================================================= Appearance :
MR PC KAVINA for Petitioner(s) : 1, MR PRANAV G DESAI for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date :30/04/2012 CAV JUDGMENT The present writ petition under Article 226 of the Constitution was directed against the order dated 30.03.1999 passed by respondent No.1 disciplinary authority dismissing the petitioner from service pursuant to a departmental inquiry held against him. The petitioner challenged also the order dated 24.06.1999 of the appellate authority passed in the departmental appeal, and further prayed for relief of reinstatement with full back wages.
2.0 The relevant facts of the case could be condensed as under.
2.1 The petitioner, serving as a peon at Vallabh Vidyanagar Branch of respondent No.1 bank, was served with a charge sheet dated 10.07.1998. The charges levelled against him were that he submitted to his employer bank for reimbursement on the footing that he and his son had taken treatment in the clinic of one Dr. Divakar J. Trivedi at Dharmaj as indoor patients. Such bills were submitted eventhough either of them were not admitted as indoor patients and that clinic had no facility for indoor admission. He was thus charged for putting up a wrong claim for reimbursement to get it sanctioned by misrepresentation and/or suppression of facts in order to derive pecuniary benefit and thereby acting prejudicially to the interests of the bank resulting into loss to the bank. He was given copy of the chargesheet and also its copy translated in Gujarati.
2.2 The petitioner’s reply was found not satisfactory. Therefore, a regular departmental inquiry was conducted. In the inquiry, on behalf of the management, three witnesses namely Mr. B.B. Tadvi, Officer attached to Regional Office, Vadodara (MW-1), Mr. R.V. Vaidya, the then Sr. Manager of Vallabh Vidyanagar Branch (MW-2) and Dr. Divakar J. Trivedi, Dharmaj (MW- 3), were examined. Documentary evidences were produced. The copies thereof were made available to the delinquent. The inquiry officer in his report dated 04.03.1999 found that both the charges against the petitioner were proved. The disciplinary authority considered the inquiry report and agreed with the findings of the inquiry officer. It passed order of penalty dated 30.03.1999 dismissing the petitioner from service.
2.3 The petitioner thereafter availed remedy of the departmental appeal.
The appellate authority by order dated 24.06.1999, converted the punishment from dismissal into removal from service with superannuation benefits and without disqualification from future employment. Against that order, the petitioner made representation dated 14.07.1999 and 23.07.1999 before the Chairman & Managing Director of the bank. There was no response. Thereafter, the petitioner filed the present petition.
3.0 Ms. Manisha Narsingani, learned advocate for Mr. P.C.Kavina learned Senior Counsel for the petitioner and learned advocate Mr. Pranav G. Desai for the respondent were heard at length.
4.0 Learned advocate for the petitioner submitted that the factum of illness of the petitioner and his son was not disputed, nor was there any dispute about their having taken treatment from Dr. Trivedi. The bills were issued by that Doctor himself, therefore, according to the learned advocate, the reimbursement was properly claimed. It was submitted that it could not be said that there was any intention on part of the delinquent to derive undue benefit. It was further submitted that when the Doctor himself had admitted his mistake for issuing the bills, no guilt or misconduct could be ascribed to the petitioner. She submitted that except the bills themselves, there was no other evidence to sustain the charge against the petitioner and when those bills were in respect of the medical treatment actually taken, the punishment was unjustified. Learned advocate lastly contended that in any case, the penalty was very harsh and deserved to be set aside by this Court.
4.1 On the other hand, learned advocate for the respondent relied on the averments in the affidavit-in-reply filed on behalf of the bank, and submitted that the charges against the petitioner were of defrauding the bank by presenting the medical bills for sanction on a false premise. He submitted that neither of the two was ever admitted as an indoor patient in the hospital of Dr. Trivedi. It was submitted that an employee would be entitled to get reimbursement for hospitalization expenses provided that the hospital had facility of indoor patients. When Dr. Trivedi himself had admitted bills were issued by mistake and tendered apology, and when indisputably his clinic had no indoor treatment facility, the charges against the delinquent held good. They were duly proved in the departmental inquiry. Learned advocate submitted that the punishment finally imposed on the petitioner was that of his removal from service without any loss of retirement benefits instead of dismissal. He submitted that in past also, the petitioner was punished for misconduct.
4.2 Considered the facts of the case, the contents of the inquiry report and in that context the submission canvassed by the respective learned advocates.
5. Precisely stated, the petitioner-delinquent faced the following charges in the departmental inquiry. Charge No.1 was levelled as under.
“You have submitted medical bills amounting to Rs.4185/- under cover of your letter dtd 11.04.1998 to Manager of our Vallabh Vidyanagar branch for its reimbursement. The medical bill submitted by you is for the treatment of your dependent son, Shri Urmil S. Patel. In your letter dtd 11.04.1998 addressed to our Vallabh Vidyanagar branch, you have stated that your son was suffering from Falciperrum Maleria fever and was admitted in the hospital. In support of your claim, you have submitted bills/stamp receipt dtd 10.04.1998 for Rs.4185/- of Dr. Diwakar J. Trivedi M.B.B.S. of Dharmaj. You have also submitted admission and dis-charge certificate dtd 10.04.1998 received from Dr. Diwakar J. Trivedi. In fact, the clinic of Dr.Diwakar J. Trivedi at Dharmaj do as not have any facility to admit indoor patient. You have wrongfully manage to obtain bill/stamp receipt for Rs.4185/- dtd 10.04.1998 and also admission and discharge certificate dtd 10.04.1998 from Dr.Diwakar J. Trivedi in connection with medical treatment of your son, Shri Urmil S. Patel without admitting him in the hospital. Thus, you have misled the bank and tried to put-up a falls claim with a view to get reimbursement there of on totally falls ground and you have thus attempted to defraud the bank by obtaining the sanction by misrepresentation or suppression of material facts to derive pecuniary benefit for yourself. ”
Similarly, Charge No.2 was as extracted below.
“You have submitted medical bills amounting to Rs.8081.75 under cover of your letter dtd 11.04.1998 to Manager of our Vallabh Vidyanagar branch for reimbursement of hospital charges for your own medical treatment. In support of your claim, you have submitted bill/stamp receipt for Rs.7210/- of Dr. Diwakar J. Trivedi M.B.B.S. of Dharmaj. You have also submitted along with you aforesaid letter, admission and discharge certificate dtd 10.04.1998 issued by Dr. Diwakar J. Trivedi for your admission and discharge from his hospital. In fact, the clinic of Dr. Diwakar J. Trivedi at Dharmaj does not have facility of admitting indoor patients. You have wrongfully managed to obtain bill/stamp receipt dtd 10.04.1998 for Rs.7210/- and admission and discharge certificate dtd 10.04.1998 from Dr. Diwakar J. Trivedi without your being admitted in his hospital. Thus you misled the bank and tried to put up falls claim with a view to get reimbursement thereof on totally falls ground and thus you have attempted to defraud the bank by obtaining the sanction by misrepresentation or suppression of material facts to derive pecuniary benefit for yourself.”
5.1 It was alleged that the allegations constituted gross misconduct involving moral turpitude by doing an act prejudicial to the interest of the bank or negligence involving or likely to involve serious loss for the bank.
5.2 In the inquiry, the management examined three witnesses namely Mr.
B.B.Tadvi, officer attached with regional office, Vadodara (MW-1), Mr. P.P.Vaidya, the then Senior Manager of Vallabh Vidynagar Branch (MW-2) and Dr. Diwakar Trivedi of Dharmaj (MW-3), who had issued the medical bills. The documents on record of the inquiry officer included two certificates both dated 10.04.1998 issued by Dr. Trivedi. The first certificate was that the delinquent’s son was treated as indoor patient in his clinic from 09.03.1998 to 15.03.1998. As per the second certificate, delinquent himself had taken treatment for six days from 14.03.1998 to 19.03.1998, for two days from 21.03.1998 to 22.03.1998, for three days from 24.03.1998 to 26.03.1998 and for further five days from 28.03.1998 to 01.04.1998. These admission/discharge certificates as well as the bills/receipts for treatment were under the signature of the doctor concerned.
5.3 The inqiry officer had before him the evidence of Mr. Tadvi (MW-1), who personally visited Dharmaj and contacted Dr.Diwakar Trivedi. He was deputed by the bank for the purpose of investigation. His as well as Mr. Vaidya’s (MW-2) evidence disclosed that there was no facility for admitting indoor patients in the hospital of Dr. Trivedi, and that neither the delinquent nor his son were admitted as indoor patients. The evidence of showed that Dr. Trivedi addressed a letter dated 17.04.1998 in which he had admitted that the subject matter bills were given by mistake. The contents of the aforesaid letter is reproduced hereinbelow.
“Regarding to my bills dated 10/4/98 for Rs.7210/- and Rs.4185/- issued by me to Mr. S. L. Patel for his treatment and his son's treatment. In this regard, as per your office inquiry, I have to inform you that subject bills are given by mistake. I apologize for that, I assure you, Sir, that in future I will not issue such medical bills as a doctor, I am again extremely sorry for that. I request you to cancel the subject bills given to me.”
5.4 In the proceedings of the inquiry, Dr. Trivedi was shown and confronted with the above letter. He was also shown the other documents including the certificates as well as the bills in question. He admitted to have written that letter and admitted its contents as well. The other evidence before the inquiry officer was in form of another letter dated 05.01.1998 addressed by Dr. Trivedi to the Senior Manager, “UCO Bank”, Vallabh Vidyanagar Branch, further admitting that he did not have facility to treat indoor patients nor he was attached to any polyclinic where his regular patients could be admitted under his treatment. Delving little deep in analysing the evidence before the inquiry officer, in course of recording the evidence on 25.01.1999, the doctor stated that during the OPD he used to keep some patients under observation for I.V. drip treatment. In that context he was specifically asked whether he still confirmed the contents of his letter dated 17.04.1998. The doctor reconfirmed the contents of his letter dated 17.04.1998 and reiterated that there was no indoor admission facility. He was thus unequivocal in admitting that the bills for indoor treatment were issued by mistake. From doctor’s admission, it was further brought out that he had no license for indoor treatment, nor had he applied for any such license/permission from Govt. Health Department or Panchayat for starting indoor treatment facility.
5.5 Learned advocate for the petitioner struggled in vain to submit that as the medical treatment was actually taken and the doctor admitted his mistake, it became a case of ‘no evidence’ due to which the delinquent ought to have been exonerated. The charge levelled was not that the delinquent produced medical bills in respect of the treatment not taken. The charge was that the medical expenses were claimed by presenting the bills in question by showing that they had got themselves admitted and received treatment as indoor patients in the clinic. On such factual projection, the medical expenses were claimed. The charge that he produced the bills by misrepresentation to derive monitory benefits and thereby acted prejudicial to the interest of the Bank was thus rightly held established by the Inquiry Officer. The contention raised by the learned advocate for the petitioner that since the Doctor had admitted his mistake, the delinquent could not be treated as guilty, was not liable to be countenanced in the facts of the case inasmuch as even if bills were issued under a mistake by the Doctor, the act on the part of the delinquent to submit them for reimbursement was a conscious act. In the facts of the case, the petitioner could not disown the knowledge that the bills were wrong and he would only misrepresent the facts of treatment for getting reimbursement. As the treatment was not available in the clinic, a reasonable inference was that the delinquent consciously put up the bills for payment in order to get undue pecuniary benefits. The findings and conclusions reached by the inquiry officer were supported legally admissible evidences sufficient to prove the charges. The case, therefore, could hardly be characterized as on of ‘no evidence’, but was one of sufficient and surer evidence.
5.6 On the basis of relevant material and the requisite evidence on record, the inquiry officer arrived at his findings regarding proof of the charges. It could be concluded that the wrong bills were obtained by the delinquent and presented for payment. They were in respect of indoor treatment for which there was no facility in the clinic. The findings recorded by the inquiry officer were proper being based on relevant evidence before him and they were the findings of fact.
6.0 The Supreme Court in Cholam Roadways Ltd. vs. G. Thirungnanasambandam [(2005) 3 SCC 241 reiterated the principle that in a domestic inquiry rules of evidence does not apply stricto sensu. The standard of proof required in a departmental inquiry is that of preponderance of probabilities and not the proof beyond reasonable doubt. In Union of India vs. Sardarbahadur [(1972) 4 SCC 618], it was observed by the Supreme Court that if the inquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. It was also observed that a findings cannot be characterized as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts. The Apex Court observed in Government of Andhrapradesh vs. Mohd. Nasrullahkhan [(2006) 2 SCC 378] that the jurisdiction of High Court in considering the legality of the findings arrived at in the domestic inquiry, is circumscribed and confined to correct errors of law or procedural error, if any resulting in manifest miscarriage of justice or violation of principles of natural justice. In State Bank of India and others vs. Ramesh Dinkar Punde [(2006) 7 SCC 212], and also in Bongaigaon Refinery and P. C. Ltd. vs. Girish Chandra Sarmah [(2007) 7 SCC 206], it was observed by the Supreme Court that it is not permissible for the High Court to reappreciate the evidence which has been considered by the Inquiry Officer, a disciplinary authority and the appellant authority.
6.1 The parameters for judicial review over the findings recorded in a domestic or departmental inquiry are thus well defined in law. The High Court is not supposed to act as an appellate authority. Judicial review in respect of findings arrived at by the domestic tribunal is not akin to appellate powers. Once the findings and conclusions by the inquiry officer are found to have been based on relevant material, and supported by some evidence, they would not receive microscopic consideration by the High Court on the grounds of adequacy or sufficiency of evidence or on the plea that the appreciation of evidence could have been different. That is not the domain of writ jurisdiction. Evidently, in the present case, the findings of the inquiry officer were based on sufficient and cogent evidence, from which it could be established that the delinquent had submitted the medical bills for reimbursement which were false.
6.2 As regards the punishment also, the disciplinary authority is the sole judge on the quantum of punishment unless ofcourse, the punishment imposed is found to be so disproportionately excessive so as to shock the judicial conscience. In M. P. State Agro Industries Development Corporation Limited and another vs. Jahan Khan [(2007) 10 SCC 88], the Supreme Court held that it is trite that the power to punish an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment was vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment was totally disproportionate to the proved misconduct of the employee. Even otherwise it is well settled that the High Court would not be justified in interfering with the quantum of penalty unless it is so grossly disproportionate as to shock the conscience of the Court.
7. The proof of charge against the delinquent recorded by the Inquiry Officer was supported by sufficient evidence. The inquiry was held in compliance of natural justice. No manifest illegality was demonstrated in the findings and conclusion recorded in the inquiry report. No intervention is warranted by this Court in writ jurisdiction.
8. In the instant case, the disciplinary authority had imposed the punishment of dismissal from service. In the departmental appeal, the appellate authority took into account the family circumstances of the delinquent and a lenient view was taken. In place of dismissal, the appellate authority imposed the penalty of removal from service without loss of retirement benefit without disqualification from future service. By no stretch of reasoning, the reduced penalty can be said to be disproportionate to the misconduct proved considering the nature of the charges.
9. There is another dimension of the matter. By filing Civil Application No.3088 of 2005, the petitioner stated that he had various loan accounts with the respondent Bank as he obtained advances from the Bank under Class-A category staff. As the petitioner was entitled to superannuation benefits after the reduction in his punishment to removal, he was asked to submit the necessary papers and that he had given no objection to adjust the dues payable towards the loan accounts from the amount of retirement benefits. He submitted that he had not been paid superannuation benefits pursuant to order dated 24.06.1999 by the appellate authority despite his representation. He prayed that the Bank may be directed not to charge the interest and the penal interest while adjusting various loans from the retirement dues.
9.1 In the affidavit-in-reply filed on behalf of the Bank in response to the aforesaid Civil Application No. 3089 of 2005, the prayer of the petitioner for not charging interest and penal interest was objected to making out following grounds.
“.... I say that the applicant has given undertaking to the effect that all his loans can be adjusted against payment of P.F. and gratuity to the applicant. I say that inspite of repeated requests made by the opponent, the applicant has not submitted his claim papers for payment of gratuity and P. F. I further say that as agreed upon and undertaken by the applicant, when his loan accounts become irregular, the opponent bank is entitled to recover the amount due and payable by him along with interest and penal interest. I crave leave to refer to and rely upon the terms and conditions agreed to and accepted by the applicant at the time of hearing. I say that inspite of repeated requests, the applicant has not submitted necessary documents and therefore, the opponent bank is unable to process the case of the applicant for payment of gratuity and other retirement benefits to the applicant. I enclose herewith copies of the correspondence addressed to the applicant by the opponent as well as the details of the loan account as Annexure-I.
9.2 The said Civil Application was disposed of by order dated 5th August 2005 whereby the Court directed the respondent Bank to release the superannuation benefits after adjusting the loan amount payable by the applicant. It was observed that question about penal interest shall be decided at the time of deciding the main matter and further observed that the withdrawal of amount shall be subject to the rights and contentions of both sides.
9.3 Thereafter, the petitioner filed another Civil Application No.1444 of 2006 for clarification of the order dated 05.08.2005 passed in the abovementioned Civil Application, contending inter alia that the applicant was entitled to interest on the amount of his superannuation benefits paid late. That Civil Application No.1444 of 2006 came to be disposed of by the Court by observing that it was an admitted fact that as per the calculation of the Bank, it had paid retiral dues to the applicant and further clarifying that the question about interest payable to the applicant, if any, as well as whether the Bank was entitled to charge penal interest or interest for the late payment of loan shall be decided at the time of deciding the main matter.
9.4 On the basis of above orders passed in the Civil Applications, at the time of hearing of present main petition, learned advocate for the petitioner submitted that the Bank may be directed to pay interest on the delayed payment of retirement benefits. It was submitted that on one hand the bank was charging penal interest and on the other hand it released the due retirement benefits only after the filing of Civil Application praying in that regard.
10. As regards claim of interest by the petitioner on the ground that retirement amount was paid belatedly, it is to be observed that the Bank was within its right to insist for repayment of loans taken by the petitioner which were unpaid. Moreover the petitioner had permitted the Bank by giving an undertaking to the Bank that the Bank may recover the unpaid amount of loan from the amount payable towards superannuation benefits. It was, therefore, lawful and legitimate for the Bank to enforce its rights. The Bank could not be asked that no interest be charged by it. If such interest on unpaid loans was payable in accordance with the rules, charging such interest was only lawful. The same was being recovered from/adjusted against the retirement dues payable to the petitioner who himself had given an undertaking to this Court for adjusting the unpaid loan. It is also an uncontroverted case of the Bank that the petitioner did not execute necessary papers for release of his retirement benefits inspite of repeated requests from the Bank. In that view of the matter, the passage of time in release of retiral benefits to the petitioner could not be treated as deliberate, nor could it be said that it was a result of negligence or indolence on part of the Bank. The claim of the petitioner for payment of interest for the intervening period was not justified and could not be accepted. Significantly, in course of hearing of the petition, learned advocate for respondent Bank, after taking instructions from the Bank, stated that the Bank had not charged penal interest. In any view, therefore, the equities stand in balance. No ground exist on the basis of which the prayer of the petitioner for interest on the retirement benefits made by the petitioner could be granted.
11. In view of above discussion and reasons, no relief could be granted to the petitioner. The petition being meritless, it is dismissed without any order as to costs.
[N. V. ANJARIA, J.] [amit/devu]