rendezvous with destiny

Vol. 40 No. 6 Total 12 Pages BANGALORE Single Copy Rs. 3/- SEPTEMBER - 2021

A JUG FILLS DROP BY DROP

Editorial

years have passed since the tricolour washoisted in the flag stand of Red Fort,

signaling the end of years of colonial rule. CommonBond joins the nation in saluting the martyrsand freedom fighters who laid down their lives,sacrificing all material pleasures for themotherland. As we celebrate the momentousoccasion, we also need to introspect. There isno denying of the fact sweeping changes havetaken place between 1947 and 2021. Therehave been enormous strides in the developmentand absorption of modern technology. Thecountry has joined the exclusive space club withthe successful launching of its lunar missionChandrayan-I. A new middle class with significantspending power has emerged, coupled with thegradual urbanization of the landscape. There isstrong media, print, electronic, and social, withthe political space dominance by leaders from aless privileged background. It signals the end offeudal domination of the political space andensures the emergence of a political systemfree of so-called dynastic control. Theenthusiasm of the rulers and a section ofmillennials to make India a global superpowerare well appreciated. However, there areserious issues confronting our country 75 yearsafter our rendezvous with destiny on 15th August1947.

In his famous work “Autobiography of an Unknown

“Man is condemned to be free because once thrown into the world;he is responsible for everything he does” (Jean-Paul Sartre)

Indian”, Nirad C. Chaudhuri had penned thisunforgettable punch line - India had its politicalfreedom on 15th August, 1947. But the nationwas busy setting its foot on the red carpet ofindependence for a full one year by indulging in ahomicide involving Hindus, Muslims, and the Sikhs.The independence came with the bloodshed ofthe freedom fighters and the blood that flows inthe mindless genocide of 1946-47, leading tothe country’s partition. We all know the migrationof the population that followed. The genocidewas possible for profound mistrust that existsbetween the communities. But despite suchnegativity that engulfed our social fabric in thefinal years of colonial rule, the first challengewas to the doctrine of John Stuart Mill, whichsays that universal franchise can be given onlyafter the spread of education. But the independentnation took the momentous decision of having auniversal franchise to elect the politicalestablishment. The people had the authority toexercise their franchise at different turnpikesof the nation’s history by ousting the unpopularregime. India is amongst the few countries inthe world which survived 75 years down the linedespite all the fault lines for such existence ofpluralistic democracy based on adult franchise indirect contrast to the elitist philosophy of JohnStuart Mill.

Political freedom rests on equality of opportunities.

75

RENDEZVOUS WITH DESTINY

2 Common Bond, September -2021IN THE SKY THERE IS NO DISTINCTION OF EAST AND WEST

Freedom cannot be understood in the same spiritby people living in two virtual worlds, a separationaccentuated by growing inequalities. If the adventof a neo-middle class is the fallout of the so-called liberalization, the growing inequality inthe society may be its proverbial twin. Theskeleton of the illusory dream of economicprosperity that has been propagated with somuch fanfare is visible in the naked eye today.Unemployment is rising exponentially, the pursuitof having a healthy, secured life is limited to afew, opportunities for higher education is graduallydenied to underprivileged sections of the society,the inflationary trends continue unabated. Thesefactors have all contributed to an air ofinstability with the dressing of the salad beingcompleted with the all-pervasive covid pandemicand its consequential lockdown with regressiveimpact on the wheels of the economy. Thecitizenry has become restive.

The establishment tries to negotiate the crisisby indulging in further liberalization or, to put itbluntly, in desperate privatization. A Billproposing diluting government holding on publicsector general insurance companies has beenbulldozed in the parliament. Mega I.P.O. of L.I.C.is in the offing. The defence sector is also gettingprivatized at a breakneck speed. Inflation israising its ugly head fuelled by an irrationaldaily upward revision of petrol/diesel prices. Eventhe cost of L.P.G., no longer a luxury, is goingbeyond the reach of ordinary homemakers. Peopleare getting marginalized by the waves of so-called development. The government is poised todemolish the basic tenets of a welfare state,jeopardizing the very existence of man andnature. Fortunately, the voice of dissent andearly sign of resistance are discernible. Theyearlong protest action by the farmers againstthe controversial farm bills braving all theoppression of the state has added a new featherin the cap of the resistance movement.

Bankers themselves are on the street. Organizedprotests on the street and on social media by

the bankers under the leadership of AIBOC haveperhaps been instrumental in keeping the decisionto amend Bank Nationalisation Act in abeyanceas the assembly elections to the key state ofUttar Pradesh is a few months away. Let us notfeel complacent in our attitude and preparations.We have to understand clearly that thetraditional weapons of protest are waning outwith the progress of technology and may notwork as effectively as in earlier days. We haveto formulate innovative methods of protest. Itis indispensable to reach out to all sections ofour stakeholders to make the struggle successful.The social media campaign, which is a powerfultool today, has to reach to every single citizenby conscious and organized efforts. This is acolossal task. We have to acknowledge thatthe fight against privatization of public sectorbanks is, in effect, a battle for protecting thenational assets in national interest. To thatextent, it is a fight for keeping the country’seconomic sovereignty, which in itself guaranteespolitical freedom.

There is excess liquidity in the system due tothe pro-corporate policy of the government andtailor-made monetary policy being pursued bythe R.B.I. to sub serve the agenda of bigcorporates. Many credit facilities sanctioned bythe banking system have reached the stockexchanges and fuelled inflation. As discussed,this has contributed to growing social inequalities.Big corporates and, more particularly, the cronieshave taken advantage of lower interest ratesand favourable raw material prices. Manyindustries have been closed, and business hasshifted from small and marginal sectors to moreorganized corporates. Even the definition ofMSME has been changed to facilitate the sharks.The process may be irreversible.

The message of freedom is different for theblogger who was murdered from its implicationto a person who wants the freedom to choose hisprofession or who wishes to form a trade unionin his workplace to protect his interest. The

Common Bond, September -2021 3

THERE HAS TO BE EVIL SO THAT GOOD CAN PROVE ITS PURITY ABOVE IT

more violent and vitriolic the attack is,the moreintense the realization of the meaning of absolutefreedom will be. The dark cloud that is hoveringin the sky today has one silver lining. Themovement is seeing the worst form of attackthat is threatening its very existence.Observance of Independence Day has a moreprofound connotation today than hoisting ofnational flag rendering of the national anthemand spending a day of leisure.

We worry that this growing inequality will persisteven after the pandemic is over. Inequality isethically destructive. This has been coupled witha planned attack on all institutes of nationalimportance, including the iconic public sector thathas contributed immensely to the consolidation

of political democracy and economic independence.Possibly freedom implies that one has to movewith a positive notion with retaining whateverwe have earned and to expand the space ofretention. The road is strewn with thorns;however, we have to traverse along it with thesole objective of reaching our destination evenif we have to bleed. We cannot just abandon ourcherished ideals, belief, and commitment andcannot rest till the final goal is reached. This isprecisely how we will observe the 75th year ofour independence by making each moment countin our determined endeavour to fight for ourfundamental rights. This will be a befittingtribute to the freedom fighters and martyrswho gave us freedom from colonial rule.

Why we oppose privatisation?

We are sharing a story published in Mint which clearly depicts the inside story of private banks and how it couldbe disastrous for the national economy in particular and to the bank customers across the spectrum in general.

News #BankBachaoDeshBachao

Two years after Rana Kapoor’s exit, Yes Bankcontinues to grapple with the legacy of its founder—a plethora of loans given out in an alleged quid proquo where the bank bypassed institutional creditchecks.

Since founder Kapoor’s departure as managingdirector and chief executive of Yes Bank, several ofthese large exposures of the private sector lender havesoured. People directly aware of the matter said thechances of recovery in most cases are slim as a largeportion of collaterals such as land were grosslyinflated in value against the loans given.

According to the people cited above, most of thesered-flagged accounts are in the bank’s real estateloan portfolio. The loans were given to financeconstruction, but the value of the underlying

collateral, such as land, was grossly inflated.

The borrowers include the Wadhawan family-promoted Housing Development and InfrastructureLtd, which is also under investigation in the PMC Bankfraud case, where a similar modus operandi was usedto siphon off funds through bogus loans.

In another instance, the bank’s current managementclassified a `400 crore loan given to a prominentMumbai developer as fraud.

The issue was resolved after the bank agreed to takea haircut on the principal through a one-timesettlement. Another example is a `500 crore loan toOyster Buildwell, an Avantha group company, whichhad negligible capital and income at the time the loanwas sanctioned.

YES BANK GRAPPLES WITH LEGACY ISSUES OF DISGRACED FOUNDER

4 Common Bond, September -2021

OVERCOME ANGER BY LOVE, EVIL BY GOOD

Other controversial transactions include Yes Bank’salleged dealings with a well-known assetreconstruction company (ARC) promoted by the kinof a prominent industrialist, where close to 80% ofsuch bad loans were transferred to the ARC.According to a whistle-blower complaint, these badloans were indirectly funded by the bank throughnear-zero cost loans given to the above mentionedARC. Emails sent to Yes Bank with a detailed set ofqueries in this regard remained unanswered.

Analysts also questioned the continuing presence ofsome of Kapoor’s former aides in the bank.

In a recent note, independent analyst HemendraHazari wrote, “More alarming is the case of AshishAgarwal, chief risk officer (CRO) and also responsiblefor corporate loans for more than a decade (March2009 to May 2020), who appraised and approvedall the dubious corporate loans (including OysterBuildwell), which ultimately brought the bank to itsknees: he was rewarded by the board in January 2019for his “track record” and put forward as a possiblesuccessor to Rana Kapoor by elevating him to thepost of executive director.”

Another former Kapoor aide, Parag Gorakshakar,who was the chief risk officer for the real estate sector

and is currently the chief credit officer of Yes Bank,has been named in the FIR filed by the EnforcementDirectorate in the Mack Star Marketing case.

Yes Bank under Kapoor is alleged to have illegallysanctioned a loan of `202 crore to Mack StarMarketing, a joint venture of DE Shaw Group andpromoters of HDIL Group.

This joint venture was formed to develop a commercialcomplex called ‘Kaledonia’ at Mumbai’s Andherisuburbs. According to the FIR, the entire loansanctioned by Yes Bank was siphoned off to HDILgroup companies and used for repaying earlier loanstaken by HDIL from Yes Bank, which were on the vergeof turning bad.

DE Shaw Group holds 78.09% shares in Mack StarMarketing, and promoters of HDIL hold 21.91%shares. The ED FIR has named Gorakshakar, alongwith Kapoor and several other Yes Bank employees,for aiding the transaction.

Yes Bank’s gross NPA as a percentage of total assetsstood at 15.6% at the end of June quarter against17.3% a year ago. Of the total NPAs, corporate loansconstitute ` 25,561 crore or 27%.

CRISIS SPREAD TO UJJIVAN SMALL FINANCE BANK

Common Bond shares the organizational perceptionthat private sector banking will be ruinous for theIndian economy. In umpteen articles, editorials andshared news that we have published over the years,we have tried to emphasize how one after anotherprivate sector banks failed, putting its depositors indistress and finally forcing a public sector bank tobail it out, absorbing its negative net worth. The storyis the same ever since the beginning of the 20thcentury till today. Our readers will appreciate thatsuch systematic failure of private sector banks hasput the personal finance of its customers in absolutejittery and forced the public sector banks into troubleby compromising on their financials at the time oftakeover. The public sector banks have to providefor huge NPAs in the books of private sector entity

which it is forced to absorb along with related problemsof HR, system integration, etc.

We have shared the story of YES Bank as published inMint in the earlier article. Even before we brush up onthe issue for final printing, a report appeared aboutthe impending crisis in Ujjivan Small Finance Bank, amuch-touted poster boy of the new licensing policypursued by RBI. Let us first share the story andconclude with our observation.

“Deteriorating asset quality and the exodus of topexecutives were the twin concern for Ujjivan SmallFinance Bank (USFB). The fact was admitted by Mr.Samit Ghosh, its founder, a day after banks MD &CEO, Mr. Nitin Chugh’s exit. Mr. Ghosh, who is currently


THREE THINGS CANNOT BE LONG HIDDEN: THE SUN, THE MOON AND THE TRUTH

the non-executive director and chairman of UjjivanFinancial Services Limited (the holding company ofthe bank), has been drafted back on the bank boardas a non-executive non-independent director toaddress these concerns. He had vacated themanaging director and CEO post in 2019 onretirement, following which Chugh had assumedoffice.

The bank’s gross non-performing assets for thequarter ended June 2021 was 9.8 percent versus0.97 percent in the corresponding period of theprevious year. The bank reported a net loss of ` 233crore during the June quarter of 2020-21 against aprofit of ` 55 crore in the year-ago period. Even thepre-provisioning operating profits during the quarterat ` 163 crore were down 24 percent from theprevious year.

The bank’s management had attributed this mainlyto the second wave of the Covid pandemic and theconsequent restrictions and lockdowns in its keymarkets — Tamil Nadu, Karnataka, Kerala,Maharashtra and Bengal.

Recently, the bank’s chief financial officer UpmaGoel and directors Mona Kachhwaha, HarishDevarajan and Mahadev Lakhsminarayan resigned.

Clarifying to market analysts, Ghosh said Ujjivan hadtraditionally remained conservative on provisioningand upfront recognition of stressed assets. But thishas fluctuated in the last year — the provisioncoverage ratio fell from 82 percent in June 2020 to59 percent in December 2020 before improving to75 percent in June 2021.

He said while the timing of Chug’s resignation wasa “surprise,” the bank’s board which has now beenstrengthened, will undertake a “tough” review of

the loan book and begin the recovery process. Ghoshsaid he would also play a role in coordination betweenthe holding company and the bank on the reversemerger process.

A board meeting is expected on August 25 to decidethe future course of action. The board is likely toappoint an interim CEO. Ujjivan old-timer and thebank’s head of operations, Carol Furtado, could begiven the role till the bank finds a new incumbent.”

Surprisingly, the bank’s operating profit has tumbledby 24% on a Y-O-Y basis compared to the industrytrend. Public sector banks, despite their faulty designof mergers and covid induced market negativity, postedan impressive operating profit. The failure of USFB toearn an impressive operating profit implies that itscurrent outgo is not matched by current inflowindicating a deposit base packed with long-timeliabilities procured at a higher rate of interest notmatching with its asset base. Simply put, it implies theyhave mobilized deposits possibly at a higher rate ofinterest and tried to capture loan business by offeringthe same at a competitive rate, putting their net interestmargin at stress. Thus, private sector banking is allabout the initial glitter, aggressive market penetration,least concern for prudent risk management, and finallybursting into irreversible crisis jeopardizing its customersand the banking system, as mentioned earlier. It is arepetitive story, worse than the worst TV serial but stillbeing viewed assiduously by the crony capitalists andtheir political masters.

#BankBachaoDeshBachao

We are sharing another story published in Mint whichtells that even parliamentarians are not comfortablewith the grand design of the Finance Minister to kickstart the process of privatisation this year itself. Willgood sense return?

‘STRESS IN BANKING SECTOR SHOULD NOT BE ALIBI FOR PRIVATISATION’

The stress in the banking sector should not be analibi for privatising state-owned banks; instead, theyshould be empowered to deal with the presentchallenges, a parliamentary panel said in a reporttabled in Lok Sabha.

The standing committee on finance chaired byBharatiya Janata Party (BJP) leader Jayant Sinha saidin its report that the situation in the banking sectorwas no doubt grim, but the panel remained optimisticthat as most of the large legacy bad loans get resolved


BETTER THAN A HUNDRED YEARS OF IDLENESS IS ONE DAY SPENT IN DETERMINATION

either through bankruptcy resolution process oroutside it, the consequential recoveries will help thebanks to shore up their balance sheets.

It is necessary and prudent that these large legacynon-performing assets are segregated for resolution,and the balance sheet of banks sanitised, allowingthem to move ahead with their regular business, thereport said.

The committee recommended that the Reserve Bankof India—the regulator—and the government—theshareholder—should formulate coherent policyresponses that will enable and empower the banks.

“The committee would like to emphasize that thepresent crisis, which the committee believes istransient, should not become an alibi for privatizationof public sector banks,” the report said.

The suggestion comes at a time the government isworking on privatizing two state run banks.

The panel said, quoting information from the financeministry, that financial health of state-run banks hasimproved significantly from the end of FY18.

Gross non-performing assets have reduced from` 8.96 trillion in March 2018 to ` 5.77 trillion inDecember 2020, and a recovery of ` 2.74 trillion hasbeen made since March 2018 till December 2020.

The finance ministry also informed the panel thatoccurrence of fraud has declined sharply and assetquality has improved significantly.

As against two out of 21 state-run banks in profit inMarch 2018, 11 out of 12 state-run banks were inprofit in December 2020, the report said, quoting theministry.

59 dated 30th July, 2021: Circular on Dearness Allowance payable to Officers’ w.e.f. 01.08.2021.

60 dated 04th August, 2021: Circular on a clarion call to extend all out support to the strike called by JointForum of General Insurance Trade Unions on 04.08.2021.

61 dated 24th August, 2021: Text of the Letter No. AIBOC/2021/26 dated 23.08.2021 to MD & CEO, PNB onLong Pending Operational and HR Issues Raised by our Affiliate –AIPNBOA.

CIRCULARS

2021 LLR 474CALCUTTA HIGH COURT

Hon’ble Mr. Sabyasachi Bhattarcharyya, J.W.P.O. No. 280/2020, Dt/-4-12-2020

Palan Chandra NaskarVs.

Bank of Maharashtra and Others

JUDICIAL VERDICT

A.DISMISSAL – Petitioner was bank employee –Charge was misappropriation of money received fromcustomer but depositing in his account – After holdingenquiry, proving charge, his service was dismissed –He challenged order of disciplinary authority in appealbut failed – Then he challenged order of lowerauthorities by filling writ petition – Held, money

received from customer but not depositing in hisaccount is a grave and serious misconduct – He wasalso found guilty of not depositing title deeds, whiletaking loans, which was found a deliberate act onhis part – Employee has not made out a case ofvictimization or patent mala fides – Hence, nointerference is warranted.


YOU WILL NOT BE PUNISHED FOR YOUR ANGER, YOU WILL BE PUNISHED BY YOUR ANGER

B.MISCONDUCT – Scope of – Held, non-depositof money received from customer of bank by a bankemployee is a grave and serious misconduct – Non-obtaining title deeds of the property mortgagedwhile disbursing loan to customers is also grave andserious misconduct justifying punishment ofdismissal.

C.EVIDENCE – Scope of - Oral and documentary –Evidence of third person cannot be lent credence tooverride documentary evidence – Oral evidence couldat best be corroborative in nature – In absence ofplausible explanation by employee question ofcorroboration does not arise.

D.PAST RECORD – Petitioner – employee wasregular habitual defaulter in flouting of bank rules– Even at times he did not deposit title deeds whiledisbursing loans to customers – Such a conduct isgross negligence causing not only financial risks tothe bank but a bad name also.

E.ENQUIRY – When fair and proper – Complianceof provisions of Evidence Act not required strictly indisciplinary proceedings – Compliance of principlesof natural justice, equity and good conscience aresufficient – Petitioner was given due and properopportunity of hearing – His all contentions wereconsidered in reasoned order.

IMPORTANT POINTS

Money received from customer but not depositingin his account and non-depositing title deeds whiledisbursing loan against mortgage of property aregrave and serious misconducts justifying punishmentof dismissal of a bank employee.

In the absence of making out a case of victimizationor patent mala fides, interference by the court inthe punishment of dismissal from service is notcalled for.

Oral evidence of a third person cannot be lentcredence to override documentary evidence.

Oral evidence could at best be corroborative innature but in the absence of plausible explanationby the delinquent employee to the charges leveled

against him, question of corroboration does not arise.

Petitioner-employee was regular and habitual defaulterin flouting of bank rules which compel the Bank notonly to face financial risks but a bad name to the bankalso.

Compliance of principles of natural justice, equity andgood conscience are sufficient since strict complianceof provisions of Evidence Act not required in disciplinaryproceedings.

Principles of natural justice would stand applied whenthe delinquent employee has been given due and properopportunity of hearing and his all contentions wereconsidered in reasoned order.

It was sufficient compliance of principles of naturaljustice, equity and good conscience if the delinquentemployee was given due and proper opportunity ofhearing and his all contentions were considered inreasoned order

JUDGMENT

Sabyasachi Bhattacharyya, J – 1. The petitioner hasbeen working as a clerk with the respondent No. 1-bank, Sevoke Road Branch, Siliguri and was deputedat the deposit counter of the said branch during therelevant period. As per the petitioner’s version, therespondent No. 4 (Vikash Agarwal) approached thecounter on February 23, 2008 to deposit an amountof ` 8500/- and handed over the requisite pay-in-slipalong with the cash. The petitioner, after affixing thestamp “Received” on the said slip and signing thepetitioner’s name, noticed that there was no ‘scrollnumber’ on the pay-in-slip, allegedly required fordeposit of cash as per the norms of the bank. Thepetitioner retuned the voucher to the respondent No.4, along with the entire amount of money, andrequested respondent No. 4 to come back with thescroll number. Subsequently, respondent No, 4 did notreturn and left the bank, unnoticed by the petitioner.February 23, 2008 was a Saturday and, under thepressure of closing, the petitioner allegedly forgot theepisode and did not report such irregularity to anysuperior authority.

2 . O n F e b r u a r y 2 7 , 2 0 0 8 , r e s p o n d e n t N o . 4 c a m e t o


THE FOOL WHO KNOWS HE IS A FOOL IS MUCH WISER THAN THE FOOL WHO THINKS HE IS WISE

the bank and sought to withdraw ` 7000/-, whichtransaction was declined on the ground of‘insufficiency of balance’, consequent to whichrespondent No. 4 reported the matter to theauthorities, alleging that he had deposited ` 8500/-on February 23, 2008, which rendered the refusalinvalid. Vikash also produced the counter foil of thepay-in-slip.

On February 27, 2008. The Assistant GeneralManager and Regional Head, Kolkata Region issuedan office order of suspension against the petitionervide letter No. AX9/ST/07-08/125/2008.

3. However, according to the petitioner, therespondent No. 4 realized his error thereafter,returned to the Sevoke Road Branch of therespondent No. 1-bank and submitted a letteradmitting the actual circumstances. Vikash, allegedly,deposited the amount of ` 8500/- with the bank aswell. A copy of the said letter, dated March 27, 2008,is annexed at page – 49 of the writ petition.

4. On May 24, 2008, the respondent No. 3, that is,the Disciplinary Authority and Chief Manager,Regional Office, Kolkata issued a show-cause noticebearing Reference No. AX9/ST/BPS/2008, againstwhich the petitioner made a representation to theAssistant General Manager, Bank of Maharashtra,Regional Office on August 6, 2008, denying theallegations made in the show-cause notice.

On February 10, 2009, the respondent No. 3 issueda charge-sheet (Reference No. AX9/CM/DM/2009/1)against the petitioner, to which the petitioner used areply on April 23, 2009. On May 5, 2009, the petitionerallegedly sought permission from the Enquiry Officerto engage an advocate, to appear on his behalf inthe enquiry proceeding, but was refused the same.The enquiry proceeding, the minutes of which wererecorded, started on May 25, 2009 and on June 8,2009 the Presenting Officer produced documents onbehalf of the bank management to prove the chargesagainst the petitioner.

Evidence was adduced, both oral and documentary,on behalf of both sides and ultimately, on May 20,2010, the respondent No. 3 passed the final order(Reference No. AX9/ST/CM/DM/PCN/2010/3199),

inter alia dismissing the petitioner from his service,primarily on the ground of gross misconduct.

5. The petitioner preferred on July 16, 2010, beforethe Appellate Authority, an appeal against the finalorder. The petitioner alleges that no hearing was givento the petitioner in respect of such appeal. Thepetitioner moved a writ petition, bearing W.P. No.20536(W) of 2011, which was subsequentlywithdrawn with the leave to file afresh on the self-same cause of action. Thereafter, the petitioner filedW.P. No. 37926(W) of 2013. A Co-ordinate Bench setaside the order of the Appellate Authority anddirected the appeal to be heard afresh and to bedisposed of by a reasoned order within four monthsfrom that date.

6. Thereafter, hearing of the appeal was conductedby the Authorities on March 21, 2015 and, vide Orderdated March 31, 2015, the Appellate Authority upheldthe order of the Disciplinary Authority, that is, therespondent No. 3.

The order dated May 20, 2020 as well as the appellateorder dated March 31, 2015 have been challengedin the present writ petition.

7. Learned counsel for the petitioner submits thatrelevant documents, including Exhibit – ME 13 (theletter allegedly submitted by the respondent No. 4)and the oral evidence of D.W. 1, and employee of thebank itself who was on duty near the counter of thepetitioner of the relevant date. It is argued that thesole witness of the bank (M.W. 1) admitted that therespondent No. 5 accompanied Vikash when ME 13was submitted by the latter. The respondent No. 5(D.W. 2), in his evidence, corroborated the version ofthe petitioner. These factors, according to thepetitioner, were not considered at all in holding thepetitioner guilty of an offence not committed by him.

That apart, in spite of the fact that the allegationsagainst the petitioner were ‘disproved’, as envisagedin the India Evidence Act, 1872, the authoritiesproceeded on the premise that those were, at best,‘not proved’.

Moreover, it is argued that the impugned orders are‘non-speaking’ in nature and, hence, ought to be set


EVERY HUMAN BEING IS THE AUTHOR OF HIS OWN HEALTH OR DISEASE

aside on that score as well.

While controverting such arguments, learned counselfor the respondent-authorities argues that thepetitioner has failed to prove any mala fides orarbitrariness on the part of the respondents. It waswell within the bank’s powers to take disciplinaryaction against the petitioner.

It is further argued that the Disciplinary Authority tookinto consideration all the contentions raised by thepetitioner and came to a conclusion upon taking intoaccount all relevant circumstances.

8. It is submitted that the petitioner has been ahabitual defaulter, not merely in respect of allegationsas to the misappropriation of ` 8500/- but also inrespect of taking loans and delaying the repaymentof those on several previous occasions. In fact,contrary to the rules of the bank, the petitioner failedto deposit title deeds regarding his property againstloan advanced to the petitioner by the bank.

9. It is argued that the entire conduct of the petitionerwas considered by the authorities and detailed reasonsprovided in the orders impugned, before dismissingthe petitioner from service. Placing several portionsof the final order dated May 20, 2010, as well as thedecision of the Appellate Authority, it is submitted thatnone of the orders was nonspeaking; rather, it isreflected from the impugned orders that all theprevious conducts of the petitioner were consideredwhile passing the orders.

It is further submitted that the petitioner failed to justifyhis action in granting receipt for the amount of ` 8500/- to the respondent No. 4 while failing to deposit suchamount in the accounts of the respondent No. 4.Moreover, the petitioner, admittedly, did not disclosethe developments of February 23, 2008 to any of hissuperior authorities, either on the relevant date orsubsequently. Only after the respondent No. 4 cameto withdraw and amount, which was declined on theground of insufficiency of balance, and the authoritiessought for an explanation, did the petitioner set uphis concocted defence.

It is further argued that the alleged letter written bythe respondent No. 4 ipso facto does not prove the

innocence of the petitioner.

As such, it is argued that the authorities acted wellwithin their jurisdiction in dismissing the petitionerupon a proper enquiry being held.

10. Upon considering the submissions of the parties,it is revealed that, upon the matter being remandedby a Co-ordinate Bench of this court, the authoritiesgave a proper hearing to the petitioner. Moreover,the orders impugned in the present writ petition arewell-reasoned and cannot, by any stretch ofimagination, be considered to be non-speaking.

That apart, the petitioner failed to explain his conductin returning the cash amount of ` 8500/-, along withthe receipt, to the respondent No. 4 instead ofdepositing the same.

11. If the discrepancy in accounts was neverdiscovered, either at the behest of the respondentNo. 4 or by the authorities on their own, it is doubtfulas to whether the petitioner would have disclosedthe incident to the authorities at all. Despite gettingsufficient opportunity to do so, the petitioner chosenot to give an explanation or report the matter tothe authorities, until called upon to do so on thediscrepancy in accounts coming to light due toVikash’s request of withdrawal of ` 7000/- beingdeclined by the bank.

12. Post-computerization of banks, the recording ofdeposits in accounts is not necessarily preceded bya deposit scroll being handed out. Even prior to theera of digitization, the issuance of a deposit scrolland the recording of deposits were internal mattersof the bank. There could not have been anyjustification in the petitioner issuing a receipt, alongwith the money itself, to respondent No. 4, requestingthe letter to obtain the corresponding deposit scroll.Basic banking norms militate against such callousnesson the part of a bank employee, more so in the caseof an experienced bank employee like the petitioner.

13. As far as the return of ` 8500/- to the customeris concerned, the explanation given by the petitioneris as lame as can be, since there could not have arisenany occasion for the money to be returned to thecustomer, even if no deposit scroll was issued. It was


HE WHO SEEKS HAPPINESS BY HURTING WILL NEVER FIND IT

for the petitioner to do the needful in the event suchan error occurred and not the duty of the customerto ensure compliance of such rules. Thus, the storyof return of ` 8500/- to respondent No. 4 is notcredible even to the most gullible, let alone a prudentperson.

14. As far as the evidence is concerned, the oraldeposition of a colleague of the petitioner and aregular customer of the bank, other than therespondent No. 4, cannot be lent credence to overridedocumentary evidence. Such oral evidence could atbest be corroborative in nature, in support of aplausible explanation, if given by the petitioner. In viewof the total absence of any plausible explanationcoming from the petitioner’s end in the first place,there arises no question of ‘corroboration’.

15. As regards the purported letter given by therespondent No. 4, the same merely indicates that therespondent No. 4 was ‘returning’ an amount of` 8500/- to the bank, which was cash which he gotfrom the bank. The said document, by itself, is notproof enough of the attending circumstances forsuch return and cannot be co-related directly withthe incident dated February 23, 2008. Although thesaid letter says that Vikash (respondent No. 4) wasmentally disturbed and could not understand ”theright situation”, such a blanket statement cannotlead to the conclusion which the petitioner offers byway of explanation. The petitioner failed to reportthe matter to anyone in the bank, let alone his superiorofficers, not only on the date of occurrence, butthereafter, before he was prodded to do so by theauthorities. Moreover, the petitioner showed noinclination at any point of time to justify the patentdiscrepancy in the bank’s transactions for the day,before being called upon to do so.

16. There might have been umpteen reasons for whichVikash wrote, or was compelled to write, the purportedletter dated March 27, 2008. The discrepancy in thebank’s accounts might well have been a tool to coaxthe respondent No. 4 into taking the responsibilityfor the same upon himself, by way of a veiled threatof legal action against Vikash for the happenings ofFebruary 23, 2008. In any event, one cannot butresort to conjecture as to what impelled therespondent No. 4 to author the said letter, if he did

so at all. That apart, the mere verbal statements ofthe defence witnesses in the disciplinary proceedings,regarding the petitioner having returned the amountto the respondent No. 4 does not find resonance inthe documentary evidence, including the glaringinconsistency in the accounts of the bank. The gapbetween plausibility and the petitioner’s explanationfor having allegedly retuned the amount of money torespondent No. 4 is wide enough to belie suchexplanation.

17. That apart, although the previous actions of thepetitioner did not have direct bearing on the incidentof February 23, 2008, such past conduct was alsopart of the allegations against the petitioner in theshow-cause notice. There appears to be utter absenceof proper explanation for such conduct. As regardsthe habit of the petitioner to regularly default inrepaying loans and in asking for loans in the first place,there was no answer, worth the name, from thepetitioner.

18. Regarding the flouting of the bank’s rulesregarding depositing title deeds against loans takenby the petitioner from the bank, the DisciplinaryAuthority specifically considered the fact that suchtitle deeds were pre-mortgaged with some other bankunerringly indicating towards the petitioner beingguilty of suppressing material facts while taking theloan from respondent No.1.Non-deposit of titledeeds, though seemingly innocuous by itself, attainslarger proportions while coupled with the fact thatthe intention of the petitioner behind such non-depositwas deliberate as the property was previouslyencumbered.

19. In the present case, no case of victimization orpatent mala fides and / or abuse of the process oflaw have been made out by the petitioner. The decisiontaken by the bank in its disciplinary capacity was aplausible one, in the facts of the case, and it wouldbe against all settled law to disturb such decisionmerely by replacing the views of the court of the courtwith those of the Disciplinary Authority merelybecause another opinion was possible.

20. The Indian Evidence Act, cited by the petitioner,need not be strictly followed in disciplinaryproceedings. The principles of natural justice and the


DO NOT DWELL ON THE PAST OR FUTURE. CONCENTRATE ON THE PRESENT MOMENT

concepts of justice, equity and good conscience, whichare yardsticks even in administrative law, werecomplied with by the authorities in expelling thepetitioner. The petitioner had his opportunity ofhearing and all relevant contentions were consideredby the Disciplinary Authority and the appellateAuthority, both of which came to reasonedconclusions.

21. Hence, the orders impugned herein do not warrantinterference by this court in its writ jurisdiction. Thecourt cannot usurp the jurisdiction of a fact-finding

authority in its writ jurisdiction and enter into a denovo appreciation of the evidence after the order ofthe Disciplinary Authority was confirmed by theAppellate Authority.

22. In the light of the above discussions, the writpetition fails. Accordingly, WPO No. 280 of 2020 isdismissed on contest, but without any order as tocosts.

Urgent certified website copies of this order, if appliedfor, be made available to the parties uponcompliance with the requisite formalities.

SALARY AND PENSION – Receiving is fundamentalright of an employee – Cannot be withheld on accountof short of funds – Vide order dated 09.03.2021, theHigh Court had directed all municipal corporationsto clear arrears of salaries and pensions of employeesby 05.04.2021 – Corporation has filed an applicationseeking extension of time upto 30.04.2021 since theyhave not received Basic Tax Assignment from GNCTD– On 24.03.2021, Court had directed GNCTD torelease BTA to corporation in budget for F.A. 2021–22 by 31.03.2021 – BTA stands paid to applicant Nr.DMC – Held, non-payment if wages / pension directlyimpinges on employees’ right to life and liberty underArticle 21 of Constitution of India – It is for theCorporation to find ways and means for paying salariesand pensions to its employees – Non-availability offund cannot be an excuse – Application is dismissed.

For Petitioner: Mr. Tarun Sharma and Ms. AkankshaKapoor, Advocates.

For Respondents (GNCTD): Mr. Sandeep Sethi, Sr.

2021 LLR 525DELHI HIGH COURT

Hon’ble Mr. Vipin Sanghi, J.Hon’ble Ms. Rekha Palli, J

CONT. CAS(C) 524/2020 and connected cases,Dt/- 5-4-2021

Nagar Nigam Sewa Nivrit Karamchri KalyanSamiti and Others

Vs.Gyanesh Bharti

Advocate with Mr. Satyakam, ASC.

For Respondents (SDMC): Mr. Divya Prakash Pande,SC with Ms. Pooja Sharma, Advocate.

For Respondents (Nr. DMC): Mr. Divya PrakashPande, SC with Ms. Pooja Sharma, Advocate.

IMPORTANT POINTS

Receiving salary and pension is fundamental rightof an employee which cannot be withheld onaccount of short of funds.

Application filed by corporation seeking extension offor paying arrears of salary and pension is dismissedsince it non-payment of wages / pension directlyimpinges on employees’ right to life and liberty underArticle 21 of Constitution of India.

It for the Corporation to find ways and means forpaying salaries and pensions to its employees and


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non-availability of fund cannot be an excuse.

ORDER

CM APPL. 12356/2021 in W.P. (C) 3511/2020

Vipin Sanghi, J. – 1. This is an application moved byNr. DMC seeking extension of time from 05.04.2021to 30.04.2021 to clear the arrears of salaries / pensions.In terms of our order dated 09.03.2021, we haddirected all the municipal corporations to positively clearthe outstanding arrears of salaries and pensions of therespective employees by 05.04.2021.

2. One of the primary reasons given by the corporationsfor not paying up to salaries and pensions was non-receipt of the Basic Tax Assignment (BTA) from theGNCTD to the extent that the same should have beenpaid. On 24.03.2021, after considering the applicationmoved by one of the corporations being CM APPL.10875/2021 we had directed the GNCTD to makepayments of the remaining amounts due towards BTAto the corporation on the basis of their own revisedestimates presented in the budget for the financial year2021–22. The said amount was directed to be paidwithin the financial year i.e. by 31.03.2021. Admittedly,

the remaining amount towards BTA in terms of ourorder dated 24.03.2021 stands paid qua the applicantNr. DMC.

3. Learned counsel for the applicant / Nr. DMC statesthat pension / salaries stand fully paid till January 2021.Further, in respect of Safai Karamchari, the salariesand pensions have been fully paid till February 2021.

4. We have considered the submissions made in theapplication, as well as the facts and figures statedtherein. The right of the employees and the pensionersto receive their salaries and pension is a fundamentalright and non-payment thereof directly impinges ontheir right to life and liberty enshrined under Article 21of the Constitution of India. We are therefore notinclined to pass any order which would adverselyimpinge upon this right of the employees and thepensioners. Since the applicant / corporation hasemployed personnel to render their services for andon behalf of the corporation, it is for the corporationto find ways and means for making payment of salariesand pensions to its employees and pensioners, andnon-availability of funds cannot be an excuse for non-payment of salaries and pensions on time. We,therefore, dismiss this application.

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