IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22 .3.2011
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.4541 OF 2005
S.K.Imayalathun .. Petitioner
vs
1.The Appellate Authority
Deputy General Manager
Central Bank of India
Hyderabad Zonal Office
Bank Street,
Koti, Hyderabad 95
2.The Assistant General Manager
Central Bank of India
Regional Office, Coimbatore
No.14-15, Variety Hall Road
Coimbatore 641 001 .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India for the issue of writ of Certiorarified Mandamus calling for the records relating to the order of the first respondent dated 30.6.2004 in ZO:PRS:2004-05:975 confirming the order of the second respondent dated 2.12.2003 in RO:PRS:DAD:2003-04:22 and quash the same and consequently direct the respondents herein to re-instate the petitioner in service as Assistant Manager (Junior Management Grade-Scale I) with effect from 2.12.2003 with all attendant benefits arising there from.
for petitioner : Mrs.A.L.Gandhimathi
for respondents : Mr.V.Karthick
for
M/s T.S.Gopalan & Co.,
(for R1 and R2)
ORDER
This is a case where the petitioner while serving as Official Branch Manager at Ramayanahalli from 14.6.1996 till his transfer to Coimbatore main branch on 2.11.2000 said to have committed various lapses and irregularities. Initially by placing him under suspension by order dated 21.2.2011, after four months, the respondent bank issued a charge sheet containing multiple charges dated 26.6.2011 asking the petitioner to submit his explanation to all the charges. Among the charges of misconduct it was alleged that the petitioner had sanctioned a sum of Rs.1,00,000/- on 23.3.1999 to one Rajammal for the purpose of land development, deepening of well, godown and car shed. While disbursing the loan, the petitioner had retained a sum of Rs.50,000/- after obtaining documents from the loanee and executed two promissory notes dated 21.06.2000 for a sum of Rs.20,000/- and Rs.30,000/- and also issued a post-dated cheque dated 15.1.2001 for a sum of Rs.50,000/- in favour of Mr.R.G.Settu who was the son-in-law of the borrower. One another serious charge was that the amount of Rs.50,000/- was misappropriated by the petitioner and he has also obtained pecuniary gain out of the loan sanctioned to the borrower. The other charge indicates that the petitioner had also sanctioned and disbursed term loans under the Government scheme called THADCO with the help of a middle man. Yet another allegation was, for the purpose of misusing subsidy amount, it was found that the loan amounts were cleared in a short span of time and thereby showing that the petitioner facilitated the loanee to avail subsidy amounts. Further allegation was that the petitioner had sanctioned loans to various other persons from whom he had received money and the bank was not able to recover the entire loan amounts. Yet another charge alleges that without obtaining photographs of the loanees, the petitioner sanctioned advances to borrowers beyond the service area allocated to the branch and sanctioned loans by flouting the banks laid down norms and flouted administrative guidelines. The petitioner submitted his reply on 19.7.2001 to the memorandum of charges wherein he has also admitted there were minor discrepancies in certain transactions. The disciplinary authority having not satisfied with the explanation, informed the petitioner about the holding of further enquiry by the respondent bank. After receipt of the charge memo, on going through the memorandum, the petitioner pleaded permission to peruse the records before he could give any reply. Accordingly, permission was granted to peruse the records. After perusal, the petitioner gave a detailed reply stating that he had not made any lapses and all the loans were given in accordance with the norms and that he requested to consider his reply favourably. On receipt of the said reply, after six months the respondent informed the petitioner about holding of departmental enquiry in regard to imputation of misconduct and directed him to submit written statement of defence within 15 days of the receipt of the memorandum of charges failing which he was informed that the respondent would proceed without waiting for the said defence under Regulation 6(4) of the Central Bank of India Officer Employees (Conduct) Regulations 1976. After going through those documents the petitioner also requested the second respondent to have an Advocate as defence assistance. Since the Officer’s Discipline and Appeal Regulation did not permit the petitioner to have an Advocate as defence assistance, the said request for engaging an outside Advocate in the enquiry was rejected. But he was again informed to avail the assistance of any other officer or employee as defence assistance. Finally, enquiry was fixed by appointing an enquiry officer. The same was also concluded on 27.4.2003. After presenting 1,428 exhibits involving 167 documents, 12 management witnesses including two staff members were examined on the side of the management. At this juncture, the learned counsel appearing for the petitioner submitted that the enquiry was conducted as one side affair, since the petitioner was not permitted to be assisted by any outside Advocate and none of the officers assisted the petitioner as defence assistant. It was further argued that the petitioner was virtually not able to present his case before the enquiry officer. Finally, the enquiry officer submitted his report holding the charge Nos.3,5,6 and 14 were not proved; charge No.13 was partly proved and that the other 10 charges were proved against the petitioner. The disciplinary authority after receipt of the copy of the enquiry report forwarding a copy to the petitioner asked the petitioner to submit his further explanation on the findings of the enquiry officer within 10 days from the date of receipt of the same. After receipt of the findings of the enquiry officer along with the notice from the respondent bank, the petitioner submitted his further representation on 3.10.2003. But without going through the explanation and considering the enquiry officers findings in detail, the learned counsel appearing for the petitioner argued that the disciplinary authority mechanically by order dated 2.12.2003 found that all the charges against the petitioner were proved and imposed various penalties for each of the charges and finally a consolidated punishment of dismissal from service in terms of Clause 4(j) of Central Bank of India Officer Employees (Discipline and Appeal)regulations, 1976 was passed. Aggrieved by the said order of dismissal passed by the second respondent, the petitioner filed an appeal before the first respondent on 17.1.2004. But the appellate authority, without application of mind and without giving any opportunity to the petitioner to putforth his case, again dismissed the appeal by order dated 13.6.2004 confirming the dismissal order. As against the same, the petitioner filed the present writ petition challenging the correctness of the order.
2. The learned counsel appearing for the petitioner placed three submissions and they are as follows:
(i) Firstly, the petitioner was not provided with an obligation of his choice to assist him in the enquiry when 1,428 exhibits involving 167 main documents were presented as management exhibits and 12 management witnesses including two staff members were examined on the side of the management. The management should on their own come forward to help the petitioner with the assistance of an outside Advocate. As they have not done so, the petitioner was not able to properly defend his case before the enquiry officer.
(ii) Secondly, as the second respondent had not considered the further explanation offered by the petitioner on the report of the enquiry officer and the respondent has almost conducted the entire enquiry as an one side affair and the petitioner was not able to defend himself properly, it was not a proper enquiry.
(iii)On a bare reading of the charges framed makes it clear that all the charges were framed on the ground that the petitioner has sanctioned loan without following the norms and there was no specific charge of financial misconduct against the petitioner and all the charges were in respect of expenses and therefore, when there were no serious charges warranting dismissal of the petitioner from service, the major punishment of dismissal from service is disproportionate to the charges proved against the petitioner. Even when the appeal was filed before the appellate authority, the appellate authority also fails to consider the defence on the explanation given by the petitioner before confirming the order of dismissal from service. Therefore, it is pleaded that all the charges levelled against the petitioner were not on the basis of non-compliance or misconduct on the part of the petitioner. On these basis it was contended that the impugned order is arbitrary, illegal and violative of principles of natural justice.
3. Opposing the submissions made by the learned counsel appearing for the petitioner, Mr.V.Karthick, learned counsel appearing for the respondents submitted that the writ petition is neither maintainable on facts nor in law for the reason that the petitioner while serving as Branch Manager instead of maintaining absolute integrity and devotion to the post he was holding, has rendered himself unbecoming of a trustworthy Branch Manager by committing various misconducts including taking monetary consideration from borrowers for sanctioning loan amount. When the petitioner was found receiving pecuniary gain out of the loan sanctioned to the borrowers and has also executed promissory notes, issued a cheque for a sum of Rs.50,000/- and when the said amount was encashed his post-dated cheque was also dishonoured for the reason that the account was closed and when such a serious misconduct was committed by the petitioner by misuse of his position as Branch Manager, along with several other charges, he was charge sheeted. After all reasonable opportunities, when his explanation did not convince the disciplinary authority, the enquiry was ordered. In the enquiry, though he participated silently, he did not come forward to cross-examine any of the witnesses. He again failed to provide any documents to prove his innocence. He kept on asking for permission to engage a private lawyer, which is not permissible. Though enquiry proceedings were adjourned, till the enquiry was over, the petitioner did not take any effort to prove his innocence. Therefore, the disciplinary authority found him guilty of all the charges. Even before the disciplinary authority awarded the punishment of dismissal from service, a notice was given to the petitioner calling upon him to submit his explanation as to why the disciplinary authority shall not differ with the findings of the enquiry officer in respect of charge No.13 and charge Nos.3,5,6 and 14 and after obtaining his explanations, the disciplinary authority having not found any reasonable stand in the petitioners further representation, awarded the major punishment of dismissal from service. The petitioner aggrieved by the said order went in appeal before the appellate authority and the appellate authority also by giving sufficient reasons dismissed the appeal. When the petitioner has not shown before this Court any violation of the procedure while holding the enquiry, this Court while exercising power under Article 226 of the Constitution of India, cannot interfere with the quantum of punishment and on that basis, the learned counsel for the respondents prayed for dismissal of the writ petition.
4.(i)The petitioner after receipt of the charge memo containing 15 charges asked permission to go through the relevant files. Accepting the said request he was given an opportunity to peruse the files. Again he asked for permission to take the assistance of an Advocate of his choice. As the Officer’s Discipline and Appeal Regulations did not permit to engage any counsel in the domestic enquiry, the bank by letter dated 20.4.2002 informed the petitioner to take the assistance of any officer employed in the bank as his defence representative. But the petitioner refused to take the assistance of any officer employed in the bank as his defence representative. Finally, enquiry was held. When the enquiry commenced on 22.1.2003 again the petitioner took the stand that no person was willing to defend him in the enquiry. However, he refused to inspect the original documents that were made available. As the petitioner has refused to inspect the same, the enquiry officer adjourned the matter to 23.1.2003 directing the petitioner to inspect the original documents. Again he did not make use of it. Finally, the enquiry continued on 24.1.2003, 25.1.2003, 27.1.2003, 28.1.2003 and 29.1.2003 etc. Again it was adjourned for marking the petitioners documents on 10.2.2003. When the witnesses were produced from the management side, the petitioner did not even choose to cross-examine any of them. Finally, enquiry was closed on 30.4.2003. Thereafter, the enquiry officer submitted his report holding that charge No.13 was partly proved, charge Nos.3,5,6 and 14 were not proved; but the rest of the other 10 charges were held proved. Again he was asked to give his explanation by giving a copy of the enquiry officer. After receiving further representation from him on the basis of the report of the enquiry officer, the disciplinary authority differed with the findings of the enquiry officer in respect of charge Nos.3,5,6 and 14 and also charge No.13 for which a proper opportunity was given as to why the disciplinary authority should not differ from the findings of the enquiry officer with respect to charge No.13 and charge Nos.3,5,6 and 14. The petitioner again submitted his reply not to deviate from the said charges. Rejecting the request of the petitioner, the disciplinary authority imposed the punishment of dismissal since the articles of charges which stood proved, constituted misconduct within the meaning of Regulations 3, 14, 15 (1) and 19 read with Regulation 24 of Central Bank of India Officer Employees (Conduct) Regulations, 1976 which attracted penalty under Regulation 4 of Central Bank of India Officer Employees (Discipline and Appeal) Regulations 1976. Aggrieved by the said order, the petitioner preferred appeal and the same was also dismissed and as against the same, the petitioner has come to this Court.
(ii) When the petitioner faced 15 charges, some of them appeared to be serious in nature for the reason that when there was allegation against the petitioner that he sanctioned a sum of Rs.1,00,000/- on 23.3.1999 to Mrs.Rajammal for the purpose of deepening well and putting up a car shed, the enquiry officer found that while disbursing the crop loan, the petitioner had retained a sum of Rs.50,000/- after obtaining documents from the loanee and subsequently executed two promissory notes on 21.6.2000 for a sum of Rs.20,000/- and Rs.30,000/- for which he also issued a post dated cheque for a sum of Rs.50,000/- in favour of one R.G.Settu who was the son-in-law of the said borrower. There was another allegation against the petitioner that an amount of Rs.50,000/- was misappropriated by the petitioner and when the post-dated cheque dated 15.1.2001 was encashed, the same was dishonoured for the reason ‘account closed.’ When the petitioner was working as a Branch Manager, issuing a post-dated cheque as though he was having a living account when the account was already closed, amounts to serious misconduct.
(iii)Another allegation made against the petitioner was that he allowed one Kamalam Ganesan to transfer a sum of Rs.75,000/- to make it appear as if it was a recovery. Yet another allegation shows the petitioner had sanctioned loan to others from whom he had received money and the bank was not in a position to recover the entire loan amount. The enquiry officer in his findings clearly noticed that the petitioner did not obtain photographs from the loanees but sanctioned advances to borrowers beyond the service area allocated to the branch and sanctioned loans by flouting the banks laid down norms and flouted administrative guidelines. These are all the major charges which are completely found against the petitioner by the enquiry officer. Therefore, when the enquiry officer submitted his report holding that the charge No.13 was partly proved and charge Nos.3,5,6 and 14 were not proved, when the rest of the 10 charges were proved, the disciplinary authority had not accepted the findings of the enquiry officer in respect of charges 3,5,6 and 14 were not proved and charge No.13 which was partly proved, gave his further notice to the petitioner calling upon him to submit his further explanation as to why the disciplinary authority could not differ from the findings of the enquiry officer in respect of charge No.13 and charge Nos.3,5,6 and 14. After receipt of the said notice, the petitioner submitted his explanation and thereupon, the disciplinary authority deviated from the findings of the enquiry officer and thereafter, by following all other procedures imposed a major punishment of dismissal from service that the petitioner committed serious misconduct within the meaning of Regulation 3 read with Regulation 24 of the Central Bank of India Officer Employees (Conduct) Regulations 1976 which attracted penalty under Regulation 4 of the Central Bank of India Officer Employees (Discipline and Appeal)Regulations and after warranting punishment on each proved charges finally as a consolidated punishment, the disciplinary authority imposed the punishment of dismissal from service in terms of Regulation 4 of the Central Bank of India Officer Employees (Discipline and Appeal) Regulations.
(iv)Aggrieved by that, the petitioner moved an appeal before the appellate authority. The appellate authority also after considering the case of the petitioner by well reasoned order by giving various independent reasoning in support of the dismissal order, dismissed the appeal. In fact, since the petitioner sought for permission to take Advocate to present his case, an independent finding was given stating that it was open to him to take the assistance of an officer to defend his case, but seeking assistance of an Advocate was not in conformity with the Officer’s Discipline and Appeal Regulations, since a charged employee may take the assistance of any other Officer employee but may not engage a legal practitioner for the reason that unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits.
(v)The appellate authority also went into all the issues independently and finally found that no transgression of principles of natural justice was found in holding the enquiry by the enquiry officer and after satisfying that the petitioner was offered with all opportunities to demolish the charges framed against him and to establish his innocence, yet the petitioner chose to remain as a ‘mute spectator’ throughout the enquiry. On that basis the appellate authority held that the petitioner cannot be allowed to blame anybody as he has to blame himself for his own making.
(vi) A close reading of the entire records clearly goes to show that the petitioner while participating in the enquiry proceedings deliberately did not cross-examine any of the witnesses produced by the respondent bank. For instance, when one witness Mr.Sundar Vadivelu who was working as Joint Manager, Ramayanahalli Branch was examined, the petitioner did not choose to cross-examine him. Thereafter, when K.R.Mohandas, was cross-examined on 28.2.2003, 01.03.2003, 03.03.2003, 04.03.2003, 05.03.2003, 12.03.2003, 21.04.2003, 22.04.2003, 23.04.2004 and 24.04.2003, again the petitioner did not cross-examine the said witnesses. Again on 30.4.2003, when three more witnesses were examined, the petitioner did not choose to cross-examine any of them. Therefore, the enquiry was closed on 30.04.2003. Had the petitioner wanted to make use of an opportunity given to him to establish his innocence before the enquiry officer, he would have cross-examined all the witnesses. But, unfortunately, he has not chosen to do so. Again when he was questioned by the enquiry officer, except saying that he was innocent of the charges, he did not come forward to cross-examine the witnesses or made any complaint regarding the manner in which the enquiry was completed. Therefore, the petitioner cannot complain about the punishment imposed against him by the disciplinary authority as confirmed by the appellate authority. In another occasion when the enquiry officer submitted his finding holding that charge No.13 was partly proved and charge Nos.3,5,6 and 14 were not proved, the disciplinary authority differing with the findings of the enquiry officer gave a notice to the petitioner asking him to submit his explanation as to why the disciplinary authority should not differ with the findings of the enquiry officer, for which the petitioner submitted his explanation and a second show cause notice was issued and thereupon, the disciplinary authority passed the impugned order of dismissal. So, at every stage from the holding of enquiry till the passing of the final order by the disciplinary authority and also by the appellate authority, I do not find any infirmities or irregularities. Therefore, the contentions made by the learned counsel appearing for the petitioner that the enquiry was not conducted in a proper and fair manner suffers no substance and credence. Further, when the petitioner was awarded with the punishment of dismissal from service by the disciplinary authority and when the quantum of punishment was also gone into by the appellate authority, this Court as held by the Apex Court in various judgments vide Union of India v. Parma Nanda (1989 II CCRS Cl) and B.C.Chaturvedi v. Union of India (1995 (6) SCC 749) cannot look into the quantum of punishment imposed by the disciplinary authority as confirmed by the appellate authority. He not only failed to protect the interest of the Bank, but also exposed the Bank to a great financial loss in number of accounts. Therefore, I hold, the impugned punishment is commensurate with the gravity of the mis- conducts so proved.
5. In view of the same, I do not find any merits in the writ petition. Accordingly, the writ petition fails and the same is dismissed. No costs.
sal
To
1.The Appellate Authority
Deputy General Manager
Central Bank of India
Hyderabad Zonal Office
Bank Street
Koti, Hyderabad 95
2.The Assistant General Manager
Central Bank of India
Regional Office, Coimbatore
No.14-15, Variety Hall Road
Coimbatore 641 001