In the High Court of Judicature at Madras Dated:02.08.2007 Coram The Honourable Mr.Justice P.JYOTHIMANI Writ Petition No.14205 of 1998 R. Muthukrishnan .. Petitioner ..vs.. 1.Indian Overseas Bank rep. By its Chairman and Managing Director Central Office 763 Mount Road Chennai 600 002. 2.The Executive Director Indian Overseas Bank Central Office 763 Mount Road Chennai 600 002. 3.The General Manager Appellate Authority Indian Overseas Bank Central Office 763 Mount Road Chennai 600 002. 4.Mr.A. Gnanappa Deputy General Manager Indian Overseas Bank Chokkikulam Madurai 625 002. 5.S. Rajaraman Chief Officer Indian Overseas Bank Ramakrishnapuram New Delhi. 6.S. Lawrence Inspector Inspection Department Indian Overseas Central Office, 763, Mount Road Madras 600 002. ..Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Manadamus calling for the records of the records, of the Executive Director the 2nd Respondent herein bearing No. DO; ED; (RUS); RA 1001 dated 10/7/96 and of the Apellate Authority the General Manager, Central Office, I.O.B. The 3rd Respondent herein relating to his order bearing No. DO; GM;ALC; AA:15:97 dated 10.11.1997 which confirmed the order of the Disciplinary Authority viz., The Deputy General Manager, Vigilence Department Central Office, I.O.B. Bearing No. D.O. DGM (NR): 13411: DA dated 31/3/1997 and quash the said orders dated 10.07.1998 and 10.11.1997 and consequently direct the first respondent to forthwith reinstate the petitioner with continuity of service, backwages and all attendant benefits including promotion etc. For Petitioner : Mr. B. Ravi for M/s. R.Subramanian For Respondents : Mr. K. Srinivasamoorthy 1 to 5 for M/s. N.G.R. Prasad .. ORDER This writ petition is filed challenging the order of the Deputy General Manager, Indian Overseas Bank, Vigilance Department, being the disciplinary authority dated 31.03.1997, as confirmed by the Appellate Authority, viz., General Manager, the third respondent by order dated 10.11.1997 and by the subsequent order of the second respondent, the Executive Director dated 10.07.1998. 2. The short facts leading to the filing of this case are that the petitioner has joined in the services of the respondent Bank in March, 1983 on the basis of selection by the Banking Service Regulation Board, Southern Region, Madras. He was initially appointed as a Probationary Agricultural Officer at Pachamalaikottai near Nilakottai, Madurai District. He has completed his probation as Agricultural Officer in March, 1984 and thereafter, the said post was re-designated as Assistant Manager (Agriculture). From March, 1984 to November, 1987, the petitioner served in the said capacity in Ayakudi Branch and thereafter, transferred to Tiruppullani Branch, Ramnad District in November, 1987. 2(a). Since the petitioner was posted in the rural Branches, he was involved in the implementation of Integrated Rural Development Programme (in short, IRDP) etc. promoted through the Branches of Nationalised Banks located in rural areas. As per the said Scheme, the Bank identifies people engaged in various occupations like fishing, sheep rearing, agriculture, etc. who are eligible to get loans. The loans are granted against hypothecation of fishing nets in the case of fishermen, crops in the case of agriculturists and cattle and sheep in the case of people engaged in rearing cattle or sheep and the hypothecated goods or units are insured. https://hcservices.ecourts.gov.in/hcservices/ 2(b). The repayment of loans are deferred for a considerable period and the beneficiaries of the said loans are the illiterate and un-educated people. According to the petitioner, Agricultural Officer like him identifies persons for the advancement of loan after conducting a pre-sanction inspection, which involves verification whether the person has sufficient experience in the line of activity for which the loan is being advanced and whether he/she is a bona fide resident of the area. It is on the recommendation of the Agricultural Officer to the concerned Branch, the loans are sanctioned. 2(c). It is the case of the petitioner that in respect of loans for the purchase of sheep and milch animals, the loans are disbursed through the Purchase Committee of which the Agricultural Officer is a constituent member and the amounts are directly disbursed to the sellers. It is the further case of the petitioner that for the purpose of identifying the persons eligible, he always relied on the advice of the Block Development Officer, the Commissioner of the Panchayat Union and the Gramsevak, who are all Government officials. 2(d). The petitioner worked in Thiruppullani Branch between October, 1987 and November, 1990 and during that period he was also deputed as Agri-officer to six other Branches, viz., Ramnad, Uchipuli, Thangachimadam, Alagankulam, Pudumadam and Kilakkarai, and therefore, he was having heavy work load. He was in charge of implementing the IRDP Scheme and other agricultural lending Schemes in the aforesaid Branches and on certain occasions he had to do the clerical duties and to act as Branch Manager also due to the exigency of the situation. 2(e). It is his case that during the period of three years at Thiruppullani, he has spent 1/3rd of his tenure by acting as a Branch Manager of that Branch. In December, 1990, he was transferred to Keeranur Branch of Pudukkottai District and thereafter, in 1991, he was transferred to Avudayarkoil Branch. While he was working in Avudayarkoil Branch, he was placed under suspension by the Deputy General Manager by his order dated 24.09.1991. Thereafter, he was issued with charge memo by the same officer on 30.09.1991. In the said charge memo, four charges were framed against the petitioner, all are relating to the loans advanced for fishing nets and sheep loans between 1989 and 1990, when he was working in Uchipuli Branch. The petitioner has submitted a detailed explanation to the said charges on 23.12.1991. A preliminary enquiry was held in respect of the said charges on 04.06.1992. The enquiry in respect of the said charges was conducted between 04.12.1992 and 07.09.1994 and the findings of the Enquiry Officer along with the letter of the Disciplinary Authority were served on the petitioner on 07.04.1995. 2(f). In the meantime, a second charge memo was issued to the petitioner on 20.05.1992, framing 12 charges and they relate to the period in which he worked at Thiruppullai Branch. The petitioner has submitted his explanation, in respect of which there was a preliminary enquiry held on 01.09.1993 and according to the petitioner, in respect of the said second charge, the https://hcservices.ecourts.gov.in/hcservices/ enquiry was adjourned to 12.12.1994. 2(g). Likewise, a third charge memo dated 26.03.1993 was issued to the petitioner containing 9 imputations relating to dairy loans, fishing net, crop loans during 1988-1989, when the petitioner was working in Thangachimadam Branch. Preliminary enquiry was conducted in respect of the said charges on 30.04.1996 and subsequently the enquiry was adjourned to 09.05.1996 and 09.08.1996 and the petitioner could not participate in the enquiry due to his ill-health. 2(h). The fourth charge sheet was issued to the petitioner on 11.10.1993, based on an investigation report submitted by one Lawrence, relating to fabrication of purchase vouchers, loan for accommodation purposes and misappropriation of loan proceeds when the petitioner was working in Keelakkari Branch and they also relate to sheep loans, fishing net loans, etc. 2(i). It is the case of the petitioner that he has submitted defence arguments, in brief, in respect of the said charge sheet on 02.12.1996. According to the petitioner, the enquiry in respect of the said charge was started on 08.07.1994 and adjourned to an unspecified date and thereafter, again adjourned to 13.09.1996. In respect of the same, enquiry report was submitted on 26.12.1996. It was, thereafter, the Disciplinary Authority, by order dated 31.03.1997, has passed the final order of punishment of dismissal from service in respect of all the charges. Aggrieved by the said order, the petitioner has filed an appeal before the General Manager on 12.06.1997, which was also dismissed on 10.11.1997. His further representation to the second respondent dated 15.12.1997 was also dismissed on 10.07.1998 and he has filed the writ petition challenging the said orders. 2(j). According to the petitioner, while he has participated in the enquiry in respect of first charge dated 30.09.1991, he was unable to participate in the enquiry in respect of other charges and they were held ex parte. According to the petitioner, the procedure followed by the Enquiry Officer is defective and even in respect of the first charge, wherein he has participated in the enquiry, the Enquiry Officer has not dealt with the defence in a proper manner and therefore, the enquiry report is not fair. The consecutive four charges framed against the petitioner have resulted in the inability of the petitioner in participating in enquiry in respect of other charges in a full fledged manner due to ill-health and therefore, the enquiries were held ex parte and according to the petitioner, the enquiry is illegal. According to the petitioner, when the charges include the loans that have been sanctioned to non-existing persons, the Bank has not let in any evidence complaining of short payment and the charges have not been demonstrated properly. He would also assail the impugned orders on the ground that the allegation of misappropriation has not been given with proper details and even the quantum of misappropriation has not been mentioned. It is also the case of the petitioner that even if the Agricultural Officer has recommended the loan, the Branch Manager is vested with power of verification and therefore, the ultimate power to https://hcservices.ecourts.gov.in/hcservices/ granting loan lies with the Branch Manager. 2(k). It is also his case that excessive work which has been imposed on the petitioner is not taken into consideration both by the Enquiry Officer as well as the Disciplinary Authority while awarding punishment. Further, the domestic enquiry was not done in a proper manner. According to him, the charges are misconceived and no independent witnesses were examined by the Bank to prove the charges. In respect of Charges 3 and 4, in spite of the request by the petitioner that he was ill, the Enquiry Officer has conducted enquiry ex parte. The order of the appellate authority is vitiated by non-application of mind. That apart, it is the case of the petitioner that inflicting of maximum punishment of dismissal is passed without application of mind. 3. The respondent Bank has filed a counter affidavit. It is the case of the respondent Bank that as an Agricultural Officer attached to a Branch, the petitioner plays a vital role in various stages of granting loan. It is he, who verifies the genuineness of the borrowers, their addresses and their line of activity and his duty includes documentation, conducting pre-post sanction, etc. It is also made clear in the counter that in the absence of recommendation from the Agricultural Officer, the Branch Manager does not grant any loan. The respondent Bank would submit that in the enquiry held against the petitioner it was proved that the petitioner did not conduct proper pre-post sanction inspection in respect of recommending persons for loans, which resulted in loss to the Bank. 3(a). It is also denied that the workload of the petitioner was heavy. Even if some more works are entrusted, it does not exonerate the duty of the petitioner being an Agricultural Officer to act as per the instructions and scheme. It is also stated that the charges framed against the petitioner include that he granted five fishery loans of Rs.5,000/- each for purchase of fishing nets to various borrowers and it was found on investigation that such borrowers are not in existence. In respect of granting of certain other loans it was revealed that the petitioner has disbursed to the borrowers only a part amount of the loan and the balance amount was misappropriated. In respect of the payment of cost of the fish nets, which he is expected to pay only to the sellers, who are genuine dealers, it was found on investigation that he has disbursed amounts to various persons, who are not at all dealers in fishing nets, and in that way also he has misappropriated and mis-utilised the funds. It is also stated that the petitioner has granted 56 sheep loans, which were all mis-utilised and the purchase vouchers relating to the said loans were fabricated. It was due to the reason that the charges were very serious, charge sheets were issued against the petitioner directing him to appear for enquiry and in that, the Enquiry Officer held that the charges were established, which were accepted by the Disciplinary Authority which resulted in dismissal order. It is also denied that there is any enmity between the petitioner and Shri Rajaram, who has investigating the matter. It is also stated that it was Shri Gnanappa, who investigated the irregularities in respect of Uchipuli Branch wherein serious misconduct was found, and https://hcservices.ecourts.gov.in/hcservices/ therefore the allegations of mala fide against respondents 4 and 5 are unfounded. 3(b). Shri Gnanappa, 4th respondent herein, who is an Officer in Zonal Office, Madurai, deputed to investigate the loan transactions recommended by the petitioner and the investigation report was marked as Ex.MW.123 during the enquiry, which has brought out the very serious nature of the misconduct committed by the petitioner. It is the case of the respondent Bank that enquiry in respect of first charge dated 30.09.1991 was held on 04.12.1992, 01.09.1993, 03.09.1993, 01.02.1994, 02.02.1994, 03.02.1994, 03.07.1994 to 30.07.1994, 03.09.1994 and 07.09.1994. The petitioner was given full opportunity in the enquiry. On behalf of the Bank two witnesses were examined and 49 documents were exhibited. The petitioner has examined one defence witness and marked 50 defence documents. The non-production of the borrowers as witnesses will not exonerate the petitioner from the liability when charges are proved through witnesses and documents. The findings given by the Enquiry Officer are cogent and clear on oral and documentary evidence with reasons. The respondent Bank also submitted that simply because the police or CBI has not taken any action against the petitioner, it does not mean that the department can not proceed with disciplinary proceedings. The departmental enquiry is in respect of misconduct and not in respect of criminal activity. 3(c). In respect of the second charge memo dated 20.05.1992, the petitioner attended only one preliminary hearing and thereafter, in spite of notices received by him for subsequent hearings, he failed to attend the same and therefore, the enquiry had to be conducted ex parte. The opportunity given to the petitioner has not been availed of by him. The petitioner has not produced any proof to the Enquiry Authority that he was sick. In fact the petitioner has written to the Enquiry Officer that he will not participate in the enquiry. In respect of the second charge, enquiry was held on 12.12.1994, 07.02.1995, 14.03.1995 to 16.03.1995, 12.04.1995, 22.6.1995 and 24.06.1995 and the petitioner has wilfully avoided attending enquiry on those days. However, the petitioner has submitted his defence in brief and the same was considered by the Enquiry Officer and the Disciplinary Authority while arriving at the conclusion. The charges framed against the petitioner under the second charge sheet dated 20.05.1992 were found to be established. 3(d). In respect of the third charge memo dated 26.03.1993, which relates to Thankachimadam Branch, the petitioner has recommended various dairy loans to non-existing persons, with the result, the loan proceeds were misappropriated by the petitioner. It was also found that the animals were not purchased and the purchase vouchers are found to have been fabricated by the petitioner. He has also recommended loans for milch animals and the petitioner has misappropriated the amount also. The petitioner has also accepted quotations for fishing nets from the persons who were not dealers of the same. It was also found that some of the persons for whom fishing net loans were granted at Thangachimadam Branch were found to have availed of fishing net https://hcservices.ecourts.gov.in/hcservices/ loans from Tiruppullani Branch also, in which the petitioner was officer-in-charge of Agricultural advances. Therefore, it was a clear case of unlawful recommendations by the petitioner for undue pecuniary advantage. The preliminary enquiry was held on 30.04.1996 and since the petitioner did not participate, one more opportunity was given by adjourning the same to 09.08.1996. Even on that day, he failed to appear and the next hearing was held on 12.09.1996 and 20.09.1996 and the petitioner has not chosen to attend the enquiry on the said dates, and therefore, the enquiry had to be conducted ex parte and the Enquiry Officer has conducted the hearing in a fair manner and found that all the charges framed against the petitioner were established. 3(e). In respect of 4th charge dated 11.10.1993, which relates to Keelakkarai Branch, the respondent Bank states that it was in respect of granting of sheep loans and it was found that purchase vouchers were fabricated. That also was relating to recommendation of loan to non-existing persons in respect of fishnet loans. Again in respect of sheep loans, animals were not purchased and the loan proceeds were mis-utilised. The investigation conducted by the 6th respondent Shri Lawrence brought out the serious irregularities of the petitioner. Having committed such irregularities, the petitioner attributed mala fide on the said Lawrence. The petitioner has failed to appear before the Enquiry Officer and the Enquiry Officer found clinching oral and documentary evidence and ultimately the Disciplinary Authority has applied his mind and passed the order, which is perfectly in order. The Appellate Authority also considered the order of the Disciplinary Authority and rejected the appeal in its proper perspective. Therefore, according to the respondent Bank, sufficient opportunity has been given to the full possible extent and the enquiry cannot be said to be perverse or against the principles of natural justice. 4. Mr. B. Ravi, learned counsel appearing for the petitioner would vehemently contend that the entire enquiry proceedings are vitiated due to non-application of mind by the Enquiry Officer. He would also contend that the petitioner was not the sanctioning authority and he was only a recommending authority and ultimately, the Branch Manager, who sanctioned the loan had the responsibility of verifying the correctness of the recommendation. He would further contend that the Enquiry Officer has not analysed the evidence in a logical manner and the relevant objections have not been carefully considered by the Enquiry Officer. He would also submit that more than 70% of the accounts referred to the charge sheet are not connected with the petitioner. He further submitted that there has been an undue delay in conducting enquiry. On the other hand, the petitioner requested time on the ground of ill-health and it was not considered and the the enquiry was proceeded ex parte. The entire charges were in violation of the guidelines issued under IRDP Scheme. It is also his contention that the Disciplinary Authority has not considered the relevant materials. He also submitted that the Enquiry Officer and the Disciplinary Authority have failed to follow the mandatory provisions of Service Rules. In effect, his contention is that the Disciplinary Authority has not given proper opportunity and also not acted as per the regulations governing https://hcservices.ecourts.gov.in/hcservices/ the service conditions of Bank employees. He would also submit that the Enquiry Officer is acting as a quasi-judicial authority and therefore, he should act in a proper manner and he cannot shift the burden of proof and reject the relevant testimony based on surmises and conjectures. In support of it, he would rely upon the judgement of the Supreme Court reported in 2000 (6) SCC (L&S) 840 (Narinder Mohan Arya v. United India Insurance Co.Ltd.). He would also submit that the appellate authority has reproduced the verbatim findings given by the Disciplinary Authority and therefore, according to him, it is liable to be set aside. He would also rely upon the judgement of the Supreme Court reported in 2006 (3) CTC 669 (Director (Mkt.), Indian Oil Corp. Ltd. v. Santosh Kumar). He would argue that inasmuch as four different charges have been framed at different points of time, it is the duty on the part of the Enquiry Officer as well as the Disciplinary Authority to go into the minute details of each and every one of the charges and also the imputations and come to a conclusion that each and everyone of the charges framed against the petitioner has been proved. In the absence of minute details, the disciplinary proceedings are to be held as violative of the principles of natural justice. 5. On the other hand, Mr.K.Srinivasamoorthy, learned counsel appearing for the respondent Bank would submit that the loans as per the said Scheme are granted based on the recommendations of the Agricultural Officers. He would also submit that the petitioner being an Agricultural Officer is one of the members of the Committee, who identify the persons eligible for loans under the Scheme. The learned counsel has also brought out the various discrepancies made by the petitioner in recommending the persons for loan and he has also brought out some of the instances wherein the petitioner has recommended very same persons in respect of various Branches under his control and therefore, on the face of it the conduct of the petitioner cannot be taken lightly. He would submit that the Enquiry Officer has followed the procedure as per the regulations and proper opportunity was given and if the petitioner failed to avail the opportunity, he cannot question the enquiry on the basis of principles of natural justice. He would also submit that in the domestic enquiry what is required is sufficiency of evidence on the prima facie basis and the preponderance of evidence is sufficient to come to a conclusion that the delinquent is involved. 5(a). To substantiate his contention, he would rely upon the judgement in State of Haryana v. Kattan Singh (1982 I LLJ 46) and State of U.P. & Ors. v. Nand Kishore Shukla & Anr.(1996 (2) LLJ 672). He would also submit that in these sort of cases where the customers have the contact with the Bank, the customers need not be involved in enquiry, and he would rely upon Executive Committee, SBH, Hyderabad vs. D. Dhaneswara Rao (1996(2) LLJ 272). He would also submit that when the Disciplinary Authority agrees with the Enquiry Officer, it is not necessary for the Disciplinary Authority to go into and discuss each and every minute points while passing the final orders. In that regard he would rely upon the judgement rendered in 1996 (1) LLJ 288 (S.B.B.& J & Ors. v. https://hcservices.ecourts.gov.in/hcservices/ S.P.D.G. v. P.D.G. v. S.B.B. & J. & Ors.) He would also submit that the contention of the petitioner that the Enquiry Officer as well as the Disciplinary Authority has not gone into the minute details of each and everyone of the charges cannot be raised in this writ proceedings under Article 226 of the Constitution, since High Court cannot re-appreciate the evidence. He would also submit that when the appellate authority concurs with the findings of the Disciplinary Authority, there is no necessity for re- appreciation of evidence and to substantiate the same, he relied upon the judgement rendered in 1994 I LLN 427 (I.O.B. v. R.Sathyamoorthy). 5(b). He would also submit that the disciplinary proceedings and departmental enquiry cannot be compared with the criminal cases and the nature of proof required in disciplinary proceedings is different from that of criminal cases, for which he relied upon the judgement of the Apex Court in G.M. Tank vs. State of Gujarat (2006 (5) SCC 446). He would ultimately submit that the entire appraisal of the documents would show that the Disciplinary Authority has acted in a most bona fide manner, and on the other hand, the petitioner has committed grave misappropriation of the funds of the Bank cannot complain of the procedures which have been followed in accordance with law by both the Enquiry Officer, Disciplinary Authority and Appellate Authority. According to him, the findings of the Disciplinary Authority are not perverse and the same were arrived at only after consideration of the entire facts. He would submit that there is no merit in the contention of the petitioner that when the Manager is the authority to sanction