{"id":211065,"date":"2003-04-24T00:00:00","date_gmt":"2003-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-silveira-vs-managing-director-on-24-april-2003"},"modified":"2016-12-11T20:15:16","modified_gmt":"2016-12-11T14:45:16","slug":"a-silveira-vs-managing-director-on-24-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-silveira-vs-managing-director-on-24-april-2003","title":{"rendered":"A.Silveira vs Managing Director on 24 April, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Silveira vs Managing Director on 24 April, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 24\/04\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.S.SIRPURKAR\nAND\nTHE HONOURABLE MR.JUSTICE C.NAGAPPAN\n\nWRIT APPEAL NO.300 OF 1998 AND  WRIT APPEAL NO.843 OF 1998\n\nA.Silveira                                     ... Appellant in W.A.\n                                                No.300\/1998 and\n                                                respondent in<\/pre>\n
                                                W.A.No.843\/1998<\/p>\n
-Vs-\n<\/p>\n
1. Managing Director,
\n   Indian Overseas Bank,
\n   Central Office,
\n   762, Anna Salai,
\n   Chennai-600 002.\n<\/p>\n
2. General Manager,
\n   Indian Overseas Bank,
\n   Central Office,
\n   762, Anna Salai,
\n   Chennai-600 002.\n<\/p>\n
3. K.Balasubramaniam,
\n   12\/12, Subaragh, Shenoy Road,
\n   Nungambakkam, Chennai-600 034.\n<\/p>\n
4. R.Ramachandran,
\n   121, Sterling Road,
\n   Nungambakkam, Chennai-600 034.       … Respondents in W.A.\n<\/p>\n
                                        No.300\/98 &
\n                                        Appellants in
\n                                        W.A.No.843\/1998<\/p>\n
                Writ Appeals under Clause 15 of  Letters  Patent  against  the
\norder of the learned Single Judge in W.P.No.17347 of 1994, dated 11.12.1997.<\/p>\n
\n\nF!or Appellant in\nW.A.300\/98 and          :::     Mr.K.Chandru,\nrespondent in                   Senior Counsel for\nW.A.843\/1998                    Mr.K.Kannan\n\n^For Respondents in\nW.A.300\/98 and          :::     Mr.N.G.R.Prasad\nappellants in\nW.A.843\/1998\n\n\n:COMMON JUDGMENT\n\nC.NAGAPPAN,J\n\n<\/pre>\n
                Both  the  writ  appeals are directed against the order of the
\nlearned single Judge, dated 11.12.1997, in W.P.No.17347 of 1994.\n<\/p>\n
                2.  The writ petitioner is  the  appellant  in  W.A.No.300  of
\n1998.   Respondents  1  to  4  in  the  writ  petition  are  the appellants in
\nW.A.No.843 of 1998.\n<\/p>\n
                3.  The writ petitioner  joined  the  services  of  the  first
\nrespondent  Bank  as  an  unpaid  probationary  clerk  in 1944 and reached the
\nposition of Deputy General Manager at the Central Office, Madras and  was  due
\nto retire  on  superannuation  on 29.2.1988.  On 27.2.1988, the petitioner was
\nserved with a letter from the third respondent placing him under suspension in
\nterms of Regulation 12(1)(a) of the Indian Overseas  Bank  Officer  Employees’
\nConduct  and  Discipline & Appeal Regulations, 1976 on the ground that enquiry
\ninto the charges levelled against him on 15.2.1986 was contemplated.   On  the
\nsame  day,  the  petitioner  was  served  with another letter from the General
\nManager intimating him that in  view  of  the  suspension  order,  he  is  not
\npermitted to  retire  by virtue of the provisions of Regulation 20(3)(c).  The
\ncharge sheet, dated 15.2.1986, related  to  certain  acts  of  commission  and
\nomission  alleged  to  have  been  committed  by the petitioner as ‘the Chief,
\nInternational Division, Central Office, during the period 1978-1982’.  At that
\ntime, the petitioner was Assistant General Manager in the  matter  of  Drawing
\nArrangement  of  Rupee Accounts extended to International Finance and Exchange
\nCorporation (IFEC), Doha  and  Arabian  Exchange  and  Financial  Organisation
\n(AEFO),  Doha and on account of the failure of those companies, there was loss
\nto the Bank.                    Originally   an   Inspection   Committee   was
\nspecially  constituted  by  the Board on 7.1.1983 to analyse the circumstances
\nwhich resulted in the loss and identify the Operational\/Executive Officials of
\nthe Bank on whom responsibilities could be fixed for the loss and according to
\nthe  petitioner,  the  Committee  attributed  the  losses  only  to  the  then
\nsupervision and control systems in force and did not fix the responsibility on
\nany single  individual.    Five  other  Public  Sector Banks in India suffered
\nsimilar losses in respect of the very same  companies.    The  petitioner  has
\nfurther  stated  that  not  withstanding  the Committee’s Report, a show cause
\nnotice, dated 22.7.1983, was issued to the petitioner calling his  explanation
\nfor  the alleged irregularities\/lapses observed in the Drawing Arrangements of
\nIFEC, Doha and AEFO, Doha.  The petitioner in  his  reply,  dated  14.10.1983,
\nrefuted  the allegations and pointed out the steps taken by him at every stage
\nto protect the interest of  the  Bank.    No  action  was  taken  against  the
\npetitioner for 2-1\/2 years after the receipt of his reply and the charge sheet
\nwas served on 27.2.1986 and then the petitioner was suspended.  The petitioner
\nfiled  independent  writ  petitions  challenging  the suspension order and the
\ncharge memo.  The disciplinary authority passed final order, dated 19.10.1992,
\ndismissing the petitioner from service.  The petitioner filed an appeal, dated
\n4.5.1993, to the Managing Director, who is the appellate authority and he,  by
\nhis  order,  dated 25.1.1994, set aside the order of dismissal and imposed the
\npenalty of removal from service.  Challenging the same, the  petitioner  filed
\nwrit  petition  No.17347 of 1994 for issuance of a writ of certiorari to quash
\nthe orders of Respondents 1 and 2, dated 25.1.1994 and 19.10.1992.\n<\/p>\n
                4.  The  respondents  in  their  counter  contended  that  the
\npetitioner  was  suspended  for gross irregularities committed by him while he
\nwas  functioning  as  Assistant  General  Manager\/Deputy  General  Manager  of
\nInternational   Division   at   Central   Office   handling  foreign  exchange
\ntransactions in respect of rupee drawing  arrangements  with  IFEC,  Doha  and
\nAEFO, Doha  and  the  Bank sustained loss about Rs.5.50 crores.  He was served
\nwith a charge sheet, dated 15.2.1986 and since he was due  for  retirement  on
\n29.2.1988,  he  was  placed  und er suspension on 27.2.1988 for the purpose of
\ncompleting the enquiry.   It  is  further  stated  in  the  counter  that  the
\ndisciplinary  authority  conducted  the  enquiry as per rules and proposed the
\npunishment of dismissal and the petitioner was given an  opportunity  to  show
\ncause   against  the  punishment  and  thereupon  order  of  dismissal,  dated
\n19.10.1992, was passed.  The petitioner  filed  an  appeal  to  the  appellate
\nauthority and a personal hearing was given to the petitioner and the appellate
\nauthority  reduced  the  punishment  of  dismissal  into  one  of removal from
\nservice.  In view of reduction in penalty, all the terminal  benefits  due  to
\nthe  petitioner  amounting to Rs.6,77,848.69 was released to the petitioner on
\n20.4 .1994.  Disciplinary proceedings were conducted in an impartial manner as
\nper rules and the allegations levelled by the petitioner are devoid of merit.\n<\/p>\n
                5.  The writ petitioner in his reply affidavit contended  that
\nhe alone is not wholly responsible for the administration of the International
\nDivision  and  both  the  authorities  never  considered  this  ground and the
\npetitioner had been made a scapegoat.\n<\/p>\n
                6.  The learned single Judge  concluded  that  the  orders  of
\ndisciplinary  authority  and  appellate authority are liable to be quashed and
\nallowed the writ petition in part and held that the petitioner is entitled  to
\nall  the  terminal  benefits as if he is retired on superannuation, but all of
\nthem are restricted to 50% alone and he is also entitled to 50% of the pension
\nonly.  The learned Judge further held that it is open to the Bank to conduct a
\nfresh enquiry into the matter against all the persons involved, in  accordance
\nwith law.\n<\/p>\n
                7.   Aggrieved  by  the above order, the petitioner as well as
\nthe respondents have preferred independent writ appeals.\n<\/p>\n
                8.  The order is assailed by both the appellants before us  on
\nthe  main ground that the learned Single Judge has no jurisdiction in granting
\nonly 50% of the terminal benefits, including pension to the  writ  petitioner.
\nThe  observation  of  the  learned  Single  Judge  that it is open to the Bank
\nManagement to conduct fresh enquiry into the matter against  all  the  persons
\ninvolved in  loss  is also questioned.  The learned Single Judge has concluded
\nthat both the order of  disciplinary  authority  and  that  of  the  appellate
\nauthority were liable to be quashed and allowed the writ petition in part, but
\nhas  granted  only  50% of terminal benefits, including pension payable to the
\nwrit petitioner.\n<\/p>\n
                9.  The learned senior counsel appearing for  the  appellants\/
\nrespondents  in  the  writ  petition, contended that the learned Judge, having
\nheld that the writ petitioner is one among the persons who have caused loss to
\nthe bank, erred in quashing the orders of both the  authorities  removing  the
\npetitioner from  service.    It is well settled that in a departmental enquiry
\nthe  High  Court  has  no  jurisdiction  to  go  into   the   truth   of   the
\nallegations\/charges  except  in  a case where they are based on no evidence or
\nwhere they are perverse.  Under Article 226 of the  Constitution,  it  is  the
\npower  of  judicial  review  and  the  High Court only examines the procedural
\ncorrectness of the decision making process.  For this reason, the order of the
\nlearned Single Judge insofar as it  goes  into  or  discusses  the  truth  and
\ncorrectness of the charges is unsustainable in law.\n<\/p>\n
                10.   Judicial  Review,  generally  speaking,  is not directed
\nagainst a decision, but is directed against a decision making process.  In the
\npresent case, on a perusal of records, we are satisfied about  the  procedural
\ncorrectness of  the  decision making process.  The charges cannot be termed as
\nperverse and the Inquiring Authority as well as the Appellate  Authority  have
\ngranted  due  opportunity  to  the  writ  petitioner  and  complied  with  the
\nprinciples of natural justice.\n<\/p>\n
        11.  There is also material  in  support  of  the  charges,  which  is
\napparent from  the  evidence  let  in.    All that could have been done by the
\nlearned single Judge is to find out asto whether there is material  on  record
\nto  prove  the  charges  and if the material is there, there is no question of
\ninterfering with the enquiry.  In the present case, the learned  single  Judge
\nhad  erred  in  going  into  the merits of the matter on facts as if he was an
\nappellate Court.  The Enquiring Authority  and  the  Appellate  Authority  had
\nconsidered  the  matter  in proper perspective and came to the conclusion that
\nthe charges stood proved  and  this  conclusion  reached  by  them  cannot  be
\nassailed.   Further,  the  learned  single  Judge  could  not  have  ordered a
\nre-enquiry in the matter and he had no jurisdiction to bring down the terminal
\nbenefits including pension to fifty per cent and those findings are liable  to
\nbe set aside.\n<\/p>\n
                12.    The   learned   senior   counsel   appearing   for  the
\nappellant\/writ petitioner submitted that the writ petitioner  had  put  in  44
\nyears  of  unblemished  service  and he always had the interest of the Bank in
\nmind while discharging his duties and he did not have any dishonest  intention
\nto cause loss to the Bank and he was not himself benefited and he alone cannot
\nbe  blamed  for  the  loss  and  as on today he is 75 years old and sought for
\nreduction of punishment from removal from service to compulsory retirement  in
\nwhich case  the  retirement  benefits  can  accrue to him.  The learned senior
\ncounsel relied on some rulings of the Apex Court to show that this  Court  has
\nample power  to  reduce  the  punishment.   The learned senior counsel for the
\nappellants\/respondents  in  the  writ  petition  contended  that  though   the
\ndisciplinary  authority  imposed  the  penalty  of dismissal from service, the
\nappellate authority  took  a  lenient  view  and  reduced  the  punishment  of
\ndismissal  into  one of removal from service and no further compassion need be
\nshown to the writ petitioner.\n<\/p>\n
                13.  On the question whether  this  Court  itself  can  reduce
\npunishment  or  has  to  leave  the  same with the disciplinary authority, the
\nfollowing judgments of the Apex Court are relevant.\n<\/p>\n
                (i) In the case of RANJIT THAKUR  vs.    UNION  OF  INDIA  AND
\nOTHERS<\/a> – ((1987) 4 SCC 611, at page 620, the Apex Court has held as follows.\n<\/p>\n
        “Judicial  review  generally  speaking,  is  not  directed  against  a
\ndecision, but is directed against the “decision-making process”.  The question
\nof the choice and  quantum  of  punishment  is  within  the  jurisdiction  and
\ndiscretion of the court-martial.  But the sentence has to suit the offence and
\nthe offender.   It should not be vindictive or unduly harsh.  It should not be
\nso disproportionate to the offence as to shock the conscience  and  amount  in
\nitself to  conclusive  evidence  of bias.  The doctrine of proportionality, as
\npart of the concept of judicial review, would ensure that even  on  an  aspect
\nwhich  is,  otherwise,  within the exclusive province of the court-martial, if
\nthe decision of the court even as to sentence is  an  outrageous  defiance  of
\nlogic, then  the  sentence would not be immune from correction.  Irrationality
\nand perversity are recognised grounds of judicial review.”\n<\/p>\n
                (ii) In the case of B.C.CHATHURVEDI vs.  UNION  OF  INDIA  AND
\nOTHERS-((1995) 6 SCC 749, at page 762, it has been held as follows.\n<\/p>\n
        “The  High  Court\/Tribunal,  while  exercising  the  power of judicial
\nreview, cannot normally substitute its own conclusion on  penalty  and  impose
\nsome other  penalty.   If the punishment imposed by the disciplinary authority
\nor the appellate authority shocks the conscience of the High Court\/Tribunal it
\nwould   appropriately    mould    the    relief,    either    directing    the
\ndisciplinary\/appellate  authority  to  reconsider  the  penalty imposed, or to
\nshorten the litigation, it may itself, in exceptional and rare  cases,  impose
\nappropriate punishment with cogent reasons in support thereof.”\n<\/p>\n
iii)  A  Division  Bench  of  this  Court,  to  which  one  of  us  is a party
\n(V.S.Sirpurkar, J), while deciding the case in W.P.No.92 of 1998  (A.Ramaswamy
\nv.   State  of  Tamil Nadu,<\/a> represented by the Secretary to Government and two
\nothers) on 8.10.2001, has held as follows:-\n<\/p>\n
It has to be considered now whether the case on hand can  be  said  to  be  an
\nexceptional  or  rare  case  for  reduction  of  penalty by this Court itself,
\ninstead of sending the matter to the disciplinary or the  appellate  authority
\nto reconsider  the  penalty  imposed  already.   There is a single instance of
\nproof of receipt of Rs.5,000\/- from a friend on the  promise  of  getting  her
\nselected for the Teacher’s post.  Though the plea of the delinquent\/petitioner
\nthat  the  amount  was received by way of loan to meet the emergency situation
\ntowards the treatment of his father  was  not  believed  by  the  disciplinary
\nauthority,  still  the  fact  that  there  was no denial of the receipt of the
\namount by the petitioner, has to be taken into  consideration  while  imposing
\npenalty.   The  second  aspect  is  that  he  repaid  the amount together with
\ninterest.  The third and the most important one is that he had put in 33 years
\nof unblemished service and on the verge of the  retirement,  this  unfortunate
\nincident has taken place.\n<\/p>\n
Considering  the  above  situations,  we  are of the view that the plea of the
\nlearned senior counsel to reduce the penalty from that of removal from service
\nto that of compulsory retirement can be accepted.”\n<\/p>\n
                14.  It has to be considered now whether the case on hand  can
\nbe  said to be exceptional or rare case for reduction of penalty by this Court
\nitself instead of remitting the matter back to the disciplinary  authority  to
\nreconsider the penalty.\n<\/p>\n
                15.   The  Bank  has  suffered  a  loss to the tune of Rs.5.50
\ncrores in the matter of drawing arrangement  of  Rupee  accounts  extended  to
\nIFEC,  Doha  and  AEFO, Doha during the period 1978-82 and the writ petitioner
\nwas the Chief of the International Division, Central Office  of  the  Bank  at
\nthat  time and the Committee which was specifically constituted on 7.1.1983 to
\nenquire into and to analyse the circumstances which resulted in the  loss  and
\nto  identify  the  Operational\/  Executive  Officials  of  the  Bank  on  whom
\nresponsibility could be fixed for the loss, in its  report,  dated  15.3.1983,
\nhad  attributed the losses only to the then supervision and control systems in
\nforce and did not  find  proper  to  fix  the  responsibility  on  any  single
\nindividual for the flaws of the procedure and the system.  It is also admitted
\nfact  that the collapse of Gulf Exchange Companies resulted in the loss to the
\nrespondents Bank as well as five other  Nationalised  Banks.    The  Inquiring
\nAuthority  in  its findings under Charge No.2 has stated that there was laxity
\nat branch level and also at the central office level and  the  charge  sheeted
\nofficer alone  may  not  be  held accountable.  From the above findings, it is
\nclear that besides the writ petitioner other officers were also concerned with
\nthe running of the account and the  question  of  joint  liability  cannot  be
\nbrushed aside.\n<\/p>\n
                16.   The  writ  petitioner  joined  as an unpaid probationary
\nclerk in 1 944 and rose to the position of Deputy General Manager and  he  had
\nblemishless long  service.    It  is  not  alleged that the petitioner had any
\ndishonest intention to cause loss to the Bank and it is also not the case that
\nthe petitioner was himself benefited in the transaction.  The  learned  senior
\ncounsel  for  the  appellants\/ respondents Bank fairly admits that no fraud or
\ndishonesty was alleged  against  the  petitioner.    As  on  today,  the  writ
\npetitioner is said to be 75 years old.\n<\/p>\n
                17.   Considering the circumstances of the case, we are of the
\nview that the plea of the learned senior counsel appearing for him, to  reduce
\nthe penalty from that of removal from service to that of compulsory retirement
\ncan be  accepted.    Since  both  the  penalties  are  major  penalties  under
\nRegulation 4 of the  Indian  Overseas  Bank  Officer  Employees’  Conduct  and
\nDiscipline  &  Appeal Regulations, 1976, we consider it not necessary to remit
\nthe matter to the disciplinary  authority  for  considering  the  question  of
\npenalty with  a  view to shorten the litigation.  Since the penalty of removal
\nfrom service imposed on the petitioner appears to be disproportionate and  not
\ncommensurate  with  the  act  of  delinquency of the petitioner, we propose to
\nmodify the penalty of removal from service into one of compulsory retirement.\n<\/p>\n
                18.  In the result, the order of the learned Single  Judge  is
\nset aside and the penalty of removal from service imposed on the petitioner by
\nthe  appellate  authority stands modified to that of compulsory retirement and
\nthe writ appeals are disposed of accordingly.  No costs.\n<\/p>\n
Index:  Yes.\n<\/p>\n
Internet:Yes.\n<\/p>\n
gb.\n<\/p>\n
To:\n<\/p>\n
1.  Managing Director,
\nIndian Overseas Bank,
\nCentral Office,
\n762, Anna Salai,
\nChennai-600 002.\n<\/p>\n
2.  General Manager,
\nIndian Overseas Bank,
\nCentral Office,
\n762, Anna Salai,
\nChennai-600 002.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Silveira vs Managing Director on 24 April, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24\/04\/2003 CORAM THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR AND THE HONOURABLE MR.JUSTICE C.NAGAPPAN WRIT APPEAL NO.300 OF 1998 AND WRIT APPEAL NO.843 OF 1998 A.Silveira … Appellant in W.A. No.300\/1998 and respondent in W.A.No.843\/1998 -Vs- 1. Managing […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-211065","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Silveira vs Managing Director on 24 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-silveira-vs-managing-director-on-24-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Silveira vs Managing Director on 24 April, 2003 - 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