IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19-11-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.10904 of 2001 M. Ramanujam ... Petitioner Vs. 1. The Chairman & Managing Director, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 600 002. 2. The General Manager, Vigilance Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 3. B. Swaminathan, General Manager, Human Resources Development Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 4. The General Manager (Supervisory Section), P & A Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 5. Chief Regional Manager, Indian Overseas Bank, Regional Office (Metro), 807, Anna Salai, Chennai -2 6. Senior Manager, Indian Overseas Bank, 65 Arunachala Naicken Street, Chintadripet Branch, Chennai- 2. ... Respondents The prayer in the writ petition is to issue a writ of Certiorari calling for the records of the respondents leading upto the first respondent's order dated 22.7.1994 under Ref.No.DO/GM/NPN/DA/18:94 and quash the same as illegal and invalid. For Petitioner : Mr.B.Balachander, for M/s.Ashok Menon https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.K.Srinivasamurthy,for N.G.R.Prasad for M/s.Row & Reddy O R D E R This writ petition is filed challenging the order of dismissal of the petitioner from the service of the Indian Overseas Bank, passed by the second respondent dated 30.8.1993, confirmed in the order of the appellate authority/4th respondent dated 22.7.1994. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner joined as Cashier in Indian Overseas Bank on 9.10.1967 and he was promoted to the Officer Cadre in June, 1979, further promoted as Deputy Manager in Middle Management Cadre-I and posted at Chinthadripettai branch by order dated 10.10.1988. Petitioner was again promoted as Acting Senior Manager and worked in that capacity from 19.6.1989 to 17.9.1989 and thereafter transferred. (b) On 13.11.1989 a communication was issued by the Zonal office of the Indian Overseas Bank stating that the petitioner guaranteed a cash credit loan on 14.12.1987 towards purchase of Tourist Taxies from the State Bank of India, Adyar, Chennai-20 and called upon the petitioner to submit his explanation. The petitioner submitted his explanation on 30.12.1989. (c) According to the petitioner, on 17.1.1990 he went to his native place at Pudukkottai to attend a function and while travelling in a car, he met with an accident on 27.1.1990 near Trichy- Pudukkottai highways and he was hospitalised and underwent minor surgery in his forehead. Therefore he took sick leave upto 15.7.1990 by submitting leave letters with medical certificates. (d) On 2.2.1990 another memo was issued by the 5th respondent office through the 4th respondent and called upon the petitioner to submit his written explanation in respect of his Cheque bearing No.394103 dated 12.12.1989 for a sum of Rs.1,400/- which was issued to M/s.City Investment and Finance Limited, Teynampet, Chennai-18, which was dishonoured for the reason "post dated". The allegation was that after the instrument was presented for collection, the date of the cheque was altered as '31.1.1990'. According to the petitioner, he paid the said amount of Rs.1,400/- on 27.2.1990 in lieu of the above cheque and also paid a sum of Rs.8,400/- on 10.7.1990 as full settlement of his dues and according to the petitioner the said fact was intimated to the regional office through his letter dated 24.6.1992. https://hcservices.ecourts.gov.in/hcservices/ (e) Before the petitioner could report for duty after availing the sick leave, he was placed under suspension by order dated 14.3.1990 on the ground that the petitioner has not closed the credit facility in respect of the loan availed by his wife Mrs.Bhavani from the State Bank of India, Adyar Branch; M/s.Sundaram Finance Kotturpuram; and TNSC Bank, Kotturpuram, which have been guaranteed by the petitioner. The petitioner submitted his explanation on 14.5.1990 and stated that the said tourist service could not be closed down on account of their prior commitments. (f) A charge memo was issued to the petitioner on 20.10.1990 in respect of 17 allegations, allegedly taken place from 1.3.1989 to 31.12.1989, i.e., wrongful loss to the bank to the extent of Rs.57,021.23, and charges 1 to 5 were framed and he was also accused of habitual indebtedness. (g) Enquiry was ordered and during the enquiry, petitioner prayed for permission for engaging an advocate to appear on behalf of him, which request was rejected by the Bank on 22.3.1991. The Enquiry Officer concluded the enquiry and on 24.8.1991. The enquiry was re-opened at the request of the petitioner and posted on 28.8.1992. On that date petitioner produced xerox copies of defence documents in support of his contentions, which were not accepted, as original documents alone can be filed. The enquiry officer submitted his report and thereafter on 30.8.1993 the petitioner was dismissed from service. (h) Petitioner filed appeal under the Indian Overseas Bank Employees (Conduct, Discipline and Appeal) Regulations, 1976 on 1.10.1993 and he was given personal hearing on 5.7.1994 and the appeal was dismissed on 22.7.1994, which was served on the petitioner on 30.11.1994. (i) The said order of the appellate authority dated 22.7.1994 is challenged by filing this writ petition in the year 2001 and in the affidavit explanation is given for the delay in approaching this Court. This Court admitted the writ petition on 9.7.2001. (j) The grounds raised in the writ petition are that the co- signatory to many of the vouchers was not proceeded and an erroneous finding was given by the Enquiry Officer to the effect that the petitioner misappropriated a sum of Rs.60,021.23; and that a sum of Rs.400/- received for payment of telephone charges of the manager's quarters, Rs.2,669.30 paid towards electricity meter charges, etc, have not been properly appreciated and the defence documents filed were not accepted as they were xerox copies. 3. The respondents have filed counter affidavit and contended that due to the delay and laches on the part of the petitioner in https://hcservices.ecourts.gov.in/hcservices/ filing the writ petition for seven years, the same is liable to be dismissed. On merits it is stated that as per the Bank's Service Rules, legal practitioner cannot be allowed in domestic enquiry and the petitioner had effectively participated with his defence representative in the enquiry proceedings and cross-examined the Bank witnesses, which could be found from the Enquiry Officer's report dated 26.12.1992. The Enquiry Officer's finding was accepted by the disciplinary authority after considering the remarks of the petitioner and the same cannot be re-appreciated in writ proceedings, particularly when the appellate authority also concurred with the findings of the disciplinary authority and confirmed the punishment. The petitioner committed financial irregularities in the banking transactions and misappropriated the bank funds and therefore the petitioner has lost the confidence of the Bank. 4. The learned counsel for the petitioner submitted that denial of request of the petitioner seeking assistance of a counsel amounts to denial of natural justice. The petitioner acted bona fidely and there is no misappropriation on his part. The petitioner has served for about 26 year in the bank and he reached the age of superannuation on 9.10.2005. Therefore reinstatement is not possible at this stage and some leniency may be given to claim the retirement benefits considering his long number of years of unblemished record of service. The learned counsel also relied on the Indian Overseas Bank (Employees') Pension Regulations, 1995, particularly Regulation 31, which came into force from 1.11.1993, which provides for sanction of compassionate allowance not exceeding 2/3rd of the pension, which would have been admissible to employees on the basis of the qualifying service rendered upto the date of dismissal, removal or termination, which can be sanctioned as in deserving cases on special considerations. Therefore, at least, the petitioner may be directed to be given the said compassionate allowance as per Regulation 31(1)(ii). 5. The learned counsel for the Bank on the other hand submitted that the petitioner misappropriated the funds of the bank. The request of the petitioner seeking assistance of an advocate having been rejected as per the service rules and the petitioner having availed the services of another person, he is not entitled to now contend that by not permitting the petitioner to engage the counsel he was denied reasonable opportunity. The learned counsel also submitted that once misappropriation is proved, dismissal could be the only punishment, particularly in banking sector, which deals with public money. Insofar as the compassionate allowance claim made by the learned counsel is concerned, the petitioner's dismissal being prior to 1.11.1993, the said regulation cannot be made applicable to the petitioner. 6. I have considered the rival submissions made by the learned counsel for the petitioner as well as learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ respondent Bank. 7. The crux of the charges levelled against the petitioner are as follows: "The debits relate to the period 1.3.89 to 31.12.89. In respect of your conduct as above, the following charges are framed against you: 1. You had drawn cash on various dates by debiting the suspense and profit and loss accounts as shown in Annexure-A to this charge sheet ostensibly for payment of telephone/ electricity/ stationery bills pertaining to office, whereas you had not utilised the amount for the purpose for which it was drawn. Thus, it is charged that you had misappropriated the amount, by deliberately drawing the amount in cash for your own use. 2. You unauthorisedly debited the suspense, 'C.D.S.' and profit & Loss accounts as shown in Annexure-B and allowed cash to be drawn from the Bank without accounting for the same. You had thus caused wrongful loss to the Bank. 3. You had deliberately avoided posting of vouchers in suspense account with a view to escape the attention of the Manager. Contras were marked by you wrongly in suspense account register. While carrying over the entries therein as at the end of the half years, you had not extracted all the outstanding entries with an intention to conceal your elimination of unauthorised debits made by you earlier. Details are given in Annexure-C hereto. 4. You had availed leave encashment of salary amounting to Rs.9,457.63 on three occasions as per Annexure-D hereto whereas you are not entitled for the same and thus misappropriated Bank's money. 5. With regard to the payment of bonus arrears to staff aggregating Rs.31,000/- you had credited the amount to suspense account twice, one to the debit of R.O.- Madras account on 21.6.89 and another to the debit of P & L account on 29.6.89 in order to eliminate the salary/L.F.C. Advance taken by you on 15.4.89 and 24.4.89 https://hcservices.ecourts.gov.in/hcservices/ aggregatingRs.28,000/- to the debit of suspense account. You had thus misappropriated bank's money. 6. You had incurred huge debts from several parties as per Annexure-E hereto and thus committed habitual indebtedness. You had thus caused wrongful loss to the bank and made wrongful gain to yourself to the extent of Rs.57,021.23. It is thus charged that by your above acts, you had failed to ensure and protect the interest of the bank and discharge your duties with utmost honesty and integrity." The petitioner not utilised the amount drawn towards payment of telephone/electricity/stationary bills of the office and deliberately drew the amounts in cash for his own use and thereby misappropriated the amounts; the petitioner availed leave encashment of salary amounting to Rs.9,457.63 on three occasions even though he is not entitled for the same and thus misappropriated the bank's fund; payment of bonus arrears to staff was credited in suspense account twice and thereby misappropriated bank's fund and there was a wrongful loss to the bank and wrongful gain to the petitioner to an extent of Rs.57,021.23. 8. The petitioner's request to get assistance of a legal practitioner was considered by the Bank in terms of its Service Rules and rejected. The said order was accepted by the petitioner and engaged a representative to assist him in the domestic enquiry. Thus, the petitioner cannot now contend that the said denial is not valid. The very issue was considered by the Supreme Court in the decision reported in AIR 2010 SC 3055 (Dinesh Chandra Pandey v. High Court of Madhya Pradesh). In paragraph 9 the Supreme Court held thus, "9. ........... The request of the appellant has been rightly rejected by the disciplinary authority. Furthermore, the application was made on 7th December, 1988 itself and thereafter the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority declining assistance of an advocate. On the contrary, he participated without any further protest in the entire departmental enquiry and raised no objections. The Enquiry Officer conducted the proceedings in a just, fair manner and in accordance with rules. In fact, there is no challenge to that aspect of https://hcservices.ecourts.gov.in/hcservices/ the matter. .........." Thus, the said ground raised by the petitioner is unsustainable. 9. The Enquiry Officer, followed the principles of natural justice by providing opportunity to the petitioner to cross-examine the witnesses with the help of a defence assistant. The Enquiry Officer held that the charges other than the allegation of Rs.1000/- were proved in his report dated 29.12.1992. Before accepting the enquiry officer's report the disciplinary authority called for remarks from the petitioner and after considering the remarks of the petitioner dated 1.5.1993 as well as the gravity of the charges, the disciplinary authority took a decision and dismissed the petitioner from service. In the remarks submitted by the petitioner dated 1.5.1993, the petitioner admitted that the errors might have been committed due to tight schedule of work. In banking service not only integrity but also devotion to duty shall be strictly followed. 10. The petitioner's request to accept the xerox copies of defence documents produced by him was negatived by the Enquiry Officer. Petitioner's conduct in not filing a petition to summon the originals of the defence documents from the bank shows that he was not very much particular in calling for the documents and verify the same with xerox copies produced. Hence the petitioner cannot now say that not accepting the xerox copies of defence documents is a denial of reasonable opportunity to establish his innocence. In a departmental enquiry, a person who rely on the documents, should take effective steps to produce the originals, if copy is denied to be marked for any reason. Thus, the grounds raised on that aspect also cannot be countenanced. 11. The order of the appellate authority confirming the order of dismissal was passed after affording personal hearing to the petitioner. The said order cannot be interfered with, particularly when misappropriation and loss committed by the petitioner to the bank is established during the course of the enquiry, which was accepted by the disciplinary authority as well as the appellate authority. It is well settled in law that once a charge of misappropriation is proved against a bank officer or employee in any department or organisation, who is dealing with money, the Employer will definitely loose trust and confidence on the concerned Officer or Employee and in such cases there cannot be any other punishment than dismissal, as held by the Supreme Court in the decisions of the Supreme Court reported in 2008 AIR SCW 965 (Regional Manager, Uttaranchal Road Transport Corporation v. Than Singh); 2008 AIR SCW 1901 (Uttaranchal Transport Corporation v. Sanjay Kumar Nautiyal); AIR 2009 SC 2528 (Divisional Manager, Rajasthan S.R.T.C. v. Kamruddin); and 2010 AIR SCW 3859 (U.P.State Road Transport Corporation v. Suresh Chand Sharma). https://hcservices.ecourts.gov.in/hcservices/ 12. The contention of the petitioner that there was co- signatory to most of the vouchers passed by him, it is replied that the petitioner is responsible for preparing the vouchers and the co- signatory merely signed in some of the vouchers and not in all vouchers and there is a difference in the degree of culpability and responsibility, which the bank is entitled to take note of as per the Judgment of the Supreme Court reported in (2010) 5 SCC 775 (UT of Dadra & Nagar Haveli v. Gulabhia M.Lad). Thus, the said ground raised by the petitioner is also unsustainable. 13. Therefore, I am satisfied that the punishment imposed against the petitioner is perfectly justified as no procedural violation is established and no case is made out to interfere with the impugned order on merits. 14. As regards compassionate allowance claim is concerned it is noticed that during the pendency of the appeal the Indian Overseas Bank (Employees') Pension Regulations, 1995 (hereinafter called 'Pension Regulations), came into force with effect from 1.11.1993 and it is stated in the Regulations that in deserving case, on special consideration compassionate allowance not exceeding 2/3rd of the pension can be sanctioned even to dismissed Bank employee. The appellate authority confirmed the order of dismissal by order dated 22.7.1994. However, while considering the appeal, the appellate authority has not considered the issue/claim as to whether the petitioner can be sanctioned with compassionate allowance in terms of Regulation 31(1)(ii) of the Pension Regulations, 1995, obviously with a reason that the Pension Regulations was notified only in the year 1995. 15. However, while upholding the order of dismissal passed by the disciplinary authority as confirmed by the appellate authority on 22.7.1994, I am of the view that the Bank has to consider the claim regarding payment of compassionate allowance to the petitioner under Pension Regulation No.31. The petitioner also has not submitted any representation seeking compassionate allowance to the petitioner after coming into force of the Pension Regulations, considering his employment in the bank from 9.10.1967 to 30.8.1993. Though the petitioner's dismissal order is earlier to 1.11.1993, the same was confirmed by the appellate authority only on 22.7.1994. It is an admitted fact that during the pendency of appeal and before final order was passed in the appeal, the provision for paying compassionate allowance in deserving cases on special considerations even to the dismissed employees came into force. Pension Regulation No.31 reads as follows: "31. Compassionate Allowance. (1) An employee, who is dismissed or removed or terminated from service, shall forfeit https://hcservices.ecourts.gov.in/hcservices/ his pension: Provided that the authority higher than the authority competent to dismiss or remove or terminate him from service may, if- (i) such dismissal, removal, or termination is on or after the 1st day of November, 1993: and (ii) the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered up to the date of his dismissal, removal or termination. (2) The Compassionate Allowance sanctioned under the proviso to sub-regulation (1) shall not be less than the amount of minimum pension payable under regulation 36 of these regulations." 16. In view of the above findings, the writ petition is dismissed by granting liberty to the petitioner to approach the first respondent by submitting a detailed representation seeking compassionate allowance in terms of Regulation 31(1)(ii) of the Indian Overseas Bank (Employees') Pension Regulations, 1995, which came into force from 1.11.1993, within a period of four weeks from the date of receipt of copy of this order, and it is upto the first respondent to consider the claim of the petitioner based on the said regulation considering the petitioner's 26 years of unblemished service and decide one way or the other, within a period of eight weeks from the date of receipt of representation from the petitioner. The first respondent, before deciding the said issue, is directed to call for the petitioner's service details and apply its mind pragmatically to the long years of service the petitioner rendered to the bank and pass orders on merits. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman & Managing Director, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 600 002. 2. The General Manager, Vigilance Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 3. B. Swaminathan, General Manager, Human Resources Development Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 4. The General Manager (Supervisory Section), P & A Department, Indian Overseas Bank, Central Office, 763 Anna Salai, Chennai – 2. 5. Chief Regional Manager, Indian Overseas Bank, Regional Office (Metro), 807, Anna Salai, Chennai -2 6. Senior Manager, Indian Overseas Bank, 65 Arunachala Naicken Street, Chintadripet Branch, Chennai- 2. 1 cc To M/s.Row & Reddy, Advocate, SR.83024 2 cc To M/s.Ashok Menon, Advocate, SR.82778 W.P.No.10904 of 2001 ts(co) pmk.26.11.2010. https://hcservices.ecourts.gov.in/hcservices/