1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.11.2018 (Reserved on 05.09.2018) CORAM : THE HONOURABLE MRS.JUSTICE [ENTITY] [CASE NUMBER] and M.P(MD)No.2 of 2011 [ENTITY] Petitioner vs. 1)The [ENTITY]. 2)The [ENTITY]. Respondents Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order made in [CASE NUMBER] dated 06.04.2009 passed by the second respondent and confirmed by the first respondent vide Na.Ka.No. 49717/2009 Sa.Pa.1 dated 08.01.2010 and quash the same and consequently direct the respondents to pay all the attendant benefits accrued to the petitioner. http: www.judis.nic.in 2 For Petitioner : Mr.[ENTITY] For R1 : Mr.[ENTITY] Additional Government Pleader For R2 : Mr.[ENTITY] ORDER
The present writ petition has been filed for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order made in [CASE NUMBER], dated 06.04.2009, passed by the second respondent and confirmed by the first respondent vide [CASE NUMBER]Pa.1 dated 08.01.2010 and quash the same and consequently direct the respondents to pay all the attendant benefits accrued to the petitioner.
2.Learned counsel for the petitioner would submit that the petitioner has put in 33 years of unblemished service in Virudhunagar Central Co-operative Bank on 17.04.1973 and the petitioner claims that he worked sincerely to the satisfaction of higher authorities, but he was not given promotion due to the charges levelled against him by the authorities. As the petitioner http: www.judis.nic.in was not given promotion, he opted to retire voluntarily which was denied and the petitioner was left without posting for more than 20 months and had to beg for his sustenance.
3.Learned counsel for the petitioner further submits that during the tenure of the petitioner as Assistant cum Manager in charge in the Coronation Colony Branch of Virudhunagar District Central Co-operative Bank between 21.03.2003 and 06.08.2006, he was charge sheeted vide [CASE NUMBER] H1 dated 26.03.2007 on three counts. The charges were more general in nature and specific instances or complaints were not raised against the petitioner and the petitioner offered his explanation on 25.04.2007 and an enquiry officer was appointed who submitted his report dated 09.03.2008 holding that out of the three charges, only two charges were proved. After the report of the enquiry officer, in addition to the two charges alleged to have been proved by the enquiry officer, the respondents added fictitious and invented http: www.judis.nic.in allegations against the settled proposition of law in the notice issued to the petitioner by brushing aside the explanation offered by the petitioner dated 28.10.2008 and thereafter, the 2nd respondent by order dated 06.04.2009, terminated the petitioner from service without any adjudication, violating the principles of natural justice. Aggrieved over the same, the petitioner filed a revision before the 1st respondent and without conducting any enquiry, the 1st respondent passed a non speaking impugned order in [CASE NUMBER], dated 08.01.2010, confirming the orders of the 2nd respondent, against which, the present writ petition has been filed on the following grounds:-
(i)The respondents framed charges which are fictitious and imaginary as there is no revenue loss to the bank.
(ii)The impugned order of capital punishment is disproportionate to the charges levelled against the petitioner and it has been passed without following the principles of natural justice.
(iii)The revamping of micro loans are being done in all the http: www.judis.nic.in rural branches of Co-operative Banks and the petitioner has done the same only on the instructions of the higher officials.
(iv)In very same circumstances, the very same authority has awarded punishment of stoppage of increment for one year without cumulative effect for another incumbent, but this petitioner was singled out and awarded with most extreme punishment of dismissal from service and therefore, it is a clear case of motive and discrimination.
4.According to the petitioner, the charges never stated that he had wantonly and deliberately with an ulterior motive indulged in such activities with an intention either grease his palms or cause loss of revenue to the bank which alone can be the reason for imposing such extreme punishment and in the absence of such allegation, the termination order passed by the 2nd respondent is excessive punishment and therefore prayed for setting aside the impugned orders.
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5.The respondents filed counter affidavit. Learned counsel for the respondents would state that the petitioner while working as Assistant-cum-Manager in charge in the Coronation Colony Branch of VRDCC Bank from 21.08.2003 to 06.08.2006, had committed various irregularities in granting revamped micro loan to women and misappropriated the amount of the bank. According to the learned counsel for the 2nd respondent, the following irregularities were committed by the petitioner:-
(i)38 loan applications were processed and they were sanctioned loan even without obtaining signature of the guarantor/surety in the loan applications and the loan amount would be Rs.1,51,175/-.
(ii)Loan was granted to 28 applicants without any pass order of the Branch Manager. The total loan amount sanctioned in such mode was Rs.1,02,556/-.
(iii)Eight loan applications were processed and loan was sanctioned without obtaining photograph and photocopy of the http: www.judis.nic.in Family Card. The sanctioned loan amount was Rs.23,900/-.
(iv)Loan was sanctioned to 104 members even without receiving any loan application and the sanctioned loan amount was Rs.4,38,192/- and accordingly, in violation of the periodical circulars and guidelines issued by the Management, the petitioner granted loan to the tune of Rs.7,15,823/- and therefore, he was charge sheeted stating that he had not followed the procedure contemplated by the bank while sanctioning the loan.
6.For the above irregularities, the petitioner was issued with a charge memo in [CASE NUMBER] dated 26.03.2007 and he had submitted his explanation on 25.04.2007 and as the explanation was not convincing and satisfactory, a domestic enquiry was ordered to be conducted. The petitioner participated in the domestic enquiry and submitted his written statement dated 15.03.2008. After elaborate enquiry, the enquiry officer submitted his report dated 29.03.2008, wherein, the petitioner was found guilty of two charges http: www.judis.nic.in framed against him. On the basis of the enquiry report, the petitioner was issued with a show cause notice dated 30.04.2008 requiring him to offer his explanation as to why he should not be imposed with the punishment as the charge against him was considered to be serious in nature. The enquiry report and other documents were sent along with show cause notice. Thereafter, the petitioner has sent an explanation dated 17.05.2008, wherein, he has requested to send the proceedings of the enquiry officer and other documents. According to the respondents, though the above documents are not at all relevant, the petitioner was furnished with those documents which he sought for on 16.06.2008. Subsequently, in spite of various reminders, the petitioner had not come forward with any explanation to the show cause notice.
7.Learned counsel for the respondents further submits that in addition to the domestic enquiry, the Special Officer of the bank has ordered to conduct an inspection of the concerned Branch and http: www.judis.nic.in submit the inspection report vide order in [CASE NUMBER] dated 04.05.2007 and accordingly after proper inspection of records, the Assistant General Manager(Administration) and the Assistant General Manager (Banking) has submitted their enquiry report dated 07.11.2007 wherein, various irregularities were found and the petitioner was saddled with the responsibility for the above malpractice. In the meanwhile, the petitioner submitted his resignation dated 05.08.2006 and the same was not accepted by the Management for the reason that the revamped micro loan sanctioned to various members has not been recovered and serious allegations were levelled against the petitioner. It was also alleged that the entire documents relating to the above loan was retained by the petitioner. On 06.08.2008, the petitioner was issued with the reminder to give explanation to the second show cause notice dated 30.04.2008 and the petitioner has submitted his explanation on 28.10.2008. Since the petitioner had not responded to the earlier show cause notice dated 30.04.2008, he was issued with another http: www.judis.nic.in second show cause notice dated 19.02.2009 requiring him to submit further explanation, if any. Subsequently, on 05.03.2009, the petitioner has sent a letter stating that he has already submitted his explanation dated 28.10.2008 and therefore, no further explanation is required and considering all those relevant facts based on the records, the petitioner was terminated from service. Challenging the said termination order, the petitioner filed a revision petition under [SECTION] of the [ACT] and the same was dismissed by the 1st respondent by order dated 08.01.2010, upholding the order passed by the disciplinary authority. According to the respondents, considering the loss sustained by the bank, the petitioner was imposed with the punishment of dismissal from service, as any other punishment would not commensurate with the seriousness of the charges levelled against the petitioner and therefore, prayed for dismissal of the writ petition.
8.Heard the learned counsel for the parties and perused the materials available on record.
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9.In the present case, perusal of the impugned order shows that the 1st respondent by merely observing that the petitioner was given opportunities to put forth his defence by issuing show cause notices along with the enquiry officer's report, for which, the petitioner also submitted his explanation and only after considering the same, impugned order of termination has been passed and therefore, the contention of the petitioner that without giving opportunity of personal hearing, the impugned termination order has been passed in violation of the principles of natural justice, is incorrect. It is well settled that whenever major punishments are imposed on the delinquent persons, the delinquent persons should be given personal hearing before imposing such punishment and in the instant case that has not been done and without hearing the petitioner, the 1st respondent has just confirmed the order of termination passed by the 2nd respondent, by passing a non speaking order. In this context, it is relevant to extract the observations made http: www.judis.nic.in in the decision reported in [PRECEDENT]
30. The denial of adherence to the rule of [ENTITY] at the appellate stage before departmental authorities by itself would show element of prejudice. The denial of hearing would per se cause prejudice to the delinquent officer. The principles of fairness would demand such a hearing because the records before the appellate authority could be voluminous, number of witnesses have been examined by either side in the departmental proceedings and the delinquent officer may be able to explain his version of the case and his stand to the appellate authority in a much better and effective manner if he was granted the hearing. To imagine that the appellate authority by itself would be able to critically examine the entire evidence and the record would be a view which could be more than imaginative than practical or pragmatic. To expect the appellate authority to minutely and critically examine the entire record without any proper assistance would be apparently a view which is more imaginative than practical or pragmatic.
31. The various pronouncements of the Hon'ble Supreme Court of India as well as the High Courts have time and again lamented the need for compliance of such obligations arising out of principles of natural justice even in the absence of specific stipulation in the statutory provisions. It is the bounden duty of the appellate authority to give complete and effective decision in a judicious manner and upon proper application of mind. We are of the considered view that such hearing is bound to render assistance to the authority concerned without http: www.judis.nic.in causing any prejudice to the other side.
32. To provide an opportunity to the delinquent officer to ventilate his views before the appellate authority and to satisfy the conscience of the authority in relation to the findings arrived at and the punishment imposed by the disciplinary authority, would be in consonance with the basic rule of law and principles of natural justice.
36. Mere appreciation and scrutiny of record without any assistance of the same with assistance and argumentative submissions based on record are likely to have totally a different impact on the mind of the authority and may be on its ultimate result. Dismissal or removal from service is the harshest punishment which the disciplinary authority can impose. Thus, its scrutiny by the appellate authority must pass through hard tests of law, and fairness. In the facts and circumstances of given case, the mere argument of inconvenience and harsh realities resulting from imposition of such punishment may effect the mind of the authority concerned and show, that punishment sought to be inflicted or inflicted upon, is unguided for the reasons and fairness and is arbitrary. If the facts and circumstances of the case permit, the law would aid to avoid such result rather than permit the same.
The arguments advanced during the personal hearing can bring hidden and obscure things to the light of reason, render them clearer and help determination in consonance with justice and fair play. Such an approach is in no way innovative and had been accepted long back in the maxim arguments ignota et obscura ad lucem rationis proferunt et reddunt splendida : (Arguments bring things hidden and obscure to the light of reason and render them, clear). http: www.judis.nic.in
10.In the present case, it is the contention of the petitioner that he has sanctioned loan only at the instance of his higher officials and it is also stated that in similar circumstances, while the very same 2 nd respondent in the case of one [ENTITY], Assistant Manager and Branch Manager in-charge, Puliyampatti Branch, has awarded punishment of stoppage of increment for one year without cumulative effect, the petitioner alone was singled out and awarded with most extreme punishment of dismissal from service. As rightly contended by the learned counsel for the petitioner, the charges never stated that he had wantonly and deliberately with an ulterior motive indulged in such activities with an intention to cause revenue loss to the bank which alone can be the reason for imposing such extreme punishment and in the absence of such allegation, the punishment of termination passed by the 2nd respondent is excessive punishment. Further, the respondents also not stated any reason why similarly placed person with the same set of charge was let off with the lesser punishment of increment cut while the petitioner http: www.judis.nic.in who is also similarly placed was inflicted with the major punishment of dismissal from service which act itself creates suspicion of mala fide intention behind the action of the respondents. Therefore, the above contention of the petitioner in the opinion of this Court deserves acceptance and the petitioner should also be given similar treatment.
11.On the issue of judicial interference of punishments imposed by the Disciplinary or Appellate Authority, the Supreme Court has consistently held that normally, the punishment should not be disturbed by the High Court or Tribunal, except in appropriate cases after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate. In this context, some of the judgments of the Supreme Court are reproduced hereunder:-
(a) In [PRECEDENT], the Supreme Court at Paragraph 18 held as follows:
http: www.judis.nic.in "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline.
They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(b) In [PRECEDENT], the Supreme Court considered a similar issue of removal from service of a member of a Railway Protection Force. The High Court, commuted the punishment of removal from service for certain acts of misconduct. While explaining the scope of judicial interference of punishments, the Supreme Court has set out certain relevant factors to be taken into account, while evaluating as to whether the punishment was grossly or shockingly disproportionate. http: www.judis.nic.in The Supreme Court held that normally, the punishment imposed by the disciplinary authority should not be disturbed by the High Court or a Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the Department/Establishment in which the delinquent person concerned works.
12.Applying the ratio in the above judgments to the circumstances of the case on hand, this Court is of the view that the punishment of dismissal imposed on the petitioner is shockingly disproportionate to the charges framed against the petitioner and therefore, this Court can interfere with the same. http: www.judis.nic.in
13.As rightly contended by the learned counsel for the petitioner that when the very same allegations have been enquired into by the enquiry officer, it is not open to the respondents to conduct successive enquiries into the same set of facts by the Assistant General Manager(Administration) and the Assistant General Manager (Banking) which is nothing but an arbitrary exercise of power. In this context, it is useful to consider the following decisions.
(a) In [PRECEDENT], it has been held as follows:-
15. An employer who desires to initiate the disciplinary action, should bestow all his attention while framing the charges and once the charges were framed against the delinquent employee, the employer should stand or fall by the charges framed against the delinquent and can never be permitted to revive the charges after the conclusion of the whole proceedings and allowed to contend that the proceedings can be revived by framing a new set of charges."
(b) In [PRECEDENT], at Paragraph 18, the Supreme Court held that second enquiry on the same set of facts is not maintainable.
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14.In the light of the above discussions and decisions, the order dated 06.04.2009 made in [CASE NUMBER] passed by the second respondent and confirmed by the first respondent vide [CASE NUMBER]Pa.1 dated 08.01.2010 stand quashed and the respondents are directed to pay all the attendant benefits accrued to the petitioner, within a period of six weeks from the date of receipt of a copy of this order.
With the above direction, this Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No 29.11.2018 Internet : Yes / No To
1)The [ENTITY].
2)The Special Officer/Joint Registrar, Virudhunagar Dt.Centralm Co-op Bank Ltd., Virudhunagar.
http: www.judis.nic.in [ENTITY], J bala 29.11.2018 http: www.judis.nic.in